Teamster, Local 70

National Labor Relations Board - Board Decisions

Jun 29, 1970

183 N.L.R.B. 1330 (N.L.R.B. 1970)

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