Teamsters Local 420

National Labor Relations Board - Board Decisions

Jan 11, 1985

273 N.L.R.B. 1381 (N.L.R.B. 1985)

TEAMSTERS LOCAL 420 1381
Building Material & Dump Truck Drivers, Local
Union No. 420, International Brotherhood of
Teamsters, Chauffeurs; Warehousemen and
Helpers of America and Mike Sullivan and As-
sociates. Case 21-CA-21452.
11 January 1985 •
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 24 August 1984 Administrative Law Judge
Gerald A. Wacknov issued the attached decision.
The Charging Party filed exceptions and a support-
ing brief, and the Respondent filed an answering
brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' The Charging Party has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are Incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to notice, a hearing with respect to this matter
was held before me in Los Angeles, California, on April
23, 24, 25, 26, and 27, 1984. The initial charge was filed
on August 2, 1982, by Mike Sullivan and Associates.
On April 29, 1983, the Regional Director for Region
21 of the National Labor Relations Board (the Board)
issued a consolidated complaint and notice of hearing al-
leging, inter ails,' a violation by Building Material &
Dump Truck Drivers, Local Union No. 420, Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Respondent or the Union) of
Section 8(a)(1), (3), and (4) of the National Labor Rela-
tions Act (the Act).
The parties were afforded a full opportunity to be
heard, to call, examine and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, briefs have been received from the General
1 The instant case was originally consolidated with an unrelated matter
(Case 21-C13-8353) which was settled prior to the heanng and was sev-
ered from the instant case at the commencement of the hearing.
Counsel, counsel for Respondent, and the Charging
Party.
On the entire record, and based on my observation of
the witnesses and consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a labor organization engaged in repre-
senting its employee-members in matters of collective
bargaining with various employers located in Southern
California. In the course and conduct of its business op-
erations, Respondent annually remits per capita dues of
its members in an amount in excess of $50,000 directly to
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, which is head-
quartered in Washington, D.C.
It is admitted, and I find, that Respondent is, and has
been at all times material herein, an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that Respondent is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issue raised by the pleadings is whether
employee Leonard Worthington, a business agent, was
laid off and/or discharged by Respondent in violation of
Section 8(a)(1), (3), and (4) of the Act.
B. The Facts
1. Worthington's reinstatement
In a prior Board proceeding2 it was determined that
Leonard Worthington, who had been employed by Re-
spondent as a business agent from August 2, 1976, had
been unlawfully terminated on June 8, 1978, by Oliver
Traweek, then Respondent's secretary-treasurer and chief
executive officer.
In 1979, during the pendency of the Board proceeding,
Worthington, who expressed an interest in running
against Traweek for the position of secretary-treasurer,
together with a group of Respondent's members, includ-
ing Richard Martino, a personal friend of Worthington,
agreed to support Martino for the position. Worthington
became a political supporter of Martino and contributed
$1000 to his campaign. The election procedure was pro-
tracted, and extended over a period of several years.
Prior to the time of the scheduled second rerun election,
Traweek was removed from office by Respondent's ex-
ecutive board because of alleged improprieties with re-
spect to Respondent's funds, and on June 1, 1981, Mar-
tino was appointed to the position. Martino had never
a Teamsters Local 420, 257 NLRB 1306 (1981).
273 NLRB No. 170
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held any union position, and his experience for the
Union's highest office was limited to driving a truck for
24 years in the rock and sand industry.
Martino was sympathetic with Worthington's unfair
labor practice claim which, at the time Martino became
secretary-treasurer, had been found meritorious by an ad-
ministrative law judge and was on appeal before the
Board. Martino had previously advised Worthington
that, as secretary-treasurer, he intended to reinstate Wor-
thington to his position as business agent and settle the
Board case. On assuming office, Martino proceeed to ter-
minate all but one of the business agents who were then
employed, and immediately hired seven additional busi-
ness agents, many of whom had previously been business
agents under Traweek's administration but had been dis-
missed by Traweek for reasons unrelated to the instant
matter.
After conferring with the Union's executive board,
which is composed of officers and trustees of Respond-
ent, many of whom are also business agents for Respond-
ent, Martino engaged in negotiations with Worthington.
On July 13, 1981, he initially offered Worthington rein-
statement and $10,000. Later that same day he offered
Worthington $30,000 on the condition that he waive re-
instatement. Worthington declined both offers. There-
upon, Martino became upset, and accused Worthington
of being disloyal and of trying to financially break the
Union which, as Worthington was advised, was in a pre-
carious financial position. Martino also advised Wor-
thington that, if he persisted in attempting to extract as
much money as possible from the Union, he would be
jeopardizing his future with the organization and cited as
of an example an individual who sued and recovered a
large sum of money from the Union and who thereby ir-
reparably damaged his political aspirations Worthington
persisted, however, and Martino told him that he was
not a good teamster and that he did not want him to
work for the Union According to Worthington, Martino
told him that if he persisted in insisting upon the full
amount of backpay 3 and the job, and got them both,
then he would be fired when he made the first mistake.
Several days later, anticipating that the Board would
affirm the administrative law judge's decision, Martino
offered Worthington reinstatement, with the apparent un-
derstanding that Worthington would receive the amount
of backpay which the Board would later determine
Worthington, sensing that various executive board mem-
bers and business agents of the Union did not want him
to return, asked Martino whether his tenure was secure.
Martino assured him that if he kept his nose clean, didn't
"screw up," and did his job, he would be in no danger of
being fired. Martino further told him that he need not
worry about his relationship with the other members of
the executive board, as Martino, not the executive board
or other business agents, possessed the authority to hire
and fire.
3 The amount of backpay, at that time, had not been determined Mar-
tino was apparently led to believe that it could be $45,000 or more, as
Worthington was apparently insisting upon reimbursement for car allow-
ances and expenses and union-related trips he would have taken had he
not been terminated Reimbursement for these items, however, was disal-
lowed
On July 15, 1981, Martino employed Mary Jo Smith, a
personal friend, as Respondent's hiring hall dispatcher,
telling her that the previous dispatcher had been termi-
nated, that he needed someone he could trust in that po-
sition, and that he wanted her to keep her eyes and ears
open and to report anything that appeared to be illegal
or wrong, particularly regarding the operation of the
hiring hall. The day before Worthington was to report to
work, about August 3, 1981, Martino told Smith that he
had been instructed by the Teamsters International to re-
instate Worthington, that Worthington had previously
been a business agent but had had problems in the past,
that he and Worthington had been personal friends but
Worthington had run against him or had planned to run
against him for office, that Worthington had rejected an
offer of $30,000 if he would waive reinstatement and was
being shoved down Martino's throat, that Worthington
was a "shady character" as he had been involved with
the dispatching procedure involving "illegal dealings,"
and that Smith was to keep an eye on him. Martino also
instructed Smith to report anything Worthington did
wrong, as Martino would then have grounds for "getting
rid of him."
Thereafter, according to Smith, Martino would check
with her several times a week regarding Worthington's
whereabouts. Smith had no problems with Worthington,
and testified that Worthington would call in regularly
and that he seemed to be doing his job properly.
The Board order affirming Worthington's unlawful
discharge issued on September 15, 1981, and in Decem-
ber 1981 Worthington was paid $16,046.01 in backpay
and interest and his severance benefit plan account was
required to be credited with $10,000, apparently the
amount that should have accumulated in his account
since his initial employment in 1976.
2. Respondent's financial condition, layoffs
The Respondent's financial condition worsened and
the month following the backpay settlement to Wor-
thington, partly as a result thereof, Martino found it nec-
essary to lay off the hiring hall dispatcher, Smith, for fi-
nancial reasons. He also implemented additional cost-re-
ducing measures, included the denial of a wage increase
to the business agents, and the laying off of the Respond-
ent's grounds maintenance man. Between March 1981
and August 1982, Respondent's treasury was depleted
from approximately $330,000 to approximately $21,000
During this time there were occasions when payroll
checks were late in being issued or employees were
asked not to deposit them immediately. The monetary
drain was attributed to former Secretary-Treasurer
Traweek's mishandling of unian funds; the adverse gen-
eral economic conditions, particularly in the construction
industry, resulting in massive layoffs of Respondent's
members and a corresponding reduction in members'
dues, the Union's primary source of income, expenses in-
volved in financing several strikes, and the settlement of
Worthington's unfair labor practice case
It is uncontradicted that Martino was advised by the
Respondent's accountant that the Union was bordering
on bankruptcy, and that it was imperative that he reduce
TEAMSTERS LOCAL 420 1383
expenses by $15,000 per month. The salary and expenses
for retaining each business agent amounted to approxi-
mately $5000 per month, and thus Martino determined
that he needed to lay off three business agents m order
to keep the Respondent solvent
Martino selected Clyde Craig, who had been assigned
to service the rock and sand employees, 4 and was the
least senior business agent Because the construction in-
dustry had been most affected by the adverse economic
conditions, Martino decided to lay off two of the three
construction industry business agents, Keith Penrod and
Worthington, and retain Charles Tanberg, the most
qualified construction business agent Martino had earlier
appointed Tanberg as coordinator to assist and oversee
the work of the other business agents, although Penrod
apparently had more seniority as a business agent or ex-
perience working in the construction industry than either
Tanberg or Worthington. Each of these three individuals
had formerly worked under Traweek's administration,
had been terminated by Traweek, and were then hired
by Martino. Martino testified that the executive board
recommended that Martino take whatever action was
necessary to cut expenses, and did not become involved
in selecting the particular employees to be laid off.
About June 18, 1982, Martino told the assembled busi-
ness agents, all of whom had previously been advised
about the layoff, that he felt the Respondent's financial
situation would Improve and that the layoff would be for
a short period of time At the meeting, Business Agent
Craig proposed an alternative plan whereby three busi-
ness agents, on a rotating basis, would be laid off for a
period of 1 week each month until Respondent's finan-
cial situation improved. Martino initially Indicated his
concurrence with Craig's agents, however, Leo Pittman,
then president of Respondent, and Art Webb, both of
whom were on the executive board, opposed the plan,5
and Pittman suggested that the matter be brought up to
the executive board. Martino testified that the matter
was discussed at an "out-of-session" executive board
meeting, and recalls that "probably three members of the
board" objected to it, and "everyone was not too happy
with the time-sharing program . . business," so the
board just moved on to other business. Apparently ob-
jections to the plan revolved around the fact that certain
business-agent related expenses are paid on a monthly
basis and thus a 1-week layoff per month would not have
permitted the Respondent to avoid these expenses. Fur-
ther, it was apparently believed that such a procedure
would not be conducive to the efficient handling of com-
plaints or problems 6
The layoff began on June 25, 1982. Because Respond-
ent's financial condition did riot improve, Penrod was
not rehired Craig was not re hired until about October
4 Respondent's business agents, when hired, were assigned to primarily
service employees within their field of expertise Thus, Martino designat-
ed business agents for the "construction" industry, the "rock and sand"
industry, and "the lumber and industrial" industries
5 Worthington testified there may have been others who objected to
Craig's time-sharing proposal
6 Arthur Webb, then a member of the executive board, testified that to
his knowledge Craig's alternate tune-sharing plan was not discussed by
the executive board
1982 when he returned on a part-time basis for 4 or 5
months. He was then put back on full-time status, appar-
ently to replace another business agent who left Re-
spondent's employ.
Mary Jo Smith, who had been laid off in January
1982, testified that on August 21 or 22, 1982, Martino
came to her home regarding an unrelated matter. Mar-
tino mentioned that he believed the economic climate
would improve in September, and that this would put
the Union back on its feet. Smith asked if that meant she
could possibly have her job back, and Martino said he
would think about it. During the course of the conversa-
tion Martino mentioned that he had laid off Penrod,
Craig, and Worthington. Martino said that he was going
to recall Penrod due to the fact that he would soon be
retiring and, on being reinstated, would be able to retire
with a higher rate of pay. He also said that eventually
Craig would be returning, but Worthington would not
Martino stated that the Union had information that Wor-
thington had been Involved in outside activities while
employed by the Union, and that this was the "bomb-
shell" they were going to drop on him in court, as he
was suing the local. 7 Martino further said, according to
Smith, "that the three of them had been laid off because
it wouldn't have looked right to have only gotten rid of
[Worthington]"
Smith testified that it was a very lengthy conversation.
Shortly after the conversation she apparently typed up
the points that she could recall and on September 7,
1982, gave a statement to a Board agent regarding the
conversation There is no mention in this statement that
Martino told her he laid off the other busmess agents in
order to make Worthington's layoff look proper.
Lon Smith, Mary Jo Smith's husband, was present
during the aforementioned conversation Lon Smith es-
sentially corroborated his wife's testimony, and testified
several times that Martino said that the three businesss
agents were laid off for monetary reasons as there was
no money left in the Respondent's treasury. He was re-
peatedly asked, on direct examination, if Martino gave
any other reason for the layoff but said that he could
recall no other reason. Finally, he was directly asked if
he recalled Martino "saying something to the effect that
he had to lay off Craig and Penrod to cover up Wor-
thington's layoff." Smith testified that, "It seems to me,
something was said that it wouldn't look good unless all
three were laid off" Martino denied that he made such a
statement during the conversation
3. Worthington's conduct
Aurora Samiano, who has been Respondent's office
manager and bookkeeper for about 15 years, testified that
a short time after the June 25, 1982 layoff, apparently
within a few days to a week or so, Martino dictated the
following memorandum to her and directed that it be
placed in Worthington's file The memo is as follows:
7 Martino was apparently referring to the instant charge which had
been filed on August 2, 1982
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 25, 1982, Leonard Worthington was laid
off for economic reasons. We no longer needed his
services as a Business Agent.
We do not wish to hire this employee back due to
the following reasons:
1. Letter sent to the Western Conference re Land-
scape agreement stating his policy on Landscape
disclaimer without the authority of the Secretary
Treasurer and because his policy was not that of
Teamsters Local 420.
2. Also reports from other Local unions that he was
in their jurisdiction on Local 420's time talking to
Landscape Companies. This report Local 692.
Curt Williams B.A. for Local 692.
3. Report from other Local Union that he was in
their jurisdiction without proper authority on
Local 420's time, Report was from Local 166,
Pete Esputo Sec. Treas.
4. Was informed many times to call in three to four
times daily and report to office, would not re-
spond to that request. .
Worthington played a significant role as a business
agent under Secretary-Treasurer Traweek's administra-
tion in organizing the employees of four or five land-
scaping companies, employing a total of approximately
100 individuals. Respondent entered into contracts with
these companies, representing their employees on a wall-
to-wall basis. When the contracts expired in 1980, Re-
spondent did not seek to negotiate successor contractors.
Rather, it disclaimed further representation of these em-
ployees on the basis of a jurisdictional settlement agree-
ment entered into with the Southern California District
Council of Laborers, whereby the landscaping employees
were to be represented along the customary jurisdiction-
al lines of the two unions. Certain landscape employees
contacted Worthington expressing their displeasure at
this course of events.
Later, in January 1981, allegedly after various locals of
the Laborers Union indicated an intention to violate the
jurisdictional agreement by attempting to organize em-
ployees of the landscape employers on a wall-to-wall
basis, Respondent repudiated the jurisdictional settlement
agreement and once again signed contracts with these
employers on a wall-to-wall basis. The contracts ex-
tended until 1983.
However, in June 1981, before Worthington was rein-
stated, Martino elected to cancel the contracts and dis-
claim interest in the employees in an effort to adhere to
the terms of the jurisdictional agreement. Martino was
aware that Worthington was very upset about this, and
talked to him on numerous occasions about the matter.
Worthington persisted in requesting that the Respondent
renew its wall-to-wall contracts, and requested Martino's
permission to talk to the employers about this. Martino
emphatically and repeatedly told Worthington not to do
this, and specifically stated that he would allow Wor-
thington to approach the employers only on the basis
that the Respondent would be willing to represent their
truckdrtvers but no other employees.
Further, Martino instructed Worthington to discontin-
ue his relationship with Mike Sullivan because it could
hurt the Union. Sullivan, an employer representative,
had represented Worthington in his prior unfair labor
practice proceeding. Also Sullivan represented the land-
scape employers throughout the course of their relation-
ship with Respondent, and had filed unfair labor practice
charges and a suit in Federal district court protesting
Martino's rescission of the contracts. On July 15, 1981,
during his conversation with Worthington regarding re-
instatement as a business agent, Martino stated that he
did not know that Worthington's relationship was with
Sullivan, but that Sullivan was causing the Union consid-
erable trouble and expense, and that he was going to
fight Sullivan and, in this regard, had a number of ideas.
Worthington told Martino that he thought it was a
shame that Martino had been "conned" into disclaiming
the landscape contracts and knew what Sullivan could
do with such a case in court. Martino according to Wor-
thington, said he did not want to talk about it further
with Worthington "because he didn't want to tell Mike
Sullivan his plans.
Following Worthington's reinstatement, on several oc-
casions Worthington told Martino that he was talking to
Larry Mayo, director of construction for the Western
Conference of Teamsters, with whom it was necessary
for Worthington to deal generally regarding construc-
tion-related matters, about getting the Teamsters to orga-
nize some of these landscape employees. Martino indicat-
ed to Worthington that, during his discussions with
Mayo or anyone else, it was not his place to formulate
an opinion counter to Martino's disclaimer. About April
1982, contrary to Martino's explicit instructions and ad-
monitions, Worthington contacted the owner of one of
the landscape employers and suggested that an affiliation
of the Respondent and an independent union, which cer-
tain landscape employees had formed, could possibly be
arranged if the employer, represented by Sullivan, would
drop its lawsuit against Respondent then pending in Fed-
eral district court. Worthington testified that the owner
appeared receptive to this proposal.
Thereafter, on April 20, 1982, Worthington sent a
lengthy letter to M. E. Anderson, International vice
president and director of the Western Conference of
Teamsters, outlining the history of the Respondent's rela-
tionship with the landscape employers. The letter, sent
without Martino's permission or knowledge, concluded
as follows:
I feel that a prudent approach to limiting our li-
ability in the lawsuits filed by these employers, and
potential lawsuits by these employees, would be to
offer the independent union and [sic] affiliation with
the Teamsters Union
I would be willing to discuss this matter with
you further and, if and when necessary, to arrange
for a meeting with all interested parties. Please feel
free to contact me at any time.
Fraternally yours,
/s/ Leonard Worthington
cc: Larry Mayo
Richard Martino
TEAMSTERS LOCAL 420 1385
Business Agent Tanberg is coordinator of the con-
struction business agents. His duties include recommend-
ing to Martino which agents should be assigned to par-
ticular areas or jobs. He has trained business agents, in-
cluding Worthington, and also is apparently responsible
for training and assisting Respondent's business agents
other than those involved in construction. He is alleged
in the complaint to be a supervisor and/or agent of Re-
spondent; however, his supervisory status was not raised
as an issue during the course of this proceeding, and the
parties appear to have agreed that Tanberg is not a su-
pervisor within the meaning of the Act. Tanberg was
called as a witness on behalf of the General Counsel. On
becoming appointed as a business agent by Martino's in-
structions in trying to organize the landscape drivers
only, under a multijunsdiction agreement with the La-
borers and apparently other unions.
Prior to sending the aforementioned April 20, 1982
letter to Anderson, Worthington showed it to Tanberg.
Worthington and Tanberg had had prior conversations
about the matter of seeking affiliation of the independent
union, which represented the employees of certain land-
scape employers, and Respondent. Tanberg asked if he
had advised Martino that he was sending the letter, and
Worthington said he was sending Martino a copy. Tan-
berg cautioned him about this approach and reminded
him that the explicit policy of Respondent vis-a-vis the
landscape industry had been established, and any devi-
ation from the policy should be cleared with the secre-
tary-treasurer. Tanberg, testifying that he possessed a
certain degree of authority in instructing the business
agents, considered it insubordination that Worthington
refused to follow this instruction. However, Tanberg fur-
ther testified that he had no authority to require that
Worthington first clear the letter with Martino. On nu-
merous occasions Tangerg reminded Worthington that
his involvement with Sullivan and the landscape industry
created a conflict with his position as a business agent
for Respondent. Worthington's response was that he
would be willing to "take the heat." Tanberg testified,
without objection, that he knew that Worthington had
not severed his relationship with Sullivan, and that he
had warned Worthington about this.
Tanberg testified that shortly after Worthington was
reinstated in August 1981, Worthington told him that he
was planning to establish an independent union for the
landscaping employees. 8 Worthington said he was the
one who was setting it up and that his brother-in-law
was one of the trustees. He asked whether Tanberg
wished to participate and Tanberg said no. Tanberg
warned him that if he persisted in such activities there
would be a day of reckoning somewhere down the road
8 An independent union was formed in 1979, composed of landscape
employees whom the Respondent, through Traweek, had disclaimed
Worthington testified at the hearing herein that he was not Involved in
the 1979 formation of the independent union which at that time had filed
a petition with the Board to become the collective-bargaining representa-
tive of the employees of one of the landscape employers in a wall-to-wall
unit However, pnor to the election, the Respondent, under Traweek, en-
tered Into the second aforementioned collective-bargaining contract, and
the independent union apparently became inactive or defunct
because Worthington's conduct in this regard conflicted
with his responsibility as a representative of Respondent.
Worthington disregarded this admonition and told him
the independent union was going to be holding elections,
and asked Tanberg if he wanted to run for office. Tan-
berg said no. Worthington said he was running for an
"executive position." On several occasions Tanberg
warned him that his involvement with the independent
union would jeopardize his position with Respondent.
Worthington said that he was doing his own thing and
there would be a position available with the independent
union if he or Tanberg got fired.
Regarding the June 25 layoff, Tanberg further testified
that Martino had consistently stated that Worthington
and the other business agents were laid off for economic
and financial reasons, and recalls that shortly after the
layoff Martino stated that Worthington was ineligible for
recall.
Tanberg was equivocal regarding his discussions with
Martino regarding Worthington's activities with the
landscape industry. Tanberg testified that he was at-
tempting to protect Worthington and would be evasive
when Martino asked about Worthington's relationship
with Sullivan, and that he covered for Worthington re-
garding this and other matters. However, Tanberg also
testified that he feared that Worthington was jeopardiz-
ing Tanberg's position because of his close relationship
with Worthington, and particularly because of Tanberg's
past involvement with the independent union prior to his
being hired by Martino. The extent of Martino's knowl-
edge of Worthington's activities, as related by Tanberg,
is unclear.
Tanberg testified that after Martino found out about
the letter to Anderson he became very upset. Tanberg,
without objection, testified that in his opinion Worthing-
ton "was on a collision course with the local and I was
just hoping that he would get some better sense and
there were things that happened that just—it seems like
Leonard would start to settle down a little bit and then
something would happen and he would go off on an-
other tangent." Tanberg also said that Worthington's in-
volvement with the landscapers after the contracts had
been rescinded and the employees disclaimed was a
direct affront to the secretary-treasurer and the local
union.
There is some discrepancy in the record regarding
whether Martino had been given a copy of Worthing-
ton's letter to Anderson before he received a call from a
representative of the Western Conference of Teamsters.
In any event, during this conversation, Martino was told
that the letter was contrary to the policy of Respondent,
the Western Conference, and various construction indus-
try agreements. Martino was further told that Anderson
was upset and wanted to discuss the letter. After this
call, according to Martino, Worthington presented him
with a copy of the letter, and Martino proceeded to rep-
rimand Worthington for his insubordinate conduct and
involvement with the landscape matter, and for sending
correspondence without his permission or even knowl-
edge. Martino advised Worthington that his conduct af-
fected the Teamsters' reputation, and was a personal em-
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
barassment to Martino. Worthington testified that Mar-
tino essentially told him that he would be unemployed if
he had "any further involvement in this landscape
thing." Worthington did not indicate that he intended to
thereafter follow Martino's instruction, but merely re-
sponded that he had not received a reply from Ander-
son.
Martino testified that he had received reports from
representatives of various building trades unions that
Worthington had been involved with the landscapers and
had been seen with Sullivan, and that these union repre-
sentatives would question Martino about Worthington's
activities. On one occasion an agent from another Team-
sters local, Kirk Williamson, asked Martino to keep Wor-
thington out of the local's geographic jurisdiction, as he
was "messing around" with landscaping companies. Mar-
tino testified that he did not recollect whether he con-
fronted Worthington regarding this complaint, but his af-
fidavit affirmatively states that he did not. Worthington,
however, testified that Martino told him that representa-
tives of the Los Angeles Building Trades Council were
questioning Worthington's loyalty to the Teamsters and
to the construction union trades.
Apparently in January 1982, Martino received a call
from Pete Espudo, the secretary-treasurer of another
Teamsters local, who requested that Martino keep Wor-
thington out of his local's jurisdiction, and advised him
that Worthington was harassing one of his companies.
When Worthington came in that day Martino asked him
where he had been Worthington replied, "Out in the
field." Martino asked him, "What field?" and Worthing-
ton did not reply. When confronted with the fact that he
was known to be in the other local's jurisdiction, Wor-
thington explained that during regular working hours he
had gone to his brother-in-law's home, located in the
other local's geographic jurisdiction, and admitted check-
ing a nearby company's compliance with the contract, as
he had nothing better to do while waiting for his broth-
er-in-law. Worthington's conduct, according to Martino,
is clearly against policy, as business agents are to remain
within their assigned jurisdiction unless otherwise in-
structed.
Worthington said that Martino confronted him about
this matter on January 11, 1982. He admitted being in an-
other local's jurisdiction where his brother-in-law, who is
an officer of the independent union, resides. While wait-
ing, he noticed a small construction company and decid-
ed to investigate compliance with the contract as the
company had six or eight trucks in the yard but the re-
porting book which Worthington carried showed that
the company employed only one driver. Thereupon,
Worthington talked to the employer and, in Worthing-
ton's words, saw fit to "rattle his cage."
Mary Jo Smith testified that the business agents were
instructed to report in three times a day, and Smith
would enter this on a daily log sheet. Smith said that she
saw Worthington almost every morning prior to his leav-
ing the hall, and that he would come in around noon-
time. He would again come in at 4 p.m. or would phone
if he was out in the field. She said she had no problem in
this regard with Worthington. However, Smith testified
that she did complain to Martino about three other busi-
ness agents who were lax in adhering to the reporting
procedure.
All the business agents with the exception of Wor-
thington, and perhaps one other agent, had radios in
their vehicles 9 and could contact Respondent's office or
be contacted at any time. Worthington had no radio in
his car and objected when Martino told him that he
wanted a radio installed in his vehicle, stating that he in-
tended to sell one or more of his vehicles. The expense
of installing a radio in $350.
Martino testified that he did not believe Smith's testi-
mony was accurate regarding Worthington's adherence
to the establish reporting procedures, and stated that the
call-in logs, which would reflect the frequency with
which the business agents reported in, have since disap-
peared from the dispatch drawer. Contrary to Smith's
testimony, Martino said that Worthington would report
to the office in the morning, and thereafter on many oc-
casions would not check in, and, because he had no
radio, Respondent would have no way of locating him.
Bookkeeper Aurora Samiano testified that she spoke to
Worthington about installing a car radio and Worthing-
ton said he did not want one because "he didn't want to
be pinpointed or didn't want anybody to know what he
was doing at all times." Samiano testified that various
office clericals in addition to Smith would receive calls
from business agents and note them in the log, and that
Worthington would not call as frequently as he was in-
structed to, and was hard to locate. Samiano testified,
without objection, that "Leonard is kind of a free spirit.
He wants to be out there and doing his own thing, and
he doesn't like to be pinned down."
Tanberg testified that he had spoken to Worthington
as well as other business agents about calling in, but that
this was an ongoing problem particularly with Worthing-
ton, and that "We were having a tremendous problem
with Leonard just not calling in. At the same time he
didn't want a radio in his car because he didn't want any
holes drilled in his car."
C. Analysis and Conclusions
Despite Martino's expressed belief that Worthington, a
political supporter, had been unlawfully discharged by
Traweek, and Martino's assurance that as secretary-treas-
urer he intended to reinstate Worthington and settle the
Board case, it is clear that Martino mistrusted Worthing-
ton and was apprehensive about reinstating him even
prior to any disagreement regarding backpay. Thus,
upon becoming secretary-treasurer in June, Martino im-
mediately hired about seven business agents, and did not
commence his negotiations with Worthington until about
mid-July. I credit Martino's testimony and find that he
was sincerely concerned with Worthington's integrity.
Thus, I find that when Worthington initially offered to
contribute $1000 to Martino's campaign fund, it was
upon the condition that, as Martino credibly testified, he
agreed to hire Worthington's mother-in-law as Respond-
ent's bookkeeper. The administrative law judge in the
9 The record is very indefinite regarding this It appears that Wor-
thington was the sole business agent without a radio
TEAMSTERS LOCAL 420 1387
prior proceeding found that Worthington should not be
disqualified from reinstatement as a result of various al-
leged improprieties during his tenure. Martino neverthe-
less believed as a result of his past association with Wor-
thington, that Worthington's trustworthiness was certain-
ly suspect and that Worthington did in fact engage in
certain improprieties which were considered in the prior
Board proceeding. The record supports the conclusion
that Martino's mistrust of Wofthington preceeded his set-
tlement and reinstatement discussions with Worthington.
Although Worthington's insistence upon full backpay ad-
mittedly upset Martino, I find that Martino's instruction
to Mary Jo Smith, upon Worthington's reinstatement,
that she carefully monitor his activities, is consistent with
and a result of this inherent mistrust rather than Wor-
thington's activity in connection with the pending Board
proceeding. Thus, Martino believed that Worthington
was a "shady character" and for this reason emphasized
that Smith carefully monitor his activities.
The financial condition of Respondent became increas-
ingly precarious and, on occasion at various membership
meetings, Martino would express his displeasure that
Worthington had received what Martino believed to be
an inordinate amount of backpay, and that Worthington's
insistence upon this amount which contributed somewhat
although certainly not extensively to Respondent's finan-
cial condition, was not compatible with being a "good
Teamster." The record shows that general membership
meetings were frequently utilized by contending or po-
tential political opponents as forums for castigating the
opposition and gaining membership support, and that
Martino perceived Worthington as a political opponent. I
do not place significant credence in any of the statements
made at these meetings. While Martino may have stated
at the October 1982 meeting that, among other reasons,
Worthington was not recalled from layoff and was dis-
charged, in part, because of the amount of backpay he
insisted on receiving and while this remark demonstrates
Martino's antipathy toward Worthington, I find that, in
view of the entire record, such a statement, under the
circumstances, is insufficient to demonstrate that this was
a motivating reason for Worthington's discharge.
It is clear and I find that Worthington directly, inten-
tionally, and knowingly, flaunted Martino's orders re-
garding the landscaping matter, and that he was instru-
mental in assisting the independent union in an effort to
promote Worthington's, rather than Respondent's, inter-
ests," despite the repeated admonitions of Tanberg, who
warned Worthington of the readily foreseeable conse-
quences. I further find that, as credibly testified to by
Martino, Tanberg, and Samiimo, Worthington was often
remiss in not sufficiently and regularly reporting his
whereabouts, and that Martino had good reason to be
particularly concerned with Worthington's whereabouts
given the rumors and information Martino had received
regarding Worthington's continued preoccupation with
the landscape matter. The credible record evidence
shows, and I find, that Worthington was indeed, as char-
acterized by various witnesses, a "free spirit" who would
10 Worthington admitted at the hearing that he received reimburse-
ment from the independent union for automobile and telephone expenses.
elect to do as he pleased, and would not hesitate to disre-
gard policy with which he disagreed.
I do not credit the testimony of Mary Jo Smith and
her husband, who testified that in August 1982 Martino
made the statement, shortly after the layoff, that the
layoff, in effect, was orchestrated merely to dismiss Wor-
thington. It is clear that throughout this conversation
Martino consistently stated that the layoffs were necessi-
tated by Respondent's financial condition. Further, had
Martino directly stated that the layoffs merely constitut-
ed an effort to get rid of Worthington, it is inconceivable
that Mary Jo Smith would not have memorialized this in
the typewritten notes of the conversation she made im-
mediately thereafter, or in her subsequent statement to
the Board. It also defies credulity, absent any plausible
explanation, that her husband would have such a faulty
recollection of this obviously incriminating statement,
and that he would not readily recall it except after being
directly asked whether this is what Martino said. Under
the circumstances, I credit Martino and find either that
he did not make the statement attributed to him by the
Smiths, or that the Smiths misconstrued Martino's mean-
ing. I further find that the layoffs were economically mo-
tivated, and that Worthington was not discriminatorily
selected for layoff because of his refusal to accept a re-
duced amount of backpay in settlement of his prior
Board proceeding.
The record shows that Martino was aware of a good
deal, although not the entire extent, of Worthington's in-
subordinate and improper conduct. While it is clear that
Martino would have had good cause to terminate Wor-
thington prior to or at least as of April 20, 1982, when
Worthington elected to send the letter to Anderson, the
fact that he did not do so until shortly after the layoffll
does not mean that Martino condoned such behavior.
Rather, it apparently occurred to Martino following the
layoff that this was a propitious time to permanently
sever Worthington's employment.
The General Counsel points out various inconsistent
lapses in Martino's testimony, and argues that this dem-
onstrates Martino's lack of credibility on material issues.
On a careful reading of the record, and noting particular-
ly Martino's testimony and his demeanor at the hearing,
I find Martino to have testified credibly regarding the
material issues in this case. The fact that his recollection
of dates or time periods or the details of particular con-
versations is sometimes faulty or incomplete, as Martino
readily admitted, does not appear to be contrived or se-
lective in an effort to distort Martino's inability to recol-
lect with precision the details or time sequences of cer-
tain events. While the General Counsel emphasized that
Worthington's discharge resulted in a large monetary
outlay to Respondent as a result of Worthington's entitle-
ment to the funds in his severance benefit account, the
record shows that such funds are required to be placed
in a separate account and are not supposed to be utilized
by the Respondent for the general business purposes. In
any event, given Worthington's extensive, blatant, and
" I find, as Martino and Samiano testified, that Martino determined
not to recall Worthington from the layoff within a week thereafter, and
prior to the time the instant charge was filed.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
persistent insubordinate behavior, it is apparent that the
expense involved in discharging him outweighed his per-
ceived value to the Respondent.
In summary, I find that even if Worthington was dis-
charged, in part, because of his refusal to accept a re-
duced amount of backpay in the underlying Board pro-
ceeding, nevertheless, the Respondent has demonstrated
that Worthington would have been discharged, in any
event, because of his failure to properly carry out his as-
signed duties and responsibilities as a business agent.
Therefore, I shall dismiss the complaint, Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982); NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act, and is also a labor organization within the meaning
of Section 2(5) of the Act.
2. The Respondent has not violated the Act as alleged.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The complaint is dismissed in its entirety.
12 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses