Teamster, Local 70Download PDFNational Labor Relations Board - Board DecisionsJun 29, 1970183 N.L.R.B. 1330 (N.L.R.B. 1970) Copy Citation 1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda County, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (Kockos Bros., Inc.; Wisinger Trucking Service , Inc.)' and Silas F. Royster d/b/a East Bay Labor Con- sultants. Case 20-CB-2063 June 29, 1970 DECISION AND ORDER On March 25, 1970, Trial Examiner E. Don Wil- son issued his Decision in the above-entitled proceeding, finding that Respondent Union had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affir- mative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, Respondent Union and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs, and the General Counsel filed a letter and answering brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, the letter, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified herein. The Trial Examiner found, and we agree, that the Union violated Section 8(b)(1)(B) and (3) of the Act by refusing to bargain with Kockos and Wis- inger because they were represented by Silas F. Royster, the Union's ex-president. While we are not unmindful of the possible ethical problem posed by a former union official seeking or accepting a posi- tion as a representative of a company with which the union has a bargaining relationship, we find, in the absence of persuasive evidence that Royster's presence as a bargaining representative of manage- ment would result in such "ill-will ... or conflict of interest as to make good faith bargaining impracti- cal,"' that the Employers herein properly exercised their statutory right in selecting Royster as their representative for purposes of collective bargaining or the adjustment of grievances. Royster has requested that he be made whole for all "damages" sustained as a result of the Union's unlawful conduct. After finding no precedent Herein called Kockos and Wisinger 'See General Electric Company v NLRB,412F2d512(CA 2) therefor, the Trial Examiner recommended against such a remedy, but only on the narrow ground that the "damages" sought were speculative. Although we agree with the Trial Examiner that no "damages" should be awarded to Royster, we disagree with the Trial Examiner's reason for reaching that conclusion. The Union's obligation to bargain ran to the Employers rather than to Royster, and Royster himself suffered no infringement of any rights guaranteed him by the Act. Accordingly, vin- dication of the policies of the Act does not require that Royster be made whole for any loss he may have collaterally sustained as a result of Respon- dent's breach of its bargaining obligation to the Employers. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Respondent Union, Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda County, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America, its officers, agents, and represen- tatives, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER 'S DECISION STATEMENT OF THE CASE E. DON WILSON, Trial Examiner: Upon a charge filed by Silas F. Royster d/b/a East Bay Labor Con- sultants,' an individual, herein Royster, on July 24, 1969,2 and amended on July 28 and October 7 and 14, the General Counsel of the National Labor Relations Board, herein the Board, issued a com- plaint dated October 23, alleging that Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda County, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Hel- pers of America, herein the Union, had violated Section 8(b)(1)(B) and 8(b)(3) of the National Labor Relations Act, herein the Act, in its dealings with Kockos Bros., Inc., herein Kockos, and with Wisinger Trucking Service, Inc., herein Wisinger, and both employers conjunctively called the Em- ployers, in that the Union refused to bargain with either or both of them through Royster and restrained and coerced either one or both of them in selecting a bargaining representative, Royster, Name of Charging Party as amended at the hearing herein z Hereinafter all dates unless otherwise specified refer to 1969 183 NLRB No. 137 TEAMSTER , LOCAL 70 for the purposes of collective bargaining or the ad- justment of grievances. Pursuant to due notice a hearing in this matter was held before me at San Francisco, California, on January 9, 1970. The parties fully participated. Briefs of General Counsel and Respondent and a letter from the Charging Party have been received and considered. Upon the entire record in the case, including my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYERS a. Kockos is a California corporation with an of- fice and place of business in Fremont, California, and at all material times has been engaged in the wholesale sale and distribution of groceries and re- lated products. During the past year it has purchased and received, at its places of business in California, groceries and related products valued in excess of $50,000 directly from suppliers outside California. b. Wisinger is a California corporation with a place of business in Oakland, California, providing trucking services for and to commercial customers. During the past year it has provided such services valued in excess of $50,000 to nonretail customers in California who in turn purchased products valued in excess of $50,000 from suppliers located outside California. c. Kockos and Wisinger, each, at all times material, has been an employer engaged in com- merce within the meaning of the Act. II. THE LABOR ORGANIZATION At all times material the Union has been a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issue Did the Union violate Section 8(b)(1)(B) and (3) of the Act by refusing to bargain with Wisinger and Kockos because they were represented by Royster, who had been the Union's president for about 3 years, until about 2 months prior to the refusal to bargain, and the Employer's representa- tive for about 2 months? B. The Facts 1. The agency relationship to the Union of certain individuals It is admitted by the answer or otherwise 1331 established by the record that at all times material, Al N. Leishman was the Union's secretary-trea- surer; James R. Muniz was the Union's president; Robert S. Freitas was a union business representa- tive; and Charles D. Mack was a union business agent and that each was a union agent within the meaning of the Act at least for purposes material herein. 2. The appropriate units3 a. The following employees of Kockos constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act: All warehouse employees, truck drivers and helpers employed by Kockos at its operations in Fremont, California, excluding office cleri- cal employees, guards and supervisors as defined in the Act. b. The following employees of Wisinger con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of the Act: All warehouse employees, truck drivers and helpers employed by Wisinger at its operation in Oakland, California, excluding office cleri- cal employees, guards and supervisors as defined in the Act. 3. The Union's bargaining status as to the above units It is admitted that for a number of years, and at all times material, the Union has been the exclusive collective-bargaining representative of the em- ployees in each of the above-described appropriate units. 4. Requests to bargain by Kockos and Wisinger The entire record makes clear that at least since July 24, 1969, Kockos has requested the Union to bargain collectively with it, and that at least since July 22, Wisinger has requested the Union to bar- gain collectively with Wisinger, 'each through Royster. 5. Respondent's affirmative defense as to its refusal to bargain with Kockos and Wisinger since the dates alleged in the above paragraph consists in the following The Union, in its answer, admits it has refused to meet and bargain with Royster as the bargaining representative of Kockos or Wisinger, each of which chose Royster as its bargaining representa- tive. It claims that for a 3-year period ending in May, Royster had been the Union's president with access to confidential information relating to the Union's bargaining relationship with Kockos and ' Established by the pleadings 1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wisinger; Royster had continuously represented the Union in its collective-bargaining dealings with said Employers, and "is familiar with all of Respondent Union's tactics, programs and policies with respect to said employers;" and, by virtue of his former position with the Union, Royster is not entitled to recognition by the Union as a representative nor is either Employer entitled to recognition as long as Royster is its representative. 6. The facts leading up to the Union's refusal to deal with Royster as a representative of Kockos and Wisinger or to bargain with either of them or any other employer so long as Royster is a bargaining representative In its "statement of the case" in its brief, Union's counsel states "the Union's refusal followed Royster's designation as the employers' representa- tive shortly after he had vacated the office of pre- sident of the Union, and was based solely on Royster's recent occupancy of the office of Union president, and the dealings he had with the em- ployers involved' during his term of office." (Emphasis supplied.) Thus, the Union presents the narrow issue of whether a former president of a union local, may, after his defeat in his campaign for reelection, represent employers with whom the Union other- wise has a duty to bargain or, conversely, may a union -refuse to bargain with an employer under such circumstances. Royster was elected president of the Union in May 1966 and served as such until May 22 when Muniz, whom he had defeated in 1966, succeeded him. His duties as president are set forth in article VII, section 1(a), of the Union's bylaws.' As such, in the absence of the secretary-treasurer, he was to act in his capacity. He was to conduct meetings. He was to receive the same compensation as a business agent and act as such. He was also to receive specified allowances for expenses, a car, etc. While the Union, in its brief, states that the president was the "chief executive officer of the Union," it ap- pears to me from a reading of article VII, section 4, of Union Exhibit 1, that the secretary-treasurer had more real authority than the president. Royster negotiated contracts, bargained with em- ployers, discussed grievances with them, and directed the activities of business agents who at- tempted to organize employees, although he did not try to organize employees himself. He directed the activities of other union officers who might be en- 4 Kockos and Wisinger ' Union Exh I Note that these bylaws were approved by the Interna- tional with the understanding that should there be a conflict between the bylaws and the International constitution , the latter "shall prevail " The In- ternational constitution is not in evidence There is no evidence as to the presence of conflict It may be that the International constitution negates the Union 's bylaws in some or all respects Much of the above has been based on the credited testimony of Royster gaged in bargaining. He assigned agents to particu- lar employers. He directed agents how they should handle particular grievances. He sometimes negotiated grievances without the presence of a union agent. He sometimes entered into settle- ments , or "side agreements," with employers. On financial matters, he regularly kept the secretary- treasurer advised. The latter's signature was required on all documents.6 Royster was undoubtedly aware of substantially all incoming correspondence to the Union. He did not have to obtain the approval of the secretary- treasurer in his routine duties of assigning agents to negotiate contracts or settle grievances, etc. Upon his defeat for reelection as union president, Royster began operating as a labor relations con- sultant for management as East Bay Labor Con- sultants .' His first clients were Kockos and Wis- inger , as well as an employer known as Arrow Trucking. I refused evidence as to the relationship between Royster and the Union as to Arrow Trucking, which, so far as appears , may have had no employees and certainly had no bargaining rela- tionship with the Union. I now reverse such ruling, as the Union's refusal to have any dealings with Royster as a representative of Arrow was consistent with its overall refusal to deal with Royster as a bar- gaining representative of any employer, even though one with whom it had not as yet established bargaining relations.8 There appears to have been little if any bargain- ing between Wisinger and Royster when the former signed the "Me Too" agreement other than 5 to 10 minutes of conversation, a business agent named Lou Riga having previously talked to Wisinger. This short meeting between Royster and Wisinger ap- parently occurred on April 5, 1967. On or about June 20, 1967, Royster, after Secretary-Treasurer Leishman, signed a letter of agreement with Kockos, with respect to the East Bay chain grocery employers, expiring July 31. I find no probative or substantial evidence that Royster had any extensive dealings with Kockos or any of its representatives prior to his leaving his union office.' Within a very short time after vacating his office of union president, at least by very early June, Royster called the Union's business agent, Mack, and told him he was representing Wisinger, Kockos, and Arrow. Mack told Royster at that time that the Union and Wisinger had a lot of pending grievances. When Royster said he would represent Wisinger in dealing with the Union about the grievances, Mack said "okay." who impressed me as a completely honest witness 'About June I s Wisinger was a signatory to the "National Master Freight Agree- ment"-see Union Exh 2-which is a "Me Too" agreement whereby it agreed to be bound by the National Agreement expiring March 31, 1970 Kockos was signatory to the East Bay Chain Grocery Agreement by letter of agreement , the principal contract expinng on July 31 9 The same is true as to Wisinger TEAMSTER , LOCAL 70 1333 Sometime later, on June 10, Leishman wrote Royster suggesting that Royster meet as soon as possible with the Union to discuss union grievances, against Wisinger, with Mack. It may here be noted that this record is devoid of evidence that this Union, like the ILGWU in Iterna- tional Ladies' Garment Workers' Union, AFL-CIO (Slate Belt Apparel Contractors' Assn.), 10 had an established policy of refraining from bargaining or negotiating with employer's representatives who had previously held union office. The day after Leishman's letter, Mack met with Royster, Wisinger, and others in Royster's office. They discussed a list of union grievances. After discussion, Royster agreed to the merit of all the grievances but one.ii On July 1 or 2, Mack told Royster they were to meet at a joint council grievance panel on July 3, and Royster obtained some information as to the nature of the grievances.12 Before the meeting started, Royster and Mack settled one grievance in the hallway or coffee shop. At the panel meeting, Royster presented the evidence for the Employer and Mack for the Union. Before July 22 there were various grievance meetings between union representatives and Royster. Some will be particularly referred to hereinafter because, according to counsel for General Counsel, they were, in effect, an integral part of his case. On July 9 Royster spoke to Mack about the discharge of a Wisinger employee and they set up a hearing date for July 12. Royster, Wisinger, and another met with President Muniz, Mack, and others. Muniz requested a postponement of the meeting and this was agreed to. No objection was made to Royster's acting as Wisinger's representa- tive.13 The same was true as to the adjourned hear- ing which was held on July 14. Again, Muniz, Mack, and others represented the Union and Wis- inger, Royster, and others represented Wisinger. Royster was obviously the employer representative. The four panel members deadlocked and there was much discussion over the selection of an arbitrator. On the next day, the Union set up a picket line at Wisinger's place of business. Royster called Mack to discover the reason for the picketing and was told it was because Wisinger was delinquent in health and welfare payments. Royster checked and found this was true. He made full payment to Mack the next day and an hour later the picketing ceased. I credit Royster's testimony that it was not until July 22, in a phone conversation with Mack con- cerning a meeting about another Wisinger grievance, that Royster was first informed the Union would not meet with him, because of orders of Muniz and the Union's executive board." On July 24, Royster attended contract negotia- tions between the Union and the East Bay Chain of Grocers. He was representing Kockos. Various other employers were present and as one of their representatives began an opening statement, the Union's business agent, Bob Freitas, stopped the meeting and said he objected to the presence of Kockos at the meeting, because Royster was there, and the Union would refuse to bargain with Kockos or anyone else present as long as Royster represented Kockos. Kockos replied they had hired Royster as their representative and were prepared to bargain in good faith, and they would not leave. Royster said he had no intention of leaving the room. Freitas made a phone call, and then again said the Union refused to bargain with Kockos so long as Royster was in the room and that while Royster "could act as advisor to Kockos, or anyone else," Royster could not be present in the room during negotiations. After a caucus, Kockos and Royster stated they had no intention of leaving the meeting. The session with all the employers ceased when Freitas abruptly left. On July 25, Muniz wrote to Kockos, Wisinger, and Arrow, advising them, in effect, that the Union would refuse to meet with them involving labor relations issues so long as Royster represented them or one of them. He wrote a similar letter to Royster regarding Wisinger on July 25. Muniz stated that Royster, who had been the Union's president, could not deal with the Union in "an adversary capacity." There is no question but that, since July 22 or later, the Union has refused to discuss grievances or negotiate with employers represented by Royster, particularly Wisinger and Kockos.15 Of course, the Union had an obligation to bar- gain with Kockos and Wisinger. I have already noted that there was no established policy by this Union, as by the union in Slate Belt, supra, of re- fraining from bargaining or negotiating with an em- ployer's representatives who had previously' held union office. This situation was emphasized by the Third Circuit in reversing the Board in that case. I, 10 122 NLRB 1390, enforcement denied 274 F 2d 376 (C A 3) " The right of Wisinger , as owner, to operate equipment 11 This panel was composed of union and employer representatives who had no direct connection with any of the parties herein 13 On July 1 l Muniz had asked Royster, by letter, to keep him current on the names of the employers he represented On July 22, by three separate letters, Royster advised the Union , through Leishman , that he represented Arrow, Kockos, and Wisinger Prior to this date the Union had made no ob- jection to Royster acting as an employer representative 11 1 do not credit the confused and contradictory testimony of Mack that Royster was earlier advised that the Union had some question as to whether it should deal with him I particularly credit Royster's testimony that he was out of town during the last 2 weeks of June 15 I find no substantial or probative evidence that Royster expropriated confidential union files , etc , when he left his office in May I credit Royster's testimony that he left only with his own personal papers, booze, and other personal belongings I do not credit unsubstantial testimony that Royster removed or stole union papers or records when he left in May The Union at no time based its refusal to bargain on the basis that Royster had wrongfully taken union records with him when he left There never was a prior charge , excepting that which is not credited here, that Royster stole or misappropriated union records I find he left his office with only his own personal belongings 1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of course, with due respect for the court, consider myself bound by the Board's decision in that case. Also, unlike the situation here, the Third Circuit, in Slate Belt, supra, gave great weight to the fact that Slate Belt told the union there that the union representative, Mickus, had been hired because of his years of familiarity, from the inside of the union, with its strategy, thinking, working, and operations. Indeed the Slate Belt representative "tauntingly" represented to the union that they "had put one over on the Union" and had "the union on the spot." Nothing like that appears in this record. There is no probative or substantial evidence that Kockos and Wisinger did not wish to, or, had not, through Royster, bargained with the Union in ut- most good faith, and with full respect for its posi- tion as the employees' bargaining representative. In the instant proceeding there is no probative evidence that Kockos and Wisinger, as the Third Circuit found in Slate Belt, in their collective bar- gaining, through Royster, would be engaging "in form only without good faith on the other side. " There is no justification for a finding that "inten- sified distrust of [the Employers'] motives would be engendered." I find no probative or substantial evidence, as the Third Circuit found in Slate Belt, supra, that Kockos or Wisinger "displayed an absence of fair dealing." Indeed, I find the evidence to the contrary. Each, through Royster, demon- strated good faith in attempting to reach agreement with the Union in all material matters brought to my attention. Royster was not established to be a hindrance even though he was a past union pre- sident. The record is clear, based on Muniz' testimony, that in the campaign in which he was elected president, in 1969, his platform was directed against Royster's past policies. After Muniz assumed office, the board of directors, with Muniz, apparently instituted new policies of opera- tion. There is no substantive evidence that Royster was aware of these new policies, or would or could use any special or confidential information in deal- ing with the Union. Muniz used his own discretion in dealing with grievances, arbitrations, and negotiations. I find that Royster had no confidential information as to the Union's policies, etc., after he left office and was succeeded by Muniz, and secured a withdrawal card. It is obvious to me that if Royster had any con- fidential information as to union tactics, etc., he could use it just as effectively as an "advisor" as he could as a direct representative of employers. Yet the Union objected only to the latter activity and stated that it had no objection to his advising the employers he represented. The Union simply did not "want to deal directly with him. 1116 As the Board said in Slate Belt, supra, the union was "not content merely to request or seek to per- suade the employers to eliminate the selected representative, but refused to perform their statuto- ry duty of representing the employees in the settle- ment of grievances and strikes. Thus, such a withdrawal from participating in negotiations of this nature `was designed to exert some restraint or coercion ... over and above a mere attempt at per- suasion in a free market place of ideas . . . ."' This was a violation of Section 8(b)( I )(B) by restraining and coercing the employers, as well as a violation of Section 8(b)(3). Obviously, Section 8(b)(3) requires unions to bargain in good faith with employers in the proper circumstances as Section 8(a)(5) requires em- ployers to bargain in good faith with unions. As the Second Circuit held in General Electric Company v. N.L.R.B., 412 F.2d 512, an employer cannot de- mand or dictate who shall represent the union in bargaining. The same is true when a union attempts to dictate to an employer who shall represent the employer. As the court pointed out in General Elec- tric, supra, this rule is not absolute. As the court said, however, the exceptions have been "rare and confined to situations so infected with ill will usually personal, or conflict of interest as to make good faith bargaining impossible." I find no proba- tive or substantial evidence that such is the case with respect to Royster. He had no personal ill will against the Union, and no conflict of interest was established because Muniz admittedly established new policies contrary to those of Royster. As was said by the Sixth Circuit, in N.L.R.B. v. Kentucky Utilities Company, 182 F.2d 810, "The duty to bargain collectively presupposes negotia- tions carried on between the parties in good faith, with a common willingness among the parties to discuss freely and fully their respective claims and demands, and, when they are opposed, justify them on reason." There is no substantial evidence that Kockos and Wisinger, through Royster, were not ready so to act. Obviously the Union was not. In N.L.R.B. v. Kentucky Utilities, supra, it was established that the union representative had an ex- pressed hostility to the employer and intended to destroy the employer financially so that any at- tempt at good-faith bargaining would have been a futility. Nothing like that has been established here." In General Electric Company v. N.L.R.B., supra, the court pointed out: Thus the freedom to select representatives is not absolute, but that does not detract from its significance. Rather the narrowness and in- frequency of approved exceptions to the general rule emphasizes its importance. Thus in arguing that employees may not select mem- 1e To me this indicates hostility on the part of the Union and not Royster " Note that here the Union only objected to Royster's physical presence at meetings but had no objection to Royster advising the employers TEAMSTER . LOCAL 70 1335 bers of other unions "as representatives of their own choosing on a negotiating commit- tee," the Company undertakes a considerable burden . as the showing of a "clear and present danger" to the collective bargaining process. The Union in this case has failed utterly to show any such danger. Until its refusal to bargain with the Employers through Royster it apparently had excellent relations with them, through him, and he demonstrated not the slightest hostility toward the Union and demonstrated every showing of good faith and not mere lip service. The evidence demonstrates very slight former dealings between Royster as former president of the Union, and Kockos or Wisinger. There is no evidence that such was "confidential. "18 The record is bare, except for his signatures, that Royster had ever "bargained" with Kockos or Wisinger. I find that at the time of his "bargaining" for these Em- ployers with the Union there is no evidence that he had or used "confidential" union information. In any event, for about 2 months the Union knowingly and willingly negotiated successfully with Royster with no complaints. There is no suggestion that dur- ing this time Royster acted in other than good faith, or availed himself of any confidential information. If the Union had felt Royster had a conflict of in- terest with it, it would not have negotiated with him for about 2 months. Here, there was no bargaining in "form" only. The record is devoid of evidence that the Employers selected Royster as their representative to "put one over on the Union" or to take unfair advantage.19 I find that the Union by opening soliciting negotiations with Employers through Royster and by bargaining with him openly and successfully for about 2 months, clearly and unmistakeably waived any right to object to his appearance as employer representative while simultaneously agreeing to his acting as employer advisor. As the court said in General Electric, supra, the true test is the presence of an "ulterior motive." None is shown on the part of either employer in selecting Royster as representative. I find here that there is no substantial evidence that either Kockos or Wisinger, through Royster, did not intend, or failed, to negotiate with the Union in good faith, "with a common willingness among the parties to discuss freely and fully their respective claims and demands and, when they [were] opposed, justify them on reason. "20 I find no substantive evidence that these Em- ployers, through Royster, intended to give "mere lip service" to their collective-bargaining obliga- tions. With Royster acting as their representative, there is no substantial evidence that these Em- ployers could not or would not fulfill their collec- tive-bargaining obligations. There is no substantial evidence that under such circumstances they would have failed to bargain in good faith. The Union's counsel states in his brief that "At all times since July 22, 1969, the Union has main- tained its position that it would not meet with its former president as the bargaining representative of any employer with whom the Union has a collective bargaining relationship." The Union recognizes the applicability of the Board's decision in Slate Belt, supra. The Union, in its brief, refers to Royster as the "political antagonist" of Muniz. This was undoub- tedly true, but there is no substantial evidence of "hostility" to Muniz or the Union by Royster. SO far as the entire record shows, he was simply trying to earn an honest living by ethical means as an em- ployer representative. Here, unlike Slate Belt, supra, there is not sufficient evidence, probative or substantial, that Royster bore animosity toward either the Union or Muniz or any other union agent. He appears to have had open and good-faith relations with the Union and its agents. Contrary to the Union, in its brief, there is no substantial evidence that Kockos or Wisinger hired Royster "because of his years of familiarity from the inside of the Union with its strategy, thinking, working and operations." 21 In its brief, the Union here states that its refusal to deal with Royster is based "on principle, not per- sonal animosity." It asserts, in effect, that Royster was the ruling policymaker of 8,000 members and was completely familiar with union policies, inter- nal workings, etc. As I have found, Muniz un- dertook his own policies, etc., which were opposed to those of Royster and presumably were unknown to him. There is no substantial evidence that Royster was actually aware of dealings between the Union and Kockos or Wisinger or any existing grievances when he went into private business.22 The Union points to the fact that the Board regu- larly refuses to include "confidential or managerial employees in bargaining units." It then argues that to permit Royster to act as the representative of these Employers would frustrate such admirable policy.I Certainly he had been president, but he was an ex-president and so far as the record is con- cerned his prior office did not provide him with confidential information or interfere with his good- faith dealings with the Union for about 2 months. I do not agree that under no circumstances can a de- feated union president deal with the union in good It appears to have been generally formal Note that the Union refused to deal with Arrow so long as Royster was its representative, although it appears Arrow had no employees 2° See N L R B v Kentucky Utilities Company, supra 21 He was otherwise unemployed and was familiar with labor law ri Absent evidence of hostility or real conflict of interest , I see no reason why a man of experience cannot represent either or both labor and management Obviously he cannot simultaneously represent competing companies and unions or use knowledge obtained from one against the other There is no substantial evidence that, in this matter, Royster acted in other than an ethical way 23 Note that Royster was not familiar with Muntz' new policies 1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD faith. There is here no evidence of bad faith on the part of Royster. As an ex-president of the Union, with no knowledge of the new president's policies, Royster was free under our free economy to make his living any way he saw fit, including representing employers who had dealings with the Union, in which latter situation it has not been shown that he had hostility to the Union or its officers or had in- side knowledge of the new president's policies which were admittedly opposed to his, or was without "good faith" as an employer representa- tive.24 There is no substantial evidence here that, as ar- gued by the Union in its brief, Royster was "so tainted with conflict or so patently obnoxious as to negate the possibility of good faith bargaining." There is no substantial evidence of conflict or ob- noxious conduct by Royster from the time he left office until the Union arbitrarily and capriciously refused to bargain with Kockos and/or Wisinger so long as Royster represented them directly. I can only speculate that Muniz had his own personal and nonrelevant reasons for directing the Union not to deal with Royster. Certainly, no credible evidence exists that these Employers were not at all times prepared to deal with the Union in complete good faith through Royster. I find Respondent violated Section 8(b)(1)(B) and (3) by refusing to bargain with them through Royster and by restraining and coercing them in their choice of a bargaining representative, Royster. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union set forth in section III, above, occurring in connection with the Employer's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Union has engaged in cer- tain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Union has unlawfully refused to meet with and have bargaining and grievance dealings with either Wisinger and/or Kockos, through Royster, in violation of Section 8(b)(3) of the Act, pursuant to the collective-bar- gaining obligations of the Union, I shall recommend that the Union, as the collective-bargaining representative of the employees in the aforedescribed appropriate units, bargain collec- tively with the chosen representative of Wisinger and Kockos, and, if understandings are reached, embody such in signed agreements. Having found that the Union in violation of Sec- tion 8 (b)(I)(B) has restrained and coerced Wis- inger and Kockos in the selection of a collective- bargaining representative, I shall recommend that the Union be ordered to cease and desist from at- tempting to dictate to these Employers, or any other employer, whom they should choose as a representative for the purposes of collective bar- gaining , including the adjustment of grievances. Further, I shall recommend that the Union rescind its instructions to its officers and agents, not to have bargaining dealings with Royster or any other former union associate who is selected by such Em- ployers or any other employer, as its or their collec- tive-bargaining representative. The Charging Party did not file a brief but it sent me a letter with copies to the other parties, asking that the Remedy include a provision that Royster be made whole for all damages sustained as a result of the Union's unlawful conduct. I know of no precedent for this. General Counsel has not requested the same. I consider that such damages would be purely speculative and shall not recom- mend them.25 CONCLUSIONS OF LAW 1. The Employers are each engaged in com- merce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By refusing to bargain with the Employers as bargaining representative of the employees in the appropriate units, as found above, the Union has violated Section 8(b)(3) of the Act. 4. By restraining and coercing the Employers in their selection of a representative for collective bar- gaining and the adjustment of grievances, Royster, the Union has violated Section 8(b)(1)(B) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Union, its officers, agents, and representatives, shall: 1. Cease and desist from attempting to dictate to, or in any other manner restraining or coercing, Wisin^er or Kockos, or any other employer, in the selection of their representatives for the purposes of collective bargaining or the adjustment of grievances, particularly including Royster, or refus- Z' The entire record indicates complete "good faith" in his brief dealings u If they could be ascertained, I would recommend them TEAMSTER, ing to bargain with Wisinger or Kockos in good faith through Royster, or any other representative. 2. Take the following affirmative action which I find will effectuate the purposes and policies of the Act: (a) The Union will rescind its instructions to its officers and agents not to have direct dealings with Royster, or any other ex-officer of the Union, or any other representative, who is selected by any employer or employers as its or their representative for collective-bargaining purposes with the Union. (b) The Union shall bargain collectively as the exclusive bargaining representative of the em- ployees in the appropriate units upon request as found above, with the chosen representative of the Employers, and, if understandings are reached, em- body such understanding in signed agreements. The Union shall not attempt to restrain or coerce the Employers or any employer in the selection of a representative for collective bargaining with the Union. This includes the negotiation of grievances and includes Royster as well as any other represen- tative. (c) The Union will post at its business offices and meeting halls copies of the notice attached hereto marked "Appendix. "26 Copies of said notice to be furnished by the Regional Director for Region 20, shall, after being duly signed by Muniz or other president of the Union, be posted by the Union im- mediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to their members are customarily posted. Reasonable steps shall be taken by the Union to in- sure that such notices are not altered, defaced, or covered by any other material. (d) Promptly mail to said Regional Director signed copies of the Appendix for posting, the Em- ployers being willing , at the jobsites of the Em- ployers. (e) Notify the above Regional Director, in writ- ing, within 20 days from the receipt of this Deci- sion , as to what steps the Union has taken to comply herewith.27 11 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Section 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 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 Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 27 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " LOCAL 70 1337 APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT attempt to dictate to, or in any other manner restrain or coerce, Kockos Bros., Inc., or Wisinger Trucking Service, Inc., or any other employer, in the selection of its or their representatives for the purposes of collective bargaining or the adjustment of grievances, particularly including Silas F. Royster d/b/a East Bay Labor Consultants, or refuse to bar- gain with Kockos or Wisinger in good faith, through Royster or any other representative, nor will we require our agents to comply with instructions given by us to them not to bargain collectively or adjust grievances with the above-named Employers, or any other em- ployer, through Royster or any other represen- tative chosen by them, for such purposes and hereby rescind any such instructions hereto- fore given to any of our agents not to bargain collectively or adjust grievances with any designated representative of any employer with whom we have a duty to bargain, particularly Royster. WE WILL bargain collectively upon request with Kockos and/or Wisinger, or any other em- ployer with whom we have a duty to bargain, through Silas F. Royster d/b/a East Bay Labor Consultants, or any representative chosen by any of them, for purposes of collective bargain- ing or the negotiation of grievances, as the ex- clusive representative of all the employees in the appropriate units found below, particularly as to Kockos or Wisinger: The appropriate unit as to Kockos in- cludes all warehouse employees, truck drivers and helpers employed by Kockos at its operations in Fremont, California, and excluding office clerical employees, guards and supervisors as defined in the Act. The appropriate unit as to Wisinger in- cludes all warehouse employees, truck drivers and helpers employed by Wisinger at its operations in Oakland, California, excluding office clerical employees, guards and supervisors as defined in the Act. WE WILL NOT in any like or other manner restrain or coerce any employer in the selec- tion of representatives for the proposes of col- lective bargaining or the adjustment of griev- 1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ances or refuse to bargain with any employer solely because he has selected as bargaining representative a person not to our liking or merely because he has been one of our repre- sentatives. BROTHERHOOD OF TEAMSTERS AND AUTO TRUCK DRIVERS LOCAL No. 70 OF ALAMEDA COUNTY, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 13050 Federal Building, 450 Gol- den Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335. U S GOVERNMENT PRINTING OFFICE 1974 0 - 427-258 Copy with citationCopy as parenthetical citation