Teamsters Local 741 (A.B.F. Freight)

National Labor Relations Board - Board Decisions

Sep 13, 1994

314 N.L.R.B. 1107 (N.L.R.B. 1994)

1107
314 NLRB No. 179
TEAMSTERS LOCAL 741 (A.B.F. FREIGHT)
1 The Respondents are collectively alleged to have violated the Act
by entering internal charges against Hathaway, subjecting him to in-
ternal union disciplinary proceedings, finding him guilty of violating
Local 741’s bylaws and the International’s constitution, imposing a
$300 fine on him, and affirming these findings. Because no party ar-
gues that either Local 741’s bylaws or the International’s constitu-
tion are unlawful or that the Respondents’ review process denied
Hathaway due process or was otherwise improper, we limit the issue
here to whether Local 741 violated the Act by instituting charges
against and fining Hathaway.
2 Sec. 8(b)(1)(A) provides that:
It shall be an unfair labor practice for a labor organization or
its agents . . . to restrain or coerce . . . employees in the exer-
cise of the rights guaranteed in section 7 . . . Provided, That
this paragraph shall not impair the right of a labor organization
to prescribe its own rules with respect to the acquisition or re-
tention of membership therein. [Emphasis added.]
3 If a union’s ‘‘rule invades or frustrates an overriding policy of
the labor laws the rule may not be enforced, even by fine or expul-
sion, without violating Section 8(b)(1).’’ Scofield v. NLRB, 394 U.S.
423, 429 (1969).
4 All dates are in 1991 unless otherwise noted.
5 ‘‘Multiple bids’’ were positions posted by an employer that in-
cluded multiple job duties. Under the new agreement, employers
Continued
Teamsters Local Union No. 741, Line Drivers, Pick-
up and Delivery, affiliated with International
Brotherhood of Teamsters, AFL–CIO and
Joint Council of Teamsters No. 28, affiliated
with International Brotherhood of Teamsters,
AFL–CIO and International Brotherhood of
Teamsters, AFL–CIO (A.B.F. Freight System)
and Larry Hathaway. Cases 19–CB–7025 and
19–CB–7170
September 13, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On March 4, 1993, Administrative Law Judge Joan
Wieder issued the attached decision. Respondents
Teamsters Local 741 and Joint Council of Teamsters
No. 28 filed exceptions and a supporting brief, the
Charging Party filed exceptions, and the General
Counsel filed a brief in support of the judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondents violated Sec-
tion 8(b)(1)(A) of the Act by, inter alia, instituting
charges against and fining Larry Hathaway, a member-
employee, because Hathaway inquired of the Employer
when a rebid would be scheduled, conduct that the
judge found was concerted activity protected under
Section 7 of the Act.1 Although recognizing that the
Board does not regulate a union’s conduct in imposing
and enforcing fines in the administration of internal
union rules when that conduct falls within the proviso
to Section 8(b)(1)(A) of the Act,2 the judge found that
Section 9(a)’s guarantee of an employee’s Section 7
right to present grievances to his employer was an
‘‘overriding labor policy’’ that constituted an exception
to that rule.3 Accordingly, the judge concluded that
‘‘[t]he Respondents’ rights under the proviso to Sec-
tion 8(b)(1)(A) [were] clearly circumscribed by Section
9(a)’’ and found the violation. For the reasons set out
below, we reverse.
The facts are fully set out in the judge’s decision.
In brief, A.B.F. Freight System (A.B.F.) is a trucking
company engaged in the transportation of dry goods
throughout North America. Rick Porter is the manager
of its Kent, Washington facility, the only facility at
issue here. A.B.F. and Local 741 are parties to a col-
lective-bargaining agreement covering the drivers at
the Kent facility. The contract incorporates by ref-
erence the Western States Supplemental Agreement
and the National Master Freight Agreement. Under the
contract, A.B.F. is required to post regular runs for bid
on a seniority basis. The contract also requires A.B.F.
to offer at least 80 percent of its employees on the se-
niority roster a guaranteed 40-hour workweek (the ‘‘80
percent rule’’). The remaining 20 percent of the em-
ployees on the seniority list work as ‘‘floaters’’ on an
as needed basis. The contract requires A.B.F. to have
a complete rebid once a year. In addition, in order to
ensure compliance with the 80-percent rule, A.B.F.
makes general adjustments to the bid when additional
employees are added to the list or laid off. Porter dis-
cusses such adjustments with the Union prior to their
posting.
In January 1991,4 Porter contacted Union Stewards
Pennington and Dibble regarding a pending bid adjust-
ment required by the contemplated layoff of several
employees. They, in turn, notified the Union. Local
741 Business Agent Rockas then contacted Porter and
negotiated a ‘‘work sharing agreement’’ whereby driv-
ers with seniority could take a week off without risk
of discipline while ‘‘floaters’’ filled in as needed.
Under this arrangement ‘‘floaters’’ could work the 40
hours a month required for eligibility for health and
welfare benefits under the contract. As a result of this
oral agreement, A.B.F. did not lay off any employees
in January.
In mid-March, Local 741 members received copies
of the tentative new National Master Freight Agree-
ment effective April 1, 1991. During his review of the
Western States Supplement to the new agreement,
Union Steward Pennington noted that there was a
change in the bidding provisions. Under the new
agreement, multiple bids, which were permitted under
the old contract, were restricted.5 A.B.F. regularly
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
could do this only if the combination of duties was essential to pro-
vide a full day’s work to the successful bidder or was otherwise
agreed to by the employer and the Union. If those conditions were
not met, the assignment was to be posted as a single position. It ap-
pears that the new restrictions on multiple bids would tend to in-
crease the number of available full-time positions.
6 In setting out the facts, we find it unnecessary to resolve the dis-
crepancies between Hathaway’s and Porter’s testimony. As the judge
found, Hathaway’s words, as corroborated by Porter, were ‘‘an in-
quiry concerning when there would be a total re-bid because several
employees were interested.’’
7 Sec. 16, Duties of Members, provides, inter alia, that ‘‘[n]o mem-
ber shall interfere with the elected officers or business agents of this
organization in the performance of their duties, and each member
shall, when requested, render such assistance and support in the per-
formance of such duties as may be required by them, provided this
does not interfere with the individual rights of the members.’’
8 These sections set out the grounds on which charges can be
brought against members. These include, inter alia, ‘‘(2) Violation
of oath of office or oath of loyalty to the Local Union and the Inter-
national Union’’ and ‘‘(5) Conduct which is disruptive of, interferes
with, or induces others to disrupt or interfere with, the performance
of any union’s legal or contractual obligations . . .’’
posted such multiple bids. Pennington informed Porter
of the change and noted that it would preclude A.B.F.
from using the multiple bid system in the future. Pen-
nington testified without contradiction that Porter re-
plied that there was no way that that was going to hap-
pen as it would put the Company out of business and
that ‘‘the only way we’d get singular bids is if [Pen-
nington] grieved it and won.’’ On April 1, Pennington
filed a grievance in an attempt to get A.B.F. to use
single bids. Local 741 would not agree to a total rebid
until the grievance was resolved.
Meanwhile, at the end of March or the beginning of
April, Charging Party Hathaway stopped by Porter’s
office and asked Porter when there would be a rebid.
Hathaway added that some employees wondered if
A.B.F. was going to rebid.6 At the time, Hathaway
held no office in the Union. Porter told Hathaway that
he would check into it and get back to him. Porter
then informed Pennington and Dibble of Hathaway’s
inquiry. The next day Pennington and Dibble told Por-
ter not to rebid and that the employees did not want
a rebid. Porter did not rebid.
On Thursday, April 18, Porter scheduled three em-
ployees for layoff. Because the 80-percent rule would
require an adjustment to the bids, Porter decided to
have a general rebid of the board at the same time.
The bid was posted on April 19. Porter laid off the
employees and rebid the board without consulting the
Union. As a result of the rebid, Pennington was one
of two employees who lost his bid. Porter rescinded
the layoffs and removed the rebid after protests from
the Union.
On April 25, Pennington wrote Local 741 to request
that formal charges be brought against Hathaway be-
cause ‘‘Hathaway took it upon himself to attempt to
personally force A.B.F. to layoff other brother team-
sters to benefit himself.’’ Pennington also charged that
Hathaway, ‘‘without union representation or sanction,’’
went to Porter ‘‘to cause harm to other union members
and undermining [sic] an agreement that Steward[s]
Dibble and [Pennington] had made with Dick Porter to
keep our Teamster Brothers from being laid off.’’ Pen-
nington concluded by asserting that Hathaway’s ac-
tions had ‘‘caused considerable financial hardship to
our brothers on the bottom of the board,’’ and that
Hathaway ‘‘need[ed] to call for a stewards election or
stay out of [Porter’s] office.’’
After a hearing at which Hathaway chose not to ap-
pear, Local 741 found that Hathaway had violated arti-
cle II, section 16 of its bylaws,7 article XIX, section
6(b), paragraphs (2) and (5) of the International’s con-
stitution,8 and Local 741’s oath, which provides ‘‘I
. . . will never from self motives wrong a brother, or
see him wronged if in my power to prevent it.’’ Local
741 fined Hathaway $300. Hathaway paid the fine
under protest and appealed the decision. In November
1991, Joint Council 28 affirmed Local 741’s imposi-
tion of the fine and in May 1992 the International’s
general executive board upheld Joint Council 28’s de-
nial of Hathaway’s appeal.
As an initial matter, we agree with the judge that
Hathaway was engaged in concerted activity protected
under Section 7 of the Act when he inquired of Porter
when a rebid would occur. Thus, the issue here is
whether the Respondents violated Section 8(b)(1)(A)
by filing charges against and disciplining Hathaway for
engaging in activity protected under Section 7. As the
judge found, the outcome depends on whether the
Union’s action was protected under the proviso to Sec-
tion 8(b)(1)(A). In analyzing the interplay between
Section 8(b)(1)(A) and its proviso, we observe that the
Supreme Court in Scofield v. NLRB, 394 U.S. 423, 428
(1969), noted in its analysis of the same section of the
Act that:
the Court in NLRB v. Allis-Chalmers Mfg. Co.,
388 U.S. 175, 195 (1967), distinguished between
internal and external enforcement of union rules
and held that ‘‘Congress did not propose any lim-
itations with respect to the internal affairs of
unions, aside from barring enforcement of a
union’s internal regulations to affect a member’s
employment status.’’
The Scofield Court went on to observe, however, that
‘‘it has become clear that if the [union’s] rule invades
or frustrates an overriding policy of the labor laws, the
rule may not be enforced, even by fine or expulsion,
without violating Section 8(b)(1).’’ Id. at 429. In con-
cluding its analysis of this section of the Act, the
Court stated:
1109TEAMSTERS LOCAL 741 (A.B.F. FREIGHT)
9 Distillery Workers Local 186 (E & J Gallo Winery), 296 NLRB
519 (1989) (Chairman Stephens concurring).
10 As the Board explained in Boilermakers, supra at 220 fn. 7:
‘‘The Sec. 7 right of seeking access to the Board is fundamental in
the sense that all others are dependent on it. If the employee cannot
come to the Board, he cannot vindicate any of his rights.’’
11 In this regard, we disagree with the judge’s finding, set out
above, that the proviso to Sec. 9(a) inevitably elevates an employ-
ee’s right to present grievances to his employer into an ‘‘overriding
labor policy.’’ As the Board has found, Sec. 9(a) establishes no pro-
tected right. See Colonial Stores, 248 NLRB 1187, 1188 fn. 7
(1980), where the Board stated ‘‘that Sec. 9(a) of the Act does not
confer on employees a protected right to present grievances individ-
ually to an employer. . . . The right is conferred by Sec. 7 and pro-
tected by Sec. 8(a)(1).’’ See also Black-Clawson Co. v. Machinists,
313 F.2d 179, 185 (2d Cir. 1962), where the court explained that
by the proviso to Sec. 9(a) Congress meant to confer on employees
not a protected right, but the ‘‘privilege’’ to approach employers on
personal grievances. As the court went on to explain, the proviso’s
Continued
Under this dual approach, § 8(b)(1) leaves a
union free to enforce a properly adopted rule
which reflects a legitimate union interest, impairs
no policy Congress has imbedded in the labor
laws, and is reasonably enforced against union
members who are free to leave the union and es-
cape the rule. [Id. at 430.]
Applying this analysis here, we turn first to whether
the Respondents ‘‘enforce[d] a properly adopted rule
which reflects a legitimate union interest’’ as Scofield
requires. In finding that they did, we emphasize ini-
tially that ‘‘the mere fact that the discipline is in re-
prisal for a Section 7 right is not sufficient to condemn
the discipline.’’ Boilermakers (Kaiser Cement), 312
NLRB 218, 220 (1993). Thus, in NLRB v. Allis-
Chalmers, Mfg. Co., 388 U.S. 175 (1967), the Supreme
Court held that a union could fine employee-members
for exercising the Section 7 right to cross a picket line
during a strike. As the Board explained in Meat Cut-
ters Local 593 (S & M Grocers), 237 NLRB 1159,
1160 (1978):
The Supreme Court in Allis-Chalmers recognized
that the right of collective bargaining is a para-
mount policy of national labor law, and that in
order for a union to fulfill this obligation it must
be able to promulgate its own rules and have the
right to impose reasonable discipline on members
who do not obey such rules. The Court further
found that integral to this policy is the union’s
right to protect itself against the erosion of its sta-
tus of collective-bargaining representative by rea-
sonably disciplining members for violating inter-
nal regulations.
Here the Respondents sought to enforce rules that re-
quired members not to interfere with their elected offi-
cers in the performance of their duties and not to
wrong their fellow members ‘‘from self[ish] motives.’’
We find that such rules were reasonably designed to
prevent ‘‘the erosion of [the Respondents’] status of
collective-bargaining representative.’’ When the Em-
ployer posted the April 19 bid and laid off several em-
ployees, Local 741 officials believed that Hathaway’s
rebid inquiry occasioned the bid and caused the Em-
ployer to break the work-sharing agreement with the
consequent layoff of several employees. In addition,
Hathaway’s inquiry—which suggested by its reference
to other employees that he represented unit employee
sentiment—undermined Pennington’s tactical decision
to withhold agreement for any rebid until the grievance
over the Employer’s use of multiple bids was resolved.
Thus, Local 741 reasonably believed that Hathaway’s
conduct undermined its efforts on behalf of the bar-
gaining unit employees and was ‘‘inimical to the union
as an entity and collective-bargaining mechanism.’’9 In
sum, we find that Hathaway engaged in conduct for
which Local 741 could lawfully discipline its own
members provided that that conduct was not protected
by some ‘‘overriding policy of the labor laws.’’
Under the second prong of the Scofield analysis, a
union rule ‘‘impairs . . . a policy Congress has
imbedded in the labor laws’’ where the rule conflicts
with an overriding public policy and seeks to coerce
or discourage conduct that is beyond the legitimate in-
terest of the union. Thus, in NLRB v. Marine Workers,
391 U.S. 418, 424 (1968), the Court found that the re-
spondent union violated Section 8(b)(1)(A) by expel-
ling a member for filing charges with the Board before
he had exhausted internal union appeal procedures. In
reaching this conclusion, the Court found that
unimpeded access to the Board was ‘‘an overriding
public interest’’ and that ‘‘[a]ny coercion used to dis-
courage, retard, or defeat that access is beyond the le-
gitimate interests of a labor organization.’’10 Similarly,
in Pattern Makers League v. NLRB, 473 U.S. 95, 104–
107 (1985), the Court upheld the Board’s finding of an
8(b)(1)(A) violation where a union rule prohibiting res-
ignation during a strike resulted in fines being levied
against strike-breaking members who resigned from
the union prior to returning to work. The Court agreed
with the Board that restrictions on the right of a mem-
ber to resign from the union at any time violated ‘‘the
policy of voluntary unionism’’ embodied in Section
8(a)(3). Thus, employee-members must have the right
to resign from the union and thus escape the applica-
tion of its rules.
Although we agree with the judge that Hathaway’s
conduct in inquiring of Porter when a rebid would
occur was protected by Section 7 of the Act, as ex-
plained above under Scofield the fact that an em-
ployee-member engages in conduct protected by Sec-
tion 7 does not necessarily immunize the employee-
member from internal union discipline.11 Contrary to
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
purpose is to protect an employer from 8(a)(5) charges when it vol-
untarily processes an employee grievance at the behest of the indi-
vidual employee.
12 As explained above, employee-members have a right to resign
from the union and escape its rules. ‘‘If they resign prior to engag-
ing in the Section 7 conduct deemed offensive by the union . . . the
union cannot discipline them. If they have opted for continued mem-
bership, they cannot be heard to complain if the union enforces the
rules of membership.’’ Boilermakers, supra at 220.
1 All dates are in 1991 unless otherwise indicated.
2 Respondents admitted, for purposes of this case only, the allega-
tion that Respondent Joint Council 28 is a labor organization under
the Act.
3 As here pertinent, the predecessor collective-bargaining agree-
ment, including the National Master Freight Agreement and Western
States Area Supplemental Agreements, effective April 1, 1988,
through March 31, 1991, contain similar provisions.
the judge, we find that Hathaway’s right to inquire
when a rebid would occur was not grounded in such
an ‘‘overriding policy of the labor laws’’ that no coun-
tervailing rights or policies may be balanced against it
to limit its application. Indeed, because protection of
an employee’s right to cross a picket line is not an
‘‘overriding policy’’ (Allis-Chalmers), it is difficult to
understand how protection of an employee’s mere in-
quiry into rebidding would somehow be elevated into
an ‘‘overriding policy.’’ Rather, in both situations, the
Union is free to defend itself against employee-mem-
bers who act to undermine its authority. In these cir-
cumstances, there exists ‘‘a legitimate union interest in
preventing the erosion of its status as collective-bar-
gaining representative.’’ Boilermakers, supra at 219.
Accordingly, we distinguish the Section 7 right at issue
here from the other rights discussed above and con-
clude that the Respondents’ disciplining of Hathaway
did not unlawfully contravene any public policy
‘‘imbedded in the labor laws.’’
Finally, we note that, as Scofield requires, Hathaway
was free to resign from Local 741 at any time and then
request a rebid or take other action after he had given
up the benefits and obligations of union membership.12
Moreover, the Union’s action of fining Hathaway did
not affect the latter’s employment status. For all these
reasons, we find that the Respondents did not violate
Section 8(b)(1)(A) as alleged and shall order that the
complaint be dismissed.
ORDER
The complaint is dismissed.
Michael Hurtado, Esq., for the General Counsel.
Ken Pedersen, Esq., of Seattle, Washington, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. This case was
tried on July 9, 1992,1 at Seattle, Washington. The charge
was filed in Case 19–CB–7025 by Larry Hathaway, an indi-
vidual (the Charging Party or Hathaway), on October 10,
1991, and amended on December 5, 1991, against Teamsters
Local Union No. 741, Line Drivers, Pickup and Delivery, af-
filiated with International Brotherhood of Teamsters, AFL–
CIO (Local 741) and Joint Council of Teamsters No. 28, af-
filiated with International Brotherhood of Teamsters, AFL–
CIO (Joint Council 28). The charge in Case 19–CB–7170
was filed by Hathaway on May 27, against the International
Brotherhood of Teamsters, AFL–CIO (International). The
International, Joint Council 28, and Local 741, are collec-
tively and respectively referred to as Respondents. On April
14, 1992, the Regional Director for Region 19 of the Na-
tional Labor Relations Board issued a consolidated complaint
and notice of hearing against Local 741 and Joint Council 28
alleging they violated Section 8(b)(1)(A) of the Act. On June
10, 1992, an amended complaint was issued alleging the
International, as well as Local 741 and Joint Council 28 vio-
lated Section 8(b)(1)(A) of the Act.
Respondents’ timely filed answers to the complaint, as
amended, admit certain allegations, deny others, and deny
any wrongdoing.
All parties were given full opportunity to appear and intro-
duce evidence, to examine and cross-examine witnesses, to
argue orally, and to file briefs.
Based upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
posthearing briefs, I make the following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondents’ answers to the complaint, as amended, and
stipulations entered by the parties admit, and I find, A.B.F
Freight System meets one of the Board’s jurisdictional stand-
ards and that Local 741, Joint Council 28,2 and the Inter-
national are statutory labor organizations.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Much of the evidence is undisputed. A.B.F. is a trucking
company engaged in the transportation of dry goods through-
out the United States, Canada, and Mexico with a facility in
Kent, Washington. The Kent facility is engaged solely in the
local pickup and delivery of freight and is managed by Rick
Porter. A.B.F. has a collective-bargaining agreement with
Local 741, which is included in the Western States Supple-
mental Agreements and National Master Freight Agreement,
effective for the period of April 1, 1991, through March 31
1994.3
Respondents admitted at all material times, Larry Weldon
held the position of secretary-treasurer for Respondent Local
741 and was an agent of Local 741, Tom Sever was general
secretary-treasurer of Respondent International, and Arnie
Weinmeister was the president of Respondent Joint Council
No. 28 and was Joint Council 28’s agent under the Act. Re-
spondents deny the Local 741 shop stewards at A.B.F., Rob-
ert Pennington and Mike Dibble, acted on Respondents’ be-
1111TEAMSTERS LOCAL 741 (A.B.F. FREIGHT)
4 The employees who are in the top 80 percent in seniority, can
elect to be floaters, they are not required to bid for a job that has
the 40-hour guarantee.
5 Porter gave his understanding of the bidding procedure as fol-
lows:
We’re required to bid a certain amount of positions based on
the number of people we have on our seniority roster annually,
one time per year which, for our facility, it falls in November.
If there is any change to our seniority board, or with mutual
agreement between the company and the local, we can re-bid or
make adjustments to the bid throughout the year. . . .
JUDGE WIEDER: That’s based only if there are changes in the
seniority roster?
THE WITNESS: It’s based on changes to the seniority roster or
by mutual agreement. In other words, either the company or the
union can request that a re-bid be done. It’s got to be mutually
agreed upon.
JUDGE WIEDER: And is there any limit to the adjustments
based on changes in the seniority roster?
THE WITNESS: To my knowledge, no. You know, we’re re-
quired by the contract to bid one time per year. So there is a
minimum requirement. But maximum, I don’t believe there is.
6 The bidding sheet is referred to as the board, and when a senior
employee chooses not to bid for a particular job, it is caller ‘‘peg-
ging the board’’ and/or ‘‘shooting the board.’’
7 In addition to requesting rebids, employees have talked to man-
agement about safety matters, which the Company has acted upon
without consultation or approval from the Union. Shortly before the
hearing in this proceeding, Respondent Local 741 and A.B.F. agreed
to the formation of a safety committee. The safety committee was
formed 1 to 2 weeks before the hearing. Employees have also come
to Porter to adjust pay without seeking the assistance or prior ap-
proval of the Local 741 stewards. There is no claim the collective-
bargaining agreement requires such prior approval.
8 Porter understood layoffs to require a total rebid. Rockas testified
the employer could just drop one bid from the board and let the af-
fected senior employees adjust their bids accordingly; resulting in
what he described as a ‘‘bump and roll process’’ which did not re-
quire a bidding sheet. There is no refutation of Porter’s testimony
that he acted in good faith based on his understanding of the bidding
process requiring rebidding when he laid off three employees. Re-
spondents did not file a grievance when he laid off three employees
in April, as discussed in greater detail below.
half and are agents within the meaning of Section 2(13) of
the Act.
The Western States Area Supplemental Agreement con-
tains the following job bidding procedure:
Regular runs and positions, except ‘‘House’’ accounts
of ‘‘contract’’ accounts, shall be posted for bid on a se-
niority basis. Such posting shall be at a conspicuous
place so that all eligible employees may receive notice.
In the case of multiple bids, the primary bid will be the
first listed. There shall be at least one general bid each
year within each Local Union’s jurisdiction and there
may be additional bids, where business or operating
conditions warrant. Disputes as to bidding may be sub-
mitted to the grievance procedure. All temporary posi-
tions of twenty-eight (28) days or longer duration will
be posted for bid purposes.
In November 1990, A.B.F. conducted it’s annual job bid-
ding among the drivers. Bidding order is principally based on
seniority, considering classification. The collective-bargaining
agreement also contains an ‘‘eighty percent (80%) rule’’
which requires the employer to offer at least 80 percent of
its employees on the seniority roster a guaranteed 40-hour
workweek. The remaining 20 percent of the employees on
the seniority list (called ‘‘twenty percenters’’ and/or ‘‘float-
ers’’)4 do not have a 40-hour workweek guarantee, do not
have regularly assigned jobs but work on an as needed basis,
including as ‘‘fill-ins’’ for the regularly assigned employees.5
The employer sets the start times for the jobs listed on the
bidding sheet.6
Prior to November 1990, A.B.F. conducted a job bidding
in July 1990. According to Porter, an employee, Jerry Crain,7
requested the bid because A.B.F. had worked some floaters
5 consecutive days and A.B.F. needed ‘‘to add a bid.’’ Porter
replied no. Then Steward Pennington and Local 741 Business
Agent Spero Rockas talked to Porter. Pennington informed
him ‘‘we had worked unassigned people on a set start time
for five consecutive days. And by terms of the contract, we
were required to add an additional start time at that time.’’
Porter did not initiate the job bidding after this conversation,
only after Rockas informed him A.B.F. ‘‘was not within the
terms of the contract’’ did Porter post another bid sheet.’’
Another bid was requested by Rockas and posted by A.B.F.
in July to comply with the 80-percent rule. This second July
bidding was called an adjustment to the bid. Theses bids
were posted with copies sent to Local 741. Thus, in 1990,
A.B.F. conducted at least three bids, two of which were par-
tial rebids and the third, in August, was a complete rebid of
the seniority list.
According to Porter’s uncontroverted testimony, A.B.F.
and Local 741 always discussed bidding prior to any A.B.F.
posting of bids. Generally, Porter discussed the addition or
deletion of a bid with the union stewards prior to any post-
ing. After the annual November bidding, A.B.F. had an ad-
justment to the bid because the Employer added two employ-
ees and needed to comply with the 80-percent rule. In Janu-
ary 1991, A.B.F. had another adjustment to the bid. After the
Christmas holiday, business is usually slow. Porter contacted
the Local 741 stewards prior to posting this bid. Adjustments
to the bid are usually necessitated by layoffs and additions
to the staff covered by the collective-bargaining agreement.8
The seasonal lull in business and the loss of ‘‘a couple of
large accounts,’’ prompted Porter to inform the Local 741
shop stewards he may be forced to lay off employees. Ap-
parently the stewards informed the Union, for according to
Rockas:
We had an agreement, verbal agreement in January
when the company called us and said that things were
getting slow and they were going to have to lay some
people off. So I went down to the company and got
with the stewards, Mr. Pennington and Dibble, and
went in and talked to Mr. Porter. And we mentioned
the fact that we have a lot of senior people that would
like to have some time off without being disciplined
under the contract, and if they would be willing to take
time off a week at a time, two days, one day, whatever
it is, and they could use these junior people to work to
fill in. And he said that he would go for that. And it
worked real fine. There were guys that were taking up
to two weeks or better off.
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 The provision in the tentative agreement provided:
There shall be no multiple bids unless such bids are for the
exclusive purpose of providing a full day’s work, or unless such
bids are otherwise mutually agreed to. However, where there is
normally sufficient work to justify a single classification bid,
that bid may not be posted as a multiple bid.
It is uncontroverted that the Local 741 stewards were part of
these negotiations for this ‘‘work sharing’’ program. It is
also uncontroverted that Hathaway was aware of the ‘‘work
sharing arrangement.’’
A.B.F. and Local 741 implemented this proposal which
protected the less senior employees who needed to work 40
hours a month to be eligible for health and welfare benefits
paid by the employer. Under this verbal agreement, Rockas
admitted, A.B.F. could still elect to lay off employees and
‘‘then the agreement would kind of be down the drain.’’
There is no claim a decision by A.B.F. to lay off employees
would violate the Act.
In mid-March 1991, members of Local 741 received cop-
ies of the tentative new National Master Freight Agreement
which was to become effective on April 1, 1991. Pennington
noted during his review of the Western States Supplement to
the tentative agreement that there was change in the bidding
provisions. In the then current agreement, ‘‘multiple bids’’
were permitted, thus the employer could post for a bid posi-
tion which included multiple job duties. The tentative agree-
ment restricted multiple bids.9 Many of the positions histori-
cally posted by A.B.F. were ‘‘multiple bid’’ jobs; all the po-
sitions posted at A.B.F. for the November 1990 rebid were
‘‘multiple bid’’ jobs.
Pennington informed Porter of the new bidding provisions
and opined it would preclude A.B.F. from posting ‘‘multiple
bid’’ jobs in the future. Porter disagreed and Pennington un-
derstood A.B.F. would continue the practice of posting
‘‘multiple bid’’ jobs. Local 741 subsequently conducted
meetings of its members on March 23, 24, and 25, 1991, to
explain the changes in the provisions of the National Master
Freight Agreement. According to Hathaway, he probably at-
tended the March 23 meeting. Pennington claims he raised
the ‘‘multiple bid–single bid’’ matter at this meeting. The na-
ture of this discussion was not detailed on the record. Pen-
nington only testified ‘‘[i]t was a subject that I brought up.’’
On the effective date of the new collective-bargaining agree-
ment, April 1, 1991, Pennington filed a grievance in an at-
tempt to ‘‘get singular bids.’’
B. Events Involving Larry Hathaway
Hathaway is a pickup and delivery driver for A.B.F. and
has been employed by the Company for about 3 years. From
May 1976 until January 1980, Hathaway was elected as a
trustee for Local 741 and he was a business agent with Local
741 for about 4 years. Since 1980, Hathaway has not held
any office with Local 741. During the November 1990 bid-
ding, Hathaway, although eligible to bid on a position which
guaranteed him 40 hours’ work per week, elected to become
a casual employee, being called for work only when needed
by A.B.F. Hathaway also worked for United Parcel Service
on weekends.
1. Hathaway’s talk with Porter
In late December 1991 or early January 1992, Hathaway
discussed with Everett Penfold and Terry Cannata their re-
spective wishes to change their bids. Penfold wondered why
there were no bids for a long period and he ‘‘wondered why
one hadn’t been posted.’’ Penfold and Hathaway ‘‘discussed
talking to the supervisors about it.’’ Penfold wanted to
change shifts. Penfold said he would try to talk to Porter
about posting bids. According to Penfold, he and Hathaway
‘‘had kind of mutually agreed that we would ask Mr. Porter
to post the bids. . . . Individually.’’ Since Penfold was
working an evening shift, he does not believe he had an op-
portunity to ask Porter about posting bids. Porter works dur-
ing the day and Penfold rarely sees him.
After the conversations with Penfold and Cannata, Hatha-
way went to Porter’s office and ‘‘asked him are we going
to re-bid soon, or when are we going to re-bid, because sev-
eral employees had asked me, that they wanted to change
shifts. And I was asking not for myself, but for them, real-
ly. . . . I said something to the effect that yes, other drivers
want to change shifts or want to change their bids too, you
know, and I was just asking for when we might re-bid.’’ In
reply, according to Hathaway:
Porter said something about he might have to layoff, or
something to that effect, or that he had pressure to be
laid off. And so, you know, I don’t know. He says, ‘‘If
I have to layoff, I will have to re-bid,’’ or something
like that, you know.
At the time of this conversation, Hathaway did not nec-
essarily want to stop being a ‘‘floater,’’ his opting to select
a bid depended on what was available when it was his turn
to select a start time, he did not want to work the swing or
graveyard shifts. Respondent avers Hathaway should not be
believed for he wrote the Joint Council 28 on May 14, 1991:
Free speech is protected by federal law, including the
LMRDA, as well as our union constitution and the con-
sent order in USA v. IBT.
For your information, my conversation with manage-
ment was limited to pointing out that since the return
of two employees from long term disability, the work
opportunity had diminished and a re-bid was called for.
Beside myself, Everett Penfold, Terry Cannata, Chuck
Socha and possibly others wanted to re-bid, however,
Robert Pennington chose not to represent out interests.
At that point, the manager informed me that he was
under pressure from his boss to layoff the bottom driv-
ers. I at no time asked him to lay off anyone. Nor did
I at anytime offer any information that could lead to
disciplinary action against anyone. My conversation
with the manager occurred two to three weeks prior to
the layoff. I was a steward for over twelve years and
tried to represent all drivers not just my friends and ig-
nore the others as Mr. Pennington chooses to do.
Hathaway explained the apparent inconsistency between
his testimony and this letter by stating he did not mention
the return of employees from disability during his conversa-
tion with Porter, ‘‘but that was my justification for it, for the
re-bid, in my own mind.’’ Hathaway’s testimony is credibly
1113TEAMSTERS LOCAL 741 (A.B.F. FREIGHT)
10 On cross-examination, Porter recalled Hathaway inquiring:
Hey, boss, when are you going to re-bid? Some guys are talk-
ing about it.
Q. And I think you said that you asked him—correct me if
I’m wrong—but did you testify that you asked him, ‘‘Well, why
do you want a re-bid?’’
A. Yes.
Q. And what did he say to that?
A. Some of the guys were wondering when we were going
to re, wanted a rebid. . . .
Q. Did he identify the guys?
A. I can’t be for certain. He had mentioned Everett Penfold’s
name.
11 In his affidavit, which Porter opined was probably correct, he
recalled the conversation as follows: ‘‘Hathaway came into my of-
fice and said words to the effect, ‘A couple of the guys are not
happy with the current bid system. It’s slow’ (meaning work).
‘When are we going to re-bid?’’’
12 If A.B.F. laid off three employees, it only had to have 16 bid
positions and Hathaway was number 17 in seniority. When Porter
posted the rebid in April, he posted 17 positions, 1 more than re-
quired by the contract. There was no evidence the additional position
was added to favor Hathaway or any other employee. Further, there
was no evidence Hathaway knew he would be eligible to bid for a
position in the event of a layoff.
corroborated by Porter. According to Porter, Hathaway did
not mention the return of two employees from long-term dis-
ability during their conversation nor did he say ‘‘the work
opportunity had diminished and a re-bid was called for.’’
Further, Porter testified he would normally see and con-
verse with Hathaway daily, and during one of these con-
versations at the end of March or beginning of April:
To the best of my recollection, I was at my desk and
Mr. Hathaway had come in in the morning or afternoon
and stuck his head in the door and he said, ‘‘Boss,
when are we going to re-bid?’’ And I looked at him
and I said—I can’t remember if I said why do you ask.
I remember that Larry had said some people were won-
dering if we were going to re-bid. And I told him that
I would check it out and I would get back with him.
Q. Was that the only conversation you had with Mr.
Hathaway about the re-bid?
A. Yes.10
Porter further testified Hathaway did not say why he or
any other employee wanted a rebid. Porter did not know why
Hathaway or any other employee specifically wanted a
rebid.11 There is no evidence or claim Hathaway indicated
he wanted to accept a bid rather than remain a floater.
Hathaway was number 17 in seniority, which, at the time,
placed him almost at the bottom of the seniority list as one
of the last employees with an opportunity to bid on a job
with a 40-hour-a-week guarantee. As indicated above, Hatha-
way testified he would not accept all bids, only a daytime
bid. There is no evidence of record to contradict him. Porter
also testified Hathaway did not ask him to post a bid, he
merely inquired when A.B.F. was going to rebid the board.
According to Hathaway’s uncontroverted testimony, two
employees with sufficient seniority to hold bid positions,
Jerry Crain and Henry Spellman, had returned to work after
several months or more absences for disabilities. Crain had
a bid position and Spellman ‘‘was slotted in,’’ resulting in
less work for the floaters. There was no evidence concerning
when employees on long-term disability are afforded the op-
portunity to bid. Hathaway said he did not talk with the
Local 741 stewards before talking with Porter about a rebid,
admitting candidly that he did not ‘‘get along with Mr. Pen-
nington. We don’t talk.’’ Hathaway also admitted knowing
about the work-sharing agreement at the time of his con-
versation with Porter.
Hathaway recalled Porter informed him, during this con-
versation ‘‘I may have to layoff and re-bid because of that
. . . he was under pressure from his boss to layoff the bot-
tom drivers.’’12 Porter could not recall making this comment
but corroborated the remainder of Hathaway’s testimony con-
cerning this conversation, particularly Hathaway’s words,
which were merely an inquiry concerning when there would
be a total rebid because several employees were interested.
Further, Porter admitted he was under pressure from his boss
to layoff employees.
I credit Hathaway’s testimony as credibly corroborated by
Porter. Hathaway’s recitation of events was accomplished
with considerably persuasive detail, he gave the strong im-
pression he was making an honest attempt to accurately re-
call the facts. His testimonial demeanor was good, he ap-
peared plausible and convincing. While Porter admitted to
lapses in memory, he appeared to be honest and forthright.
Porter has no interest in the outcome of these proceedings
and he testified prior to Hathaway. Based on his open de-
meanor, I credit his testimony.
Porter informed Hathaway he would ‘‘check it out and I
would get back with him.’’ Porter never discussed a rebid
with Hathaway again. Porter then informed the Local 741
stewards some of the employees wanted a rebid. The stew-
ards asked ‘‘Well, where did you hear that from?’’ Porter re-
plied, ‘‘Well, I heard from Larry Hathaway,’’ and the stew-
ards said, ‘‘Well, we’ll check into it and we’ll get back with
you.’’ The following day the stewards informed Porter ‘‘not
to re-bid,’’ that the employees did not want a rebid. This
conversation with the Local 741 stewards occurred in late
March or early April, according to Porter.
About 10 days after speaking to Porter, Hathaway was ap-
proached by Pennington, who said: ‘‘By the way, there isn’t
going to be any re-bid.’’ Hathaway did not reply to this com-
ment. About 1 week after Pennington’s comment to Hatha-
way, Dibble told Hathaway ‘‘that I should—of all people, I
should know that I had no right to go to the terminal man-
ager. I should stay out of the terminal manager’s office.’’
There was no evidence Hathaway or any other employee of
A.B.F. was informed by either A.B.F. or Respondents, that
there is any restriction against employees talking to manage-
ment about terms and conditions of employment. I conclude
Hathaway’s conversation with Porter did not have any influ-
ence on the decision to rebid the board for Porter went to
Pennington and Dibble and it was determined not to have a
total rebid at that time.
On or about April 18, Porter decided to rebid the board.
He was preparing to take off a few days. Porter testified:
Q. Did you post General Counsel’s Number 18 be-
cause of your conversation with Mr. Hathaway?
A. No. I posted the bid. I mean, I did it on my own
accord.
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The three unit members with the least seniority, Gary Gilge,
Tony Valdez, and Jerry Crosby, were laid off.
14 Several employees signed for bids, Hathaway did not and
Hathaway did not tell anyone he was going to sign for a bid.
15 Pennington also claimed Porter told him he was under a lot of
pressure from Hathaway to rebid the board, however Porter did not
corroborate this testimony. Pennington was not a credible witness.
Pennington appeared evasive; his testimony was self-serving and ex-
aggerated. Pennington appeared to be more interested in supporting
a litigation theory than in testifying candidly about the events herein.
At times, his testimony was equivocal, inconsistent and/or hostile or
evasive and defensive. Rockas did not aver Porter made a similar
statement to him. The credible evidence establishes Porter was under
pressure from his superior to lay off employees. He laid off three
employees and understood, incorrectly, that he then had to totally
rebid the board, and so he did.
On April 18, Porter was in a rush; preparing to leave work
for a few days off, when he telephoned A.B.F.’s dispatcher
and said; ‘‘Let’s post this bid. Let’s just totally re-bid the
whole thing.’’ Porter determined to rebid the board because
‘‘I had to lay off employees’’;13 he was instructed by his su-
periors to lay off employees. The three employees were laid
off on or about April 18. Porter did not recall informing any-
one from Local 741 about the layoffs. Pennington and Dibble
had arranged with A.B.F. to be absent on April 19 under the
‘‘work sharing’’ agreement and did not know of the posting
of the rebid until they returned to work on April 22.
This was the first time Porter had to lay off employees at
the Kent facility and he did not believe he had an obligation
to inform the Union about his instruction to lay off employ-
ees. He did try, unsuccessfully to contact the Local 741 stew-
ards about this total rebid. Porter did not intend for the bid
sheet to be posted, but the dispatcher posted it. Two posi-
tions were cut from the bid sheet, which eliminated two 9
a.m. start times. The two employees who lost their bids as
a result of the rebid were Cannata and Pennington. This was
the first and only time Porter posted a rebid without first
consulting Local 741. Porter did not consider it to be a mis-
take to post the rebid without informing the Local 741 stew-
ards and in their absence, and he did not instruct the dis-
patcher to take the rebid down when he learned it was posted
on April 19.
Porter also testified:
Q. And this was the first time Mr. Hathaway had
come to you and talked to you about a re-bid. Right?
A. That’s correct.
Q. And what your testimony is, though, is that Mr.
Hathaway coming to you about this re-bid deal had no
influence in your decision.
A. Yes.
Q. You knew he wanted a re-bid. Right?
A. Yes.
Q. You knew he was floating. Right?
A. That’s correct.
Q. You knew that he wanted a bid for his personal
reasons. Right?
A. Yes.
Q. But his asking you this earlier, two or three
weeks earlier, had no influence on your decision. Is that
your testimony?
A. Yes.
The first day Porter worked after the total rebid was post-
ed, the dispatcher informed him several employees were
upset about it.14 Porter talked with Pennington and the Local
741 Business Agent Rockas. Rockas told him the bid was il-
legal and he had to take it down. Next, Porter went to speak
with Pennington and asked him why the rebid was being pro-
tested. Pennington informed Porter ‘‘it was an illegal bid, I
didn’t follow the terms of contract, I just arbitrarily posted
the bid.’’ Porter replied ‘‘I felt like I could do that. Pen-
nington said, ‘‘No, you can’t . . . you know, that that bid
was not a proper bid.’’ Pennington then told Porter: ‘‘that he
had talked to Local 741, and I did not have to repost the en-
tire—to drop a bid or—I did not have to totally repost the
entire board. All I had to do was talk to the employees that
were affected by the bid, in other words, where I was going
to drop a start time.’’ Porter rejoined that was why he had
the total rebid. Pennington informed him that according to
Rockas ‘‘we did not have to do that. All you had to do was
basically go to the employees that were affected by seniority
order and you could post it that way.’’15
On or about April 25, Rockas went to A.B.F. and met with
Porter with Pennington and Dibble were also present. Rockas
asked Porter:
Why he didn’t get with us before he laid people off and
put up a new bid as he stated. And I told him that he’d
have to get with us so we can go over this bidding
process because we bid once a year. And he just said,
‘‘Well, I laid some people off, so I have to re-bid it.’’
Q. What did you say to that?
A. I told him, you don’t have to re-bid the whole
board because you layoff. All you do is eliminate some
positions on bids and the 80 percent changes.
Porter agreed to rescind the layoffs and not to totally rebid
the board at that time. After discussions with Rockas and the
Local 741 stewards, Porter partially rebid the board, limited
to the two 9 a.m. start times that he wanted to eliminate.
There was no mention of Hathaway during this conversation.
There was no mention of the Respondents filing a grievance
concerning A.B.F.’s failure to inform Local 741 about the
rebid and the layoffs, even though Local 741 understood the
collective-bargaining agreement and past practice to require
such notification. Rockas explained there was no grievance
filed by Local 741 because Porter’s action resolved the viola-
tion of the collective-bargaining agreement by removing the
rebid. There was no violation of the collective-bargaining
agreement, according to Rockas, when Porter laid off three
employees without first informing Local 741.
2. Pennington filing charge with Union
against Hathaway
Pennington has worked for A.B.F. about 5 years, including
casual time. He has been a member of Local 741 for about
14 years. He is currently one of the two Local 741 shop
stewards, which is an elected position; the unit members
elect the stewards. Pennington has been a steward for about
3-1/2 years. When Porter informed him Hathaway had asked
about a rebid and mentioned some other employees were in-
terested in when there would be a rebid, Pennington went to
Socha, Cannata, and Penfold, employees Porter mentioned,
1115TEAMSTERS LOCAL 741 (A.B.F. FREIGHT)
16 Pennington was referring to the work-sharing agreement where
there would be no layoffs.
17 One of the least senior employees, Gilge, told Hathaway prior
to the layoff that he would be better off if he was laid off because
he would not have to sit by the phone and wait for a call to come
into work and then could draw unemployment.
18 Pennington also claims Porter said he posted the total rebid be-
cause he was under pressure from Hathaway. I do not credit this tes-
timony based on the previously stated demeanor considerations. Fur-
ther, the uncontested testimony does not support this claim. Porter
never testified Hathaway asked for a rebid no less pressured him for
one. I also note, at times Pennington was not responsive in answer-
ing questions; he appeared to be tailoring his testimony to justify his
actions. Pennington also occasionally volunteered information.
19 Weldon is on Local 741’s executive board.
20 Hathaway noted in his testimony to Joint Council 28 that the
Local 741 hearing was scheduled ‘‘during my work time, and with
no discussion prior to notice of this hearing, obviously Mr. Weldon
nor Mr. Pennington were interested in my side of the argument, any-
way.’’ Hathaway did not inform Local 741 that the hearing was
Continued
and inquired if they asked Hathaway to represent them for
a rebid. They replied they did not. However, Cannata in-
formed Pennington he did not like his current bids and
would welcome a total rebid and Penfold testified, as indi-
cated previously, that he also wanted to talk to Porter, for
he too wanted a total rebid. Pennington informed Penfold
there would be a rebid once his grievance concerning the
new collective-bargaining agreements ‘‘single bid’’ language
was resolved.
The Local 741 stewards then attempted to talk with Hatha-
way. According to Pennington:
I asked him what he was doing representing other peo-
ple when he wasn’t a steward, and why did we need
a re-bid, and he told me, ‘‘Mind your own business.’’
Q. Was there anything else said by either you or Mr.
Hathaway?
A. No, he just walked into the lunch room. Mike
said something, but I didn’t catch it. I just, you know,
I already started to get mad.
Q. By the way, before any of this happened, had Mr.
Hathaway ever come to you and asked you about the
necessity for a re-bid?
A. No, he had not.
Cannata and Penfold had not approached Pennington indi-
cating they wanted a total rebid. Socha had indicated to Pen-
nington he wanted to drop his bid, which he could do on any
Friday.
When Pennington returned to work on April 22, 1991, and
learned of the posting of the total rebid, he immediately
talked to Porter and: ‘‘I just asked him what he thought he
was doing, and he says, ‘I laid three guys off.’ And I said,
‘What about the agreement?’’’16 And then I just walked out
of the room and left.
There was no mention of Hathaway. Pennington admitted
he was ‘‘pretty upset’’ Porter ‘‘[s]tabbed us in the back’’ by
posting the total rebid when the Local 741 stewards were
gone. Pennington then called Weldon to see if Local 741
knew of the posting and approved it. Weldon said he would
check with Rockas. Rockas went to A.B.F.
Pennington then went to the dock to proceed with his
work for A.B.F. when he met Hathaway and ‘‘asked him if
he was happy now that three guys were laid off.’’ According
to Pennington. Hathaway replied: ‘‘that they were better off
because now they didn’t have to sit by the phone and be on
call.’’17 Hathaway did not admit responsibility for the rebid
or the layoffs; Pennington admitted they did not discuss what
led to or who was responsible for the layoffs. Pennington as-
serts the 20 percenters do not have to sit by the telephone
all day long, ‘‘[o]ur 20 percenters only have to call in at
seven in the morning and ask if they are working that day,
or they need to tell the company, I am working somewhere
else or I have plans, I won’t be available today.’’ Shortly
thereafter, Porter informed Pennington he ‘‘pulled the re-
bid.’’18
Pennington had a discussion with Weldon19 as follows:
A. Actually, I asked him if Larry Hathaway had the
right to go into the manager’s office, representing other
people, for a re-bid when he wasn’t a steward and he
had not contacted the local union.
Q. So, what did Mr. Weldon tell you?
A. He told me that he did not have the right to do
that.
Q. Did you communicate those instructions from Mr.
Weldon to Mr. Hathaway?
A. No, Mr. Hathaway won’t talk to me.
Q. I know he won’t talk to you, but did you tell Mr.
Hathaway what Mr. Weldon told you?
A. No, I did not.
Pennington filed a charge against Hathaway as follows:
I am writing to request that formal charges be brought
against Larry Hathaway for the following reasons:
Brother Hathaway took it upon himself to attempt to
personally force ABF to layoff other brother teamsters
to benefit himself. At no time did Mr. Hathaway dis-
cuss with his shop stewards, myself or Brother Mike
Dibble, his intentions. He went personally to Rick Por-
ter without union representation or sanction to cause
harm to other union members and undermining an
agreement that Steward Dibble and myself had made
with Rick Porter to keep our Teamster Brothers from
being laid off.
This is not the first time that Brother Hathaway has
been in the office ‘‘advising, discussing, encouraging’’
management on what actions to take or which direction
to go regarding contractual matters.
Mike Dibble and myself are in total agreement either
Mr. Hathaway needs to call for a stewards election or
stay out of the office. This time his actions have caused
considerable financial hardship to our brothers on the
bottom of the board. . . .
3. Hearing before Local 741 and Joint Council 28
In lieu of appearing at the hearing conducted by Local 741
on Pennington’s complaint, Hathaway wrote the previously
quoted May 14, 1991 letter.20 This letter denied any viola-
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
scheduled during his work hours. Pennington denied Hathaway’s al-
legations.
21 This section, entitled ‘‘Duties of Members,’’ provides:
It shall be the duty of all members of this Union to assit [sic]
its officers in the discharge of their duties, and to serve on com-
mittees when appointed. Every member by virtue of his mem-
bership in this Local Union is obligated to abide by these By-
Laws and the International Constitution with respect to his
rights, duties, privileges and immunities offered by them. Each
member shall faithfully carry out such duties and obligations and
shall not interfere with the rights of fellow members. No mem-
ber shall interfere with the elected officers or business agents of
this organization in the performance of their duties, and each
member shall, when requested, render such assistance and sup-
port in the performance of such duties as may be required by
them, provided this does not interfere with the individual rights
of the members. Each member and officer shall adhere to the
terms and conditions of pertinent collective-bargaining agree-
ments and shall refrain from any conduct that would interfere
with the performance by this Local Union of its legal or contrac-
tual obligations. [Emphasis added.]
22 These sections, entitled ‘‘Trials and Appeals, Grounds for
Charges Against Members, Officers and Subordinate Bodies,’’ pro-
vide:
The basis for charges against members, officers elected Busi-
ness Agents Local Unions, Joint Councils or other subordinate
bodies for which he or it shall stand trial shall consist of, but
not be limited to, the following:
. . . .
(2) Violation of oath of office or oath of loyalty to the Local
Union and the International Union.
. . . .
(5) Conduct which is disruptive of, interferes with, or induces
others to disrupt or interfere with, the performance of any
union’s legal or contractual obligations. Causing or participating
in an unauthorized strike or work stoppage.
tions of the Respondents’ bylaws, constitution, or oaths and
indicated he was acting in concert with other employees and
in a manner privileged by article II, section 16 of the bylaws
to speak with A.B.F.’s management. Local 741 determined
Hathaway violated article II, section 16 of its bylaws,21 arti-
cle XIX, section 6(b), paragraphs (2) and (5) of the Inter-
national’s constitution,22 and Local 741’s oath, which pro-
vides, in part, ‘‘I . . . will never from self motives wrong
a brother, or see him wronged if in my power to prevent it.’’
Local 741 fined Hathaway $300.
Hathaway paid the fine, under protest, and appealed the
Local 741 decision to Joint Council 28, which affirmed the
fine by letter dated November 24, 1991, based on a hearing
held August 8, 1991. A transcript was made of the Joint
Council 28 hearing. Counsel for Local 741, the only counsel
appearing at the Board hearing, admitted: ‘‘Mr. Hurtado and
I have discussed at various times General Counsel’s Exhibit
Number 14 which is a transcript. We both agree that there
are problems with the transcript and that the court reporter
had not been completely accurate in setting down particularly
the parties who were speaking at various times.’’
The Joint Council 28 proceeding was conducted informally
without the administration of oaths to the witnesses.
In Hathaway’s statements, he informed the Joint Coun-
cil 28 ‘‘Apparently Mr. Pennington believes that a driv-
er cannot talk to a Terminal Manager by himself or
without a shop steward present. I know that Mr.
Twomey also believes that, and Mr. Dibble spoke to
me, that I had no business talking to the Terminal Man-
ager. I think that there are enough facts to the contrary
and case law to the contrary that will speak to that.’’
Hathaway also discussed his support of candidates for of-
fice at the International convention which were different than
those candidates supported by Local 741. The candidates
supported by Hathaway prevailed in February and March,
about 1 month before Pennington filed the charges against
him. Hathaway was affiliated with a group called Teamsters
for a Democratic Union. Further, he was a candidate for
trustee in the most recent Local 741 election and he initiated
a petition requesting a 30-year-and-out pension option in Jan-
uary 1991. During the Joint Council 28 hearing, Hathaway
said:
As a driver I have no authority to layoff anyone. . . .
That is a management decision. It would not be in my
best interests to prefer anyone be laid off. In fact, as
the letter states, the Terminal Manager is the one who
mentioned it to me, that he was under pressure to layoff
because the bottom of the board wasn’t working. . . .
There are three people who did eventually get laid off
some weeks later, but my conversation with the man-
ager occurred in later March. The layoffs occurred in
the middle of April. And it was a one only—only one
conversation with him. Others also talked to him abut
re-bidding the board. The purpose of my conversation
was to re-bid, not to layoff, and we can chase this
around the room all day long but that is the reason for
my visit with the Terminal Manager, to re-bid the se-
niority board.
One of the laid-off employees, Gilge, testified before Joint
Council 28, Porter informed him the decision to lay him off
came from, ‘‘Arkansas,’’ indicating it was made by Porter’s
superiors.
By letter dated May 8, 1992, Joint Council 28 informed
Hathaway they affirmed the Local 741 decision, including
the imposition of a $300 fine.
4. Action by the International
Hathaway appealed the Joint Council 28 decision to the
International. On May 8, 1992, the International’s general
secretary-treasurer informed Hathaway by letter ‘‘that the
General Executive Board, at its meeting held April 28, 1992,
upheld the decision of Joint Council 28 denying your appeal
from the decision of Local 741 . . . .’’
In part, the decision of the International provided:
The evidence established that in the past job bidding
at ABF occurred semi-annually, pursuant to the con-
tract. However, as of August 1991, no re-bid had oc-
curred pending the outcome of a grievance over the
bidding language contained in the recently ratified con-
tract. In addition, there was evidence to establish the
existence of a verbal agreement between Local 741 and
ABF providing that junior drivers fill in for senior driv-
ers who requested time off, thus avoiding the layoff of
junior drivers. . . . While a union member is entitled
to discuss matters with management without the pres-
ence of a union official, the member is not entitled to
attempt to enforce compliance with the collective-bar-
1117TEAMSTERS LOCAL 741 (A.B.F. FREIGHT)
23 The bylaws charge the shop stewards to ‘‘Act as spokesman for
his fellow workers within the confines of Local Union policies and
in general to carry out the policies of the Local Union.’’
gaining agreement through direct negotiation with man-
agement. That is the union’s role and responsibility.
Brother Hathaway’s error was in not relying on the
Union to advance his claim that a re-bid was necessary
or by circumventing the decision of the Union by en-
gaging in direct negotiation.
It is not necessary to establish that Brother Hatha-
way’s conversation caused the re-bid or the subsequent
layoff. The conversation, involving the subject of a re-
bid, interfered with Local 741’s contractual obligations.
The interference is particularly clear, where, as here, a
grievance was pending on the issue of a re-bidding. In
addition, the fact that at least one junior driver and
brother member lost a full-time bid as a result of the
unilateral re-bid (although subsequently reinstated) pro-
vides additional evidence of brother Hathaway’s inter-
ference with Local 741’s contractual obligations. [Em-
phasis added.]
It is undisputed the Joint Council 28 and International had
information employees other than Hathaway were interested
in when the next total rebid of the board would occur and
that they wanted such a rebid. It is also clear the Inter-
national and Joint Council 28 determined Hathaway’s men-
tion of several employees’ interest in having a rebid was the
basis for their affirming the decision of Local 741.
C. Analysis and Conclusions
The decision in this case rests on three sections of the Act.
Section 8(b)(1) makes it an unfair labor practice to ‘‘restrain
or coerce (A) employees in the exercise of the rights guaran-
teed in [Section 7]: Provided, that this paragraph shall not
impair the right of a labor organization to prescribe its own
rules with respect to the acquisition or retention of member-
ship therein.’’
Section 7 of the Act gives employees:
the right to self-organization, to inform, join, or assist
labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall
also have the right to refrain from any or all such ac-
tivities except to the extent that such right may be af-
fected by an agreement requiring membership in a labor
organization as a condition of employment as author-
ized in Section 8(a)(3).
Section 9(a) of the Act provides:
Representatives designated or selected for the purposes
of collective bargaining by the majority of the employ-
ees in a unit appropriate for such purposes, shall be the
exclusive representatives of all the employees in such
unit for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, or other
conditions of employment: Provided, That any indi-
vidual employee or a group of employees shall have the
right at any time to present grievances to their em-
ployer and to have such grievances adjusted, without
the intervention of the bargaining representative, as
long as the adjustment is not inconsistent with the
terms of the collective-bargaining contract or agreement
then in effect: Provided further, that the bargaining rep-
resentative has been given an opportunity to be present
at such adjustment.
Position of the Parties
General Counsel argues Stewards Pennington and Dibble
are agents of Local 741; that these agents as well as Local
741, Joint Council 28 and the International violated Section
8(b)(1)(a) of the Act by contravening a basic policy of labor
law as provided in Section 9(a). General Counsel, in support
of this argument, claims Hathaway’s conduct was protected
by Section 7 of the Act and was concerted protected activity.
Respondent Local 741 argues the fine was enforcement of in-
ternal union rules that had no effect on the employer-em-
ployee relation and therefore was legal under Section
8(b)(1)(A). Local 741 asserts the Local 741 executive board
had ‘‘a sufficient basis upon which to conclude that L inter-
fered in the Union’s contractual responsibilities; Hathaway is
not entitled to yet another trial in this case.’’
Agency status of Pennington and Dibble
Section 2(13) of the Act provides:
In determining whether any person is acting as an
‘‘agent’’ of another person so as to make such other
person responsible for his acts, the question is of
whether the specific acts performed were actually au-
thorized or subsequently ratified shall not be control-
ling.
The principal is responsible under the law of agency if it
is made to appear Pennington and Dibble were acting in their
capacity as shop stewards. Electrical Workers IBEW Local
760 (Roane-Anderson Co.), 82 NLRB 696, 712 (1949). The
common law rules of agency apply in Board proceedings and
authority may be implied, apparent or express. NLRB v. Elec-
trical Workers IBEW Local 3 (New York Telephone), 467
F.2d 1158 (2d Cir. 1972). Pennington admitted he and Dib-
ble have the same authority under Local 741’s bylaws23 and
the pertinent collective-bargaining agreements. The record
clearly establishes Porter communicates frequently with Pen-
nington and Dibble as Local 741’s representatives. Porter in-
formed them of Hathaway’s comments concerning when
there would be a rebid. Pennington admitted instructing Por-
ter to ‘‘stick to the [collective-bargaining] agreements.’’ Fur-
ther, Pennington admits ‘‘I tell Mr. Porter he’s wrong all the
time.’’ According to Pennington:
A. Everything that Mr. Porter does affects bargaining
unit employees.
Q. And so some of those occasions where you tell
Mr. Porter to change and he does change, that’s an ad-
justment of a condition that affects bargaining unit em-
ployees. Correct?
A. Most of the time when I tell him to change, I
contact the union first.
Q. Not necessarily all the time.
A. If it’s a minor matter, no.
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 Pennington admitted he was informed by Larry Weldon that no
individual had the right to go in representing other employees except
the bargaining agent and related this conversation to Dibble. It is
uncontroverted Dibble told Hathaway he ‘‘had no right to go to the
terminal manager.’’
Q. What do you classify as a minor matter?
A. If there’s a runaround for a half hour overtime or
if there’s a claim for heavy duty pay, which is only
nine cents an hour, I usually know if we’re right or
we’re wrong on those.
Q. If it’s a minor matter, you have the authority to
adjust or make a correction with Mr. Porter right away
on the spot?
A. Well, I am supposed to be the first line, myself
and Mike Dibble, according to the contract.
Q. Well, from your occasion and from your experi-
ence as a shop steward, have you had those abilities to
make those on-site adjustments with Mr. Porter without
contacting the Union first?
A. For very minor things, yes.
Pennington described the stewards’ authority as including
negotiating questions concerning employees’ entitlement to
overtime pay and extra compensation for driving four-axle
trucks, and performing other ‘‘heavy duty’’ jobs, such as
hostleing. Pennington also admitted he was involved in the
negotiations with Porter for the resolution of the problems
occasioned by A.B.F. posting the rebid on April 18. Rockas
described part of the shop stewards’ duties concerning the
bidding process as follows:
Q. And then what function would the shop stewards
have in reporting to you about the change in bids?
A. Usually they would—the terminal manager would
tell the shop steward, Mr. Pennington, that he’s think-
ing of changing the bids. He wants to change start
times, or he wants to move—readjust the shifts because
of the inflow of freight. The shop steward would call
me up, tell me that they’re planning to re-bid. I said
okay, I’ll be down there tomorrow morning or the next
morning and we’ll talk it over with them and make sure
that they’re doing it within the contract, the start times
and the percentages.
Q. And do the shop stewards have any input in your
negotiations with the employer about the reason?
A. They’re sitting in there and giving their input too,
yeah.
Pennington also admitted the stewards have the authority
to transmit messages and information from Local 741 to
members. Further, under the bylaws and collective-bar-
gaining agreements, the stewards, while they cannot refuse a
grievance, can investigate and express their opinions on its
merits.
Porter discussed the potential of rebidding with the shop
stewards routinely prior to posting. He informed the shop
stewards of Hathaway’s inquiry concerning a rebid. The shop
stewards were part of the negotiations for the ‘‘work shar-
ing’’ program. Pennington informed Porter of the new provi-
sions for bidding under the new collective-bargaining agree-
ment and that there would be a grievance if he continued the
practice of having ‘‘multiple bids.’’ The shop stewards at-
tended the meeting with Porter concerning the April rebid-
ding and were part of Local 741’s team that negotiated the
removal of the rebid and reinstatement of the three laid-off
employees. The record clearly demonstrates Pennington and
Dibble talked to the employees mentioned by Hatchway in
his conversation with Porter and Hatchway; informing Hatch-
way and others that Local 741 is their sole collective-bar-
gaining representative and they could not individually or col-
lectively have another representative with management. The
shop stewards routinely accompanied Local 741 officials to
meetings with the Employer and they asked questions of the
Employer on behalf of the represented employees.
The record clearly establishes that when the Local 741
shop stewards informed Hathaway that he could not ask
A.B.F. management when there would be a rebid, they were
acting within the actual and/or apparent scope of their au-
thority and as agents of Local 741.24 Compare United Build-
ers Supply Co., 287 NLRB 1364 (1988).
Was Hathaway’s conduct protected under Section 7
The credible evidence clearly established Hathaway merely
asked Porter when there would be a rebid. The inquiry was
caused by the return of two employees from long-term dis-
ability absences. The bidding procedure is contained in the
collective-bargaining agreements.
As determined by the Court in NLRB v. City Disposal Sys-
tems, 465 U.S. 822, 830, 831 (1984):
an employee’s invocation of a right derived from a col-
lective-bargaining agreement meets Section 7’s require-
ment that an employee’s action be taken ‘‘for purposes
of collective bargaining or other mutual aid or protec-
tion.’’ As the Board first explained in the Interboro
case [157 NLRB 1295 (1966)], a single employee’s in-
vocation of such rights affects all the employees that
are covered by the collective-bargaining agreement.
Interboro Contractors, Inc., supra, at 1298. This type of
generalized effect, as our cases have demonstrated, is
sufficient to bring the actions of an individual employee
within the ‘‘mutual aid or protection standard, regard-
less of whether the employee has his own interests most
immediately in mind. See, e.g., NLRB v. J. Weingarten,
420 U.S. 251, 260–261 (1975).
The invocation of a right rooted in a collective-bar-
gaining agreement is unquestionable an integral part of
the process that gave rise to the agreement. . . . Nor
would it make sense for a union to negotiate a collec-
tive-bargaining agreement if individual employees could
not invoke the rights thereby created against their em-
ployer. . . A lone employee’s invocation of a right
grounded in his collective-bargaining agreement is,
therefore, a concerted activity in a very real sense.
Moreover, Hathaway clearly informed Porter other em-
ployees were interested in having a rebid. Thus, there is no
claim Hathaway’s actions were dubious or unrelated to the
concerns and interests of fellow employees. The Court fur-
ther interpreted the Interboro doctrine to require ‘‘even if an
individual’s invocation of rights provided for in a collective-
bargaining agreement, for some reason were not concerted
activity, the discharge of that individual would still be an un-
fair labor practice if the result were to restrain or interfere
1119TEAMSTERS LOCAL 741 (A.B.F. FREIGHT)
25 In NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 179–180,
(1966); the Court noted legislative history is an important decisional
tool in deciding cases under the NLRA and ‘‘we have applied that
principal to the construction of Section 8(b)(1)(A) itself in holding
that the section must be construed in light of the fact that it ‘is only
one of many interwoven sections in a complex Act, mindful of the
manifest purpose of the Congress to fashion a coherent national
labor Policy.’ NLRB v. Teamsters Local 362, 362 U.S. 274, 292.’’
26 It is not necessary to meet the protections of Section 9(a) that
the employee represent other employees. The Report of the House
Committee on Education and Labor described the objective of Sec-
tion 9(a) as follows:
The bill further adds to the freedom of workers by permitting
them not only to present grievances to their employers, as the
old Board heretofore has permitted them to do, but also to settle
the grievances when doing so does not violate the terms of a
collective-bargaining agreement, which the Board has not al-
lowed. H. Rep. No. 245, 80th Cong., 1st Sess. 7 (1947).
The Conference Committee reported:
Both the House bill and the Senate amendment amended sec-
tion 9(a) of the existing law to specifically authorize employers
to settle grievances presented by individual employees or groups
of employees, so long as the settlement is not inconsistant with
any collective-bargaining contract in effect. H. Rep. No. 510,
80th Cong., 1st Sess. 46 (1947), p. 1152.
27 Porter told Pennington Hathaway was inquiring on behalf of
other employees. Hathaway informed all Respondents he was exer-
cising his rights to talk to management. Further, Porter informed
Pennington he posted the bid on his own, believing it was his right
based on the decision of his managers to have a layoff which re-
quired an alteration in bidding. Pennington admitted he had to ex-
plain to Porter the reduction in staff did not necessitate a complete
rebid, he could conduct a ‘‘bump and roll’’ partial rebid.
with the concerted activity of negotiating or enforcing a col-
lective-bargaining agreement.’’
Hathaway’s action in talking to Porter did not lose the pro-
tection of the Act because his understanding the return of the
two employees who had been on disability leave required a
rebid was arguably incorrect under the operative collective-
bargaining agreements. As the Board held in Anaconda Alu-
minum Co., 160 NLRB 35, 40–41 (1966): ‘‘But absent un-
usual circumstances not here present, the protections ac-
corded employees under the Act are not dependent upon the
merit, or lack of merit, of concerted activity in which they
engage. Nor are these rights defensible by the ‘unwisdom’ of
the action taken, or limited by the maturity of the judgment
displayed.’’ Citing NLRB v. Solo Cup Co., 237 F.2d 521,
526 (8th Cir. 1956), and cases cited therein at fn. 2; Tomar
Products, 151 NLRB 57, 63 (1965). I find Hathaway’s ex-
pression of interest to his supervisor in having a rebid was
protected activity.
Furthermore, I conclude Hathaway acted in concert with
other employees with whom he talked, including Penfold.
Penfold, as well as Cannata and Socha, were mentioned to
Porter. Penfold admitted he and Hathaway discussed each
would seek the opportunity to discuss with A.B.F. manage-
ment their desires to have a rebid, and approved of Hatha-
way’s action. It is without dispute Cannata and Socha also
spoke with Hathaway concerning their desires to have a
rebid. It is clear a rebid had the potential of altering employ-
ees terms and conditions of employment including routes
hours, vehicles assigned, wages and other terms and condi-
tions of employment and the conversation reflected the wish-
es of several employees. Porter informed Pennington Hatha-
way’s conversation reflected the wishes of more than one
employee. Thus, Hathaway’s discussion with Porter relating
the interest of several employees in having a rebid is clearly
concerted protected activity under both the Interboro doctrine
and Myers Industries, 268 NLRB 493, 497 (1984), remanded
sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert.
denied 474 U.S. 944 (1985); reaffd. Myers II, 281 NLRB
822 (1986), affd. 835 F.2d 1481 (D.C. Cir 1987). See also
Oakes Machine Corp., 288 NLRB 456 (1988). In sum,
Hathaway was engaged in activity protected by Section 7 of
the Act when he asked Porter when there would be a rebid
and Pennington knew of the concerted nature of this action.
Combustion Engineering, 177 NLRB 521, 526 (1969).
Were Respondents’ actions protected under Section
8(b)(1)(A)?
Respondents argue Section 8(b)(1)(A) does not regulate
the conduct of unions when they impose and enforce fines
in the administration of internal union rules which have no
effect on employer-employee relations. This argument is only
partially correct. As the Court held in Scofield v. NLRB, 394
U.S. 423, 429 (1969); ‘‘it has become clear that if the
[union’s] rule invades or frustrates an overriding policy of
the labor laws the rule may not be enforced, even by fine
or expulsion, without violating Section 8(b)(1).’’ See also
Pattern Makers League v. NLRB, 473 U.S. 95 (1985), which
determined union restrictions on a member’s right to resign
was inconsistent with the policy of voluntary unionism im-
plied in the Act. In this case, Congress has explicitly estab-
lished a policy of guaranteeing employees the freedom to
present their complaints to their employers without any inter-
cession from the bargaining representative.25
Thus, the Respondents’ rights under Section 8(b)(1)(A),
are with limits, and Respondents exceeded those limits in
this case. It is without question Hathaway went to Porter and
requested information concerning the proper operation of a
provision of the collective-bargaining agreements; the rebid-
ding procedures and indicated he thought the contracts re-
quired a rebid. This action, on his own behalf and in the stat-
ed interest of other named employees,26 was clearly the pres-
entation of a grievance or problem of the character protected
by Section 9(a). To hold otherwise would make Section 9(a)
a nullity. I find Hathaway was privileged to present his posi-
tion to Porter and the shop stewards informing him he did
not have this right and to refrain from presenting grievances
to his employer in the future is violative of Section
8(a)(1)(A) of the Act.
That the fine was an internal action is also not an excul-
patory factor in this case. ‘‘The fact that the discipline im-
posed was an internal one no longer served as an inexorable
basis of immunity against liability under Section 8(b)(1)(A),
and where the reason for the discipline contravened public
policy so as to overcome the immunity based on the internal
character of the discipline, the union was found liable under
Section 8(b)(1)(A).’’ International Union of District 50,
Mine Workers Local 12419 (National Grinding Wheel), 176
NLRB 628, 631 (1961). The Respondent’s action of fining
Hathaway for presenting a problem or grievance to Porter
where Pennington was informed of the protected nature of
the activity,27 has the effect of coercing Hathaway by inhib-
iting his access to his employer and impairing his rights as
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
provided in Section 9(a). Machinists Local 504 (Arrow De-
velopment), 185 NLRB 365 (1970). Cement Workers Local
D-357 (Southwestern Portland Cement), 288 NLRB 1156
(1988).
Any claim that Hathaway’s actions were not protected be-
cause his discussion with Porter was not in the presence of
other employees or was primarily motivated by Hathaway’s
interest in obtaining a bid position is without merit. The
Board has consistently found ‘‘an activity may be concerted
although it involves only a speaker and a listener.’’ Salt
River Valley Water Users’ Assn., 99 NLRB 849, 853 (1952),
enfd. 206 F.2d 325, 328 (9th Cir. 1953). The record does not
establish Hathaway was primarily motivated to obtain a bid
position. The layoff could have removed him from being eli-
gible to bid. He previously waived his right to a bid position
because he wanted to retain his other part-time job. Assum-
ing he was motivated, at least in part, by his own interests,
this does not remove his actions from the protection of the
Act for they ‘‘involve the promotion and advancement of
employee interests affecting wages, hours, and terms and
conditions of employment. . . . The law does not require
that activities, otherwise sheltered, spring from exalted mo-
tives.’’ Mushroom Transportation Co., 142 NLRB 1150,
1158 (1963), citing Joanna Cotton Mills Co. v. NLRB, 176
F.2d 749 (4th Cir. 1949).
The merits of the employees complaint under the collec-
tive-bargaining agreement is not a consideration. As found in
Eastern Illinois Gas & Securities Co., 175 NLRB 639, 640
(1969):
We find no merit in Respondent’s argument. It is
true that under Section 9(a), the collective-bargaining
agreement defines the permissible area within which an
employer may adjust directly with employees griev-
ances presented by them. Thus, if a grievance poses de-
mands which are in conflict with the contract, an em-
ployer may lawfully refuse to resolve the matter with-
out the presence of a union representative. However, it
does not follow that Section 9(a) thereby confers on the
employer the right to discharge an employee for the act
of grieving. Respondent’s view of the proviso would
lead to the incongruous result of, on the one hand,
granting an employee freedom to present his complaints
to his employer without the intervention of the bar-
gaining representative and on the other, subjecting the
employee to the peril of discharge should his complaint
contradict the terms of the contract. Such a construction
of the statute is at variance with Board precedent hold-
ing that the protections of the Act are not dependent
upon a correct interpretation of the contract or on the
merit or lack of merit of the concerted activity.
Citing Bonded Armored Carrier, 147 NLRB 100 (1964);
Douds v. Retail Wholesale Union, 173 F.2d 764 (2d Cir.
1949).
Further, internal union proceedings cannot fully explore
and preserve an employees rights under Section 9(a). The
union is not privileged to police which complaints involving
terms and conditions of employment a member may bring to
the employer. Compare NLRB v. Shipbuilders, 391 U.S. 418
(1968). The Respondents’ actions were clearly based on
Hathaway’s exercising his privilege to bring a problem or
grievance to his employer on behalf of himself and other
members/employees. Hathaway’s questionable interpretation
of the collective-bargaining agreements does not grant Re-
spondents the liberty to entertain internal union charges, con-
duct a hearing, find Hathaway guilty of violating the bylaws
and International constitution and fine him for his action.
Moreover, if an employer uses an employee’s exercise of his
privilege to present a grievance directly to the Employer as
a means of terminating a provision or engaging in unlawful
unilateral action, the employers actions do not change the
privileged character of the employee’s conduct.
The Respondents are not at liberty to circumscribe an em-
ployee’s access to an employer to present a problem or
grievance by having the freedom to entertain internal union
charges, conduct a hearing, find Hathaway guilty of violating
the bylaws and International constitution, and fine the em-
ployee if the employee’s complaint or interpretation of the
contract is incorrect. The Respondents’ rights under the pro-
viso to Section 8(b)(1)(A) are clearly circumscribed by Sec-
tion 9(a). Respondents’ reliance on the Court’s decision in
Emporium Capwell v. Western Addition Community Organi-
zation, 420 U.S. 50 (1975), is unpersuasive. Unlike the em-
ployees in the Emporium Capwell case, Hathaway did not in-
sist A.B.F. bargain with him to the exclusion of the collec-
tive-bargaining representative or to otherwise improperly ex-
clude the Respondents. Here, the employee did merely
present a grievance and there was no attempt to undermine
or improperly circumvent the statutory scheme of bargaining
through elected representatives. Eastern Illinois Gas & Secu-
rities Co., supra, 175 NLRB 639.
I conclude that Hathaway was subjected to internal union
charges, hearings and fined because of his protected con-
certed activity of presenting a grievance or problem to a rep-
resentative of his employer in violation of Section 8(b)(1)(A)
and, as found above, Local 741 violated Section 8(b)(1)(A)
by its agent informing Hathaway he does not have the right
to directly present problems and grievances to representatives
of his employer if the matter is contained in the collective-
bargaining agreements.
CONCLUSIONS OF LAW
1. A.B.F Freight System is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Respondents, Teamsters Local Union No. 741, Line
Drivers, Pickup and Delivery, affiliated with International
Brotherhood of Teamsters, AFL–CIO, Joint Council of
Teamsters No. 28, affiliated with International Brotherhood
of Teamsters, AFL–CIO, and the International Brotherhood
of Teamsters, AFL–CIO are labor organizations within the
meaning of Section 2(5) of the Act.
3. Respondents, by entering internal charges against Larry
Hathaway, subjecting him to internal union disciplinary pro-
ceedings, finding him guilty of violating Local 741’s bylaws
and the International’s constitution, imposing a $300 fine and
affirming these findings, restrained and coerced him in the
exercise of the rights guaranteed him by Sections 7 and 9(a)
of the Act, and thereby engaged in an unfair labor practice
within the meaning of Section 8(b)(1)(A) of the Act.
4. Respondent Local 741, by its agents informing Hatha-
way he does not have the right to directly present problems
and grievances to a management representative of his em-
1121TEAMSTERS LOCAL 741 (A.B.F. FREIGHT)
28 In accordance with our decision in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), interest on and after January 1,
1987, shall be computed at the ‘‘short-term Federal rate’’ for the un-
derpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621. Interest on amounts accrued prior to January 1, 1987 (the ef-
fective date of the 1986 amendment to 26 U.S.C. § 6621), shall be
computed in accordance with Florida Steel Corp., 231 NLRB 651
(1977).
ployer concerning matters contained in the collective-bar-
gaining agreement between Respondent Local 741 and the
Employer, violated Section 8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I find it necessary to order them to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
As I have found that Respondents Local 741 violated Sec-
tion 8(b)(1)(A) of the Act by informing Hathaway he does
not have the right to directly bring problems and grievances
to a representative of his employer if the matter is contained
in a collective-bargaining agreement between Local 741 and
the Employer. I further found Respondents Local 741, Joint
Council 28, and the International violated Section 8(b)(1)(A)
of the Act by bringing internal union charges, conducting
hearings, finding Hathaway violated Local 741’s bylaws and
the International constitution, imposing a $300 fine, and af-
firming the fine because Hathaway presented a problem or
grievance to a representative of his employer. Accordingly,
I recommend, among other things, that Respondents cease
and desist from bringing internal union charges, conducting
hearings, finding Hathaway violated Local 741’s bylaws and
the International constitution, imposing a $300 fine, affirm-
ing the fine or otherwise disciplining Hathaway or other
members for engaging in the protected concerted activity of
presenting grievances directly to a representative of his em-
ployer, rescind the fine imposed on Hathaway and give him
written notice of such recision, with any interest on the fine
he paid to be computed in the manner prescribed in New Ho-
rizons for the Retarded.28
I shall also recommend that any reference to the Respond-
ents’ charging, conducting hearings, fining, and affirming the
fine of Hathaway be expunged from Respondents’ records.
[Recommended Order omitted from publication.]