Truck Drivers, Oil Drivers, Local 705

National Labor Relations Board - Board Decisions

Feb 28, 1974

209 N.L.R.B. 292 (N.L.R.B. 1974)

292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Truck Drivers, Oil Drivers and Filling Station and
Platform Workers Local No. 705, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Associated
Transport, Inc.) and Louis Kesner.
Truck Drivers, Oil Drivers and Filling Station and
Platform Workers Local No. 705 , International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Foster and
Kleiser) and Aaron Kesner . Cases 13-CB-4687
and 13-CB-4693
February 28, 1974
DECISION AND ORDER
By CIJAIRMAA MILLER AND MEMBERS
FANNING AND PENELLO
On September 6, 1973, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent and the
Charging Parties filed exceptions and supporting
briefs, and the General Counsel filed a brief in
response to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.3
The Administrative Law Judge found that certain
statements made by agents of Respondent to Aaron
Kesner on October 18 and December 26, 1972, and
communicated by him to his brother, Louis Kesner,
to the effect that Respondent would prevent Louis
Kesner from working violated Section 8(b)(1)(A) of
the Act. We agree with those findings. The Adminis-
trative Law Judge further found that certain threats
of physical harm made by Respondent's agents to
1 Respondent has excepted inter alia to the Administrative Law Judge's
revocation of certain portions of the subpoena duces tecum served by
Respondent on the Regional Director for Region 13 Specifically,
Respondent excepted to the refusal of the Administrative Law Judge to
require the Regional Director to produce memoranda from the General
Counsel's Offices of Advice and Appeals in Washington, D C., to the
Regional Director relating to all closed CB cases from the calendar years
1967 through May 31, 1973. in which Aaron Kesner was the Charging Party
and Local 705 the Respondent Inasmuch as we find that the subpenaed
documents relate only to collateral issues and are not material to the case at
bar, we find no error in the Administrative Law Judge 's revocation of these
portions of the subpena. Furthermore , in affirming his ruling , we would
note that the Board does not in an) way consider or rely on the material
sought in reaching its decisions and, thus, did not have such before it in
coming to its Decision and Order herein. Assuming arguendo, however. that
Respondent was entitled to these documents regardless of their relevancy or
Aaron Kesner on August 29 and October 18, 1972,
violated Section 8(b)(1)(A) of the Act. We agree with
his finding as to the statements made on October 18.
However, with respect to the statements made on
August 29, counsel for the General Counsel explicitly
stated at the hearing that evidence of these threats
was being offered only to show Respondent's
animosity toward the Kesners, and not to prove a
separate violation. In view of this disclaimer, we do
not adopt the Administrative Law Judge's finding
that the threats made to Aaron Kesner on August 29,
1972, violated Section 8(b)(1)(A).
The Administrative Law Judge further found that
Respondent did not breach its duty of fair represent-
ation by the manner in which it processed Aaron
Kesner's grievance based on employer Foster and
Kleiser's failure to recall him from layoff in accord-
ance with seniority. We disagree with that finding as
it relates to the conduct of Respondent's agent, Don
Heim, at the Joint Grievance Committee meeting of
November 8, 1972. It is clear from the record that
Heim, who attended the meeting as spokesman for
Respondent (and hence for Aaron Kesner), openly
stated at that meeting that he believed that Kesner
did not have a valid grievance. By making this
statement, Heim in effect abdicated his duty to
present the grievance in the light most favorable to
Kesner.
In our view, once Respondent undertook to present
Aaron Kesner's grievance to the Joint Grievance
Board, it became obligated to represent him fully and
fairly. This obligation included the duty to act as
advocate for the grievant, which here Heim clearly
did not do. To the contrary, by saying that he did not
believe Aaron Kesner's claim was valid, Heim
undermined Kesner's case before the Joint Griev-
ance Board. In these circumstances, we are con-
strained to conclude and find, contrary to the
Administrative Law Judge, that by this conduct
Respondent breached its duty of fair representation
and restrained and coerced Kesner in the exercise of
his Section 7 rights, thereby violating Section
nonuse by us, Respondent has not shown any prejudice ansing from the
Administrative Law Judge's ruling Accordingly, we find this exception to
be without ment
2 The Respondent and Charging Party Aaron Kesner have also excepted
to certain credibility findings made by the Administrative Law Judge. It is
the Board's established policy not to overrule an Administrative Law
Judge's resolutions with respect to credibility unless the clear preponder-
ance of all of the relevant evidence convinces us that the resolutions are
incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F.2d
362 (C.A 3, 1951) We have carefully examined the record and find no basis
for reversing his findings.
3 We agree with the Administrative Law Judge that a broad cease-and-
desist order is appropriate in the instant case However, we do not find that
the extraordinary requirement of publication of the attached notice is
justified on this record.
209 NLRB No. 46
TRUCK DRIVERS, OIL DRIVERS , LOCAL 705
8(b)(1)(A) of the Act. Accordingly, we shall order
that Respondent cease and desist from such conduct.
Although we would normally grant an affirmative
remedy for the above violation, we do not feel that
such is warranted here for the following reason. The
Administrative Law Judge found, largely on the basis
of credibility resolutions, that Kesner's grievance
concerning the failure of Foster and Kleiser to recall
him from layoff status was without merit. The
Administrative Law Judge found as a matter of fact
that Kesner was initially hired by Foster and Kleiser
as a temporary employee and that, as such, he did
not accrue seniority for purposes of recall from
layoff. Upon the record as a whole, we find no basis
for reversing the Administrative Law Judge's find-
ings in this regard and, therefore, do not find an
affirmative remedy justified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Respondent
Truck Drivers, Oil Drivers and Filling Station and
Platform Workers Local No. 705, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Chicago, Illinois, its
officers, agents, and representatives, shall take the
action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 1 of the
recommended Order:
"1. Cease and desist from:
"(a) Restraining or coercing employees in the
exercise of their rights under Section 7 of the Act by
failing or refusing to advocate their position in
grievances which are heard by the Joint Grievance
Board.
"(b) Restraining or coercing, in any way or by any
means, its members or the employees of any
employer engaged in commerce, because said per-
sons have filed charges or given testimony under the
Act or because said persons are not members of
Respondent Truck Drivers, Oil Drivers, Filling
Station and Platform Workers Local No. 705 of the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, except to
the extent that such rights may be affected by an
agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in
Section 8(a)(3) of the Act."
2. Delete paragraph 2(b) from the recommended
Order and reletter the subsequent paragraph accord-
ingly.
293
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce employees in
the exercise of their rights under Section 7 of the
Act by failing or refusing to advocate their
position in grievances which are heard by the
Joint Grievance Board.
WE WILL NOT, in any way or by any means,
restrain or coerce our members, or the employees
of any employer engaged in interstate commerce,
because they have filed charges, given testimony,
or otherwise cooperated with the National Labor
Relations Board in the administration of the
National Labor Relations Act.
WE WILL NOT threaten employees with loss of
job opportunities because they are not members
of Local 705.
We hereby notify all our members, and the
employees of all employers engaged in interstate
commerce, that you are free to file charges, give
testimony, or otherwise cooperate with the National
Labor Relations Board, without fear of any reprisal
on the part of this Union.
TRUCK DRIVERS, OIL
DRIVERS AND FILLING
STATION AND PLATFORM
WORKERS LOCAL No.
705, INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Everett McKinley Dirksen Building,
Room 881, 219 South Dearborn Street, Chicago,
Illinois 60604, Telephone 312-353-7572.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
FINDINGS OF FACT
WALTER H. MALONEY, JR., Administrative Law Judge:
This case came on for hearing before me upon two
complaints issued and consolidated for hearing by the
Regional Director of the Board's Region 13. These
complaints allege that Respondent Local 705 (herein called
Union or Local 705) violated Section 8(b)(1)(A) of the Act
by illegally threatening Louis Kesner and his brother,
Aaron Kesner, because they filed charges or lacked union
membership. They also allege that Local 705 also violated
Section 8(b)(2) of the Act by attempting to cause certain
employers not to hire Louis Kesner because he filed
charges and was not a Local 705 member, and that Local
705 also violated Section 8(b)(1)(A) of the Act by
discriminatorily refusing to process a grievance filed by
Aaron Kesner because he and his brother filed charges and
gave testimony under the Act. The Union denies the
allegations, and further asserts that the matters set forth in
the complaints and amendments thereto are barred by
limitations. Upon these contentions, the issues herein were
joined.'
A. Recent Board Cases Involving the Parties
Herein, and Events Transpiring Before August 7 and
12, 1972
Neither the charging parties nor the Respondent herein
are strangers to the Board or its processes? Charging Party
Aaron Kesner is and has been a member in good standing
of Local 705. Charging Party Louis Kesner has never been
a member of Local 705, his application for membership
having been denied on several occasions. A brief summary
of their more recent encounters is as follows:
Case 13-CB-3273-Charge filed by Aaron Kesner
against Local 705 on April 1, 1970, alleging wrongful
refusal to process a grievance. Charge dismissed by
Regional Director, and dismissal upheld on appeal on
October 2, 1970. This case grew out of Kesner's dismissal
i There was much procedural sparring preliminary to the opening of the
hearing in this case As a result , the formal record is laden with an unusually
large number of motions , answers, and interlocutory orders. The principal
entries of formal papers are as follows charge in Case 13-CB-4687 filed by
Louis Kesner, February 7, 1973, and an amended charge filed on May 2,
1973, charge in Case 13-CB-4693 filed by Aaron Kesner on February 12,
1973, and an amendment thereto filed on March 27, 1973, complaint issued
in Case 13-CB-4693 on March 30, 1973; complaint issued in Case
13-CB-4687 on May 10, 1973, order consolidating cases and rescheduling
both cases, issued on May 10, 1973, Respondent 's motion to dismiss filed
May 14, 1973; General Counsel's answer to motion to dismiss filed May 21,
1973, amendment to complaint in Case 13-CB-4693, filed May 23, 1973,
original answers to complaints in Case l3-CB-4687 and Case 13-CB-4693,
filed May 31 , 1973; Respondent's amended answer in Case 13-CB-4687,
filed June 5, 1973; amended complaint in Case 13-CB-4687 issued on June
13, 1973, hearing held in Chicago, Illinois, on June 27, 28, and 29, and July
3, 5, and 17, 1973, briefs of General Counsel and Respondent, filed August
6, 1973 Documents purporting to be briefs were filed by each of the
individual charging parties on August 7, 1973, and were read and
considered by me despite their untimeliness
T The complaint in the Aaron Kesner case (13-CB-4693 ) alleges, and the
Respondent does not contest , that Foster and Kleiser is a division of
Metromedia , Inc, a Delaware corporation ; that Foster and Kleiser
maintains its principal place of business in Chicago, Illinois, that the parent
corporation maintains and operates a number of corporations , including
by Ryder Truck Lines for damage to company property
and failing to report damage.
Case 13-CA-9801-Charge filed against Ryder Truck
Lines by Aaron Kesner growing out of the same circum-
stances as Case 13-CB-3273. Dismissed, and dismissal
upheld, by the Office of Appeals on October 2, 1970.
Case 13-CB-3290-Charge filed against Local 710, a
sister local of Local 705 which represents warehousemen
and miscellaneous categories of employees, by Aaron
Kesner, alleging discriminatory failure by that union to
represent him in a grievance relating to the doing of
Saturday work. Dismissal by the Regional Director was
upheld by the Office of Appeals on October 2, 1970.
Case 13-CB-3326-Charge filed against Local 705 by
Aaron Kesner, alleging discriminatory refusal to represent
Aaron Kesner. Charge dismissed by Regional Director.
Dismissal upheld by the Office of Appeals on October 2,
1970.
Case 13-CB-4065-Charge filed against Local 705 by
Louis Kesner, on November 11, 1971, alleging that Local
705 caused a trucking company, Woodcrest L & S, to
terminate Louis Kesner. Charge was dismissed by the
Regional Director on January 26, 1972.
Cases 13-CA-11505 and 13-CB-326-Charge filed by
Louis Kesner against Associated Transport, Inc., and
Local 705, alleging that Local 705 caused Associated
Transport to discharge Louis Kesner for discriminatory
reasons, and that Associated Transport illegally complied
the Local 705's request. Violation found and Board order
issued on May 23, 1973 (203 NLRB No. 139).
Case 13-CA-12272-Charge filed March 31, 1973,
against Foster and Kleiser, Inc., by Aaron Kesner, alleging
a violation of Section 8(a)(3) and (5) of the Act. A
complaint alleging a violation of Section 8(a)(5) was
authorized by the Office of Appeals on June 20, 1973,
relating to the failure of Foster and Kleiser to supply
information relevant to the processing of Aaron Kesner's
grievance relating the failure of Foster and Kleiser to recall
him. An informal settlement of this case was entered into
by all parties.3
Cases 13-CB-3571 and 13-CB-4457-Charges by the
radio and television stations, in various States other than Illinois , and that it
did a gross volume of business in the operation of said stations in excess of
$100,000 during the preceding calendar year. The complaint alleged in the
Louis Kesner Case (13-CB-4687) that Associated Transport, Inc, is a
Delaware corporation maintaining its principal place of business in New
York, N.Y., that it is engaged in the trucking business, and that , during the
preceding calendar year it derived in excess of $50,000 from transporting
merchandise from its Chicago, Illinois, terminal to points and places outside
the State of Illinois The Respondent does not contest this fact . Moreover,
the Board found in an earlier case (203 NLRB No 139) that Associated
Transport , Inc, was engaged in interstate commerce Accordingly, I find
that Foster and Kleiser Inc ., Metromedia, Inc, and Associated Transport,
Inc , are all employers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act Respondent also admits , and I find, that Truck
Drivers, Filling Station and Platform Workers Union Local No 705,
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , is a labor organization within the meaning of Section
2(5) of the Act
3 On the record in this case, Aaron Kesner indicated that he was satisfied
with an all-party precomplaint settlement concluded in Case 13-CA-12262
By the terms of this agreement Foster and Kleiser undertook to supply
Local 705 with copies of certain records still extant relating to their refusal
to recall Aaron Kesner in 1970 By letter addressed to me after the close of
the record in this case , Aaron Kesner complained that the Union did not
provide him with copies of the records supplied to them by Foster and
TRUCK DRIVERS, OIL DRIVERS, LOCAL 705
Gasoline Retailers Association of Metropolitan Chicago
against Local 705, alleging coercion of gasoline dealers and
their employees in a citywide organizing campaign. Some
82 violations of the Act were found by Judge Ohlbaum in
his decision in JD-394-73, issued June 29, 1973. These
cases do not involve the Kesner brothers.
The above-recited cases are all precursors of the charges
in this case. The charges herein were filed in February and
March 1973 but they touch upon events which, in some
instances, transpired 3 years earlier. The General Counsel
would have the Board examine into matters which plainly
occurred beyond the period of limitations, in order to
obtain necessary background with which to understand
events occurring within such period and also because such
events might serve to illumine the animus which he says is
held by Local 705 toward Aaron Kesner and his twin
brother, Louis. Respondent contends most vigorously that
such matters are time barred. An assessment of this case
takes on greater clarity when the facts are recited in a time
frame which is divided by the earliest date on which the
operative events of a violation could have occurred,
namely August 7 and 12, 1972. The pre-August 7 and 12
evidence is as follows.
On February 24, 1970, A. Kesner was referred by Local
705 to the Foster and Kleiser Company (herein called F &
K) for a job as a truckdriver. He was interviewed before
being hired by James A. Flannery. Flannery is now the
Chicago operating manager for F & K, and was then the
operating superintendent for F & K. Flannery testified that
he told A. Kesner that he was being hired as a temporary
replacement for driver Thomas Flood, who had called in
sick. F & K employs approximately four drivers. Accord-
ing to A. Kesner, he was being hired as a permanent
employee, having been told that Flood was going into the
hospital and would retire shortly after his hospitalization.
A. Kesner drove a semitrailer for F & K until April 22,
1970, when he and fellow employee William Sher were
called into Flannery's office on that date. Flannery laid off
both A. Kesner and Sher. Sher had more seniority than did
A. Kesner, but he was not qualified to drive a semitrailer
and thus confined his services to F & K to driving a so-
called straight job. Flannery told both men that a
reduction in business required the elimination of one
driver, and that Flood would be returning to work on April
27, so that a driver had to be laid off to make room for
Flood. According to A. Kesner, Flannery also said that if
he needed a semitrailer driver he would recall Kesner
ahead of Sher because Sher could only drive a straight job
or pickup truck, even though Sher preceded Aaron Kesner
in date of hire. Sher reportedly assented to this arrange-
ment.4
Kleiser. He requests that the record in this case be reopened to take such
evidence, and that I compel the Union to supply him with such documents
Whether or not the parties to a precomplaint settlement agreement in a CA
case which is not befoie me have, or have not, complied with the terms of
such agreement is a matter which should be addressed to the Director of
Region 13 and not to me. The same applies to any request to compel the
production of books and records subpenaed by the charging party.
Accordingly , this request is denied . As for reopening the record in this case,
there is no showing that the Charging Party could not, with due diligence,
have required the production of such records at the hearing herein. At the
hearing, he did not request a postponement for the purpose of enforcing any
subpena Accordingly, his motion to reopen the record is denied.
295
After his return in April, Flood continued to drive for F
& K until September 30, 1970, when he retired. On or
about March 29, 1971, Frank Reta, a full-service driver
who was at the top of F & K seniority list, retired. Just
before Reta retired, Sher was temporarily laid off for lack
of work. When Reta left, an opening existed. Flannery
called the union hall for a driver and spoke with Business
Agent Joseph Desmyter. Desmyter told Flannery that Sher
was now qualified to drive a semitrailer as well as a straight
job and suggested that Sher be placed in the position on a
trial basis. Flannery told Desmyter that he was not aware
that Sher could drive a semitrailer, but agreed to take Sher
back and try him out in Reta's slot . Early in January 1972,
Sher returned. Flannery gave Sher a driving test, found
him to be qualified, and retained him in the position of a
semitrailer driver on a permanent basis.
From time to time, F & K hires drivers on a daily or
casual basis. Such drivers are paid off at the end of the day
and do not acquire any seniority by virtue of their
temporary employment. From the date of his layoff in 1970
until the filing of his grievance in the early spring of 1972,
A. Kesner had been in contact with Sher occasionally on
personal business, and testified, on the basis of his
conversations with Sher, that Sher had in fact been recalled
several times by F & K and had declined the recalls up
until the time he was permanently rehired in March 1971.
Sher also informed A. Kesner that other drivers were being
used occasionally on a casual basis by F & K. Late in
January 1972, A. Kesner saw Sher on the street driving an
F & K semitrailer. At this point in time, he called Business
Agent Joseph Desmyter and complained that Sher had
been recalled by F & K in violation of the seniority
provisions of the contract. The following day, January 28,
1972, A. Kesner, who was then out of work, went to the
union garage to be dispatched. There were no calls for
drivers on this day. On his way home, he saw an assertedly
new driver, Leo Mann, who had not been employed at F &
K driving the spring of 1970, driving an F & K truck near
Lincoln and Western Avenues. A. Kesner called Desmyter
again and complained of a seniority bypass. He also
requested Desmyter to file a grievance. Desmyter called
him back and reported a conversation between himself and
F & K Superintendent Flannery in which Desmyter
requested Flannery to remove Mann at the end of the day
shift. A. Kesner persisted and told Desmyter that he
wanted to file a grievance for not being recalled. Desmyter
told him to forget it and refused to accommodate him. A.
Kesner switched his call to an unidentified girl in the
Union's complaint department, who reportedly informed
4 Art. 8, sec. 3, of the joint cartage agreement , here in issue , provides:
When it becomes necessary to reduce the working force, the last
employee hired shall be laid off first ; and when the force is again
increased , then Employees are to be returned to work in the reverse
order in which they were laid off.
Art. 8, sec. 4, of the joint cartage agreement provides.
A steady house driver shall have the right to elect to drive a vehicle
engaged in general truckage when the working conditions of the house
are changed . Seniority rights shall prevail in making such election
11
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him that he could not file a grievance without his business
agent's permissions He then phoned Union Attorney
Sherman Carmell, with whom he had become well
acquainted by virtue of previous involvement in a
multiplicity of other grievances and Board cases. Carmell
told A. Kesner that he did not need the permission of a
business agent to file a grievance. A. Kesner memorialized
his complaint against F & K in a letter to Desmyter,
reiterating the basis for his grievance. He also wrote a letter
to the operating chief of Local 705, Secretary-Treasurer
Louis F. Peick. This,letter, the first of many from A.
Kesner to Peick relating to F & K, launched the grievance
which forms the subject matter of this case.
Grievances relating to matters other than discipline or
discharge are governed by the terms of article 19, section 2,
of the joint area cartage agreement. This agreement was
concluded between Local 705, which is far and away the
largest union signatory, six other Teamsters locals, several
large employer associations, and many individual carriers.
It is a 3-year agreement which covers several hundred
individual employers and more than 25,000 city drivers
and helpers in the Metropolitan Chicago area. Article 19,
section 2, provides only a two-step grievance procedure.
Within 5 days after notice of filing of a grievance, the
union and the affected employer are obligated to meet to
see if the matter can be informally adjusted. If this meeting
is deadlocked and the union and the employer are unable
to arrive at an adjustment, the matter is referred to what is
commonly called the 12-man board.? This board, formally
called the joint grievance committee, is composed of six
employer representatives selected by specified trade associ-
ations, and six union representatives, whose mode of
selection is not specified. Traditionally, Local 705 has
always nominated several union representatives to this
board. The 12-man board meets once a month, normally
on the second Wednesday, to consider grievances which
are deadlocked by the immediate parties to a dispute. In
performing its function, the 12-man board adopts informal
rules of procedure and keeps minutes summarizing its
actions, although it does not keep a verbatim transcript of
its proceedings. Parties to the second-step proceeding are
notified of the time and place of the hearing and are
afforded the opportunity to appear personally or through
counsel and to present their viewpoints and supporting
evidence. The board is empowered by the contract to
require employers to produce books and records which are
relevant to the dispute. After hearing the disputants, the
board excuses them, discusses their case privately, and
takes a secret ballot vote. A majority vote of those present
is binding on the employer, the union, and the grieved
employee. If the board deadlocks, no reference of the case
to a neutral may be made under the contract. Instead, the
contract specifically provides, in the event of a deadlock,
6 Local 705 services about 25,000 employees in the Metropolitan
Chicago area It employs approximately 40-45 business agents to assist in its
various functions, and assigns them to particular "barns," or employers, as
the special responsibility of that agent F & K is one of about 200 "barns"
serviced by Desmyter.
7 In former times , before its composition was enlarged , the joint
grievance committee was referred to as the 10-man board
8 Art 8, sec . I(a), of the agreement provides "in the event of a layoff an
that "either party shall be entitled to all lawful economic
recourse to support its position in the matter."
On March 28, 1972, A. Kesner met with Flannery, F & K
Operations Manager Harold Smith, Desmyter and Union
Business Representative Donald Heim . Heim was previ-
ously acquainted with A. Kesner, having participated in
processing the grievance filed by A. Kesner in conjunction
with his dismissal from Ryder Truck Lines in 1969. In their
discussion of the grievance, A. Kesner claimed that he had
seniority over Sher, despite Sher's earlier date of hire,
because at the time of the layoff of the two men in 1970,
Sher could not drive a semitrailer while A. Kesner could.
Hence, according to Aaron Kesner's reasoning, when a
recall of a driver of a semitrailer was made by F & K, he
should have been recalled rather than Sher since he had
seniority as to the type of vehicle which Sher was now
operating. A. Kesner also complained that various persons
had been employed by F & K on a casual or temporary
basis after Sher's recall, so that he, rather than unnamed
casuals referred by the Union, should have been em-
ployed.8 He wanted the Company to produce books and
records indicating the names and dates of employment of
these casuals so that he could establish a seniority bypass
and then be paid an amount equivalent to what had been
earned by F & K's temporary hires. Heim expressed to A.
Kesner at this meeting as well as on the stand the opinion
that A. Kesner did not have seniority vis-a-vis Sher,
because seniority is determined by chronological priority
of service in a particular "barn," not by time worked on a
particular vehicle or class of vehicles used by any given
employer. Desmyter agreed .9 Flannery contended at this
meeting that A. Kesner had not acquired seniority at F &
K of any kind, inasmuch as he was hired in February 1970
as a temporary employee during the absence of Thomas
Flood. He argued that A. Kesner had no permanent status
and no seniority standing entitling him to a recall under
any circumstances. A. Kesner complained that Heim
expressed no interest in hearing his side of the case and
took no interest in his position until he threatened to go to
the Board. A union attorney, Stephen Horwitz, happened
to be in the building at the time, interceded to calm down
the parties to this discussion, and then suggested to Heim
that the matter be referred to the joint grievance commit-
tee. Heim then deadlocked the first-step discussion and
thus sent to the 12-man board the question of whether A.
Kesner had ever acquired permanent status entitling him
to be recalled as a laid-off employee in preference to
casuals.
The board was originally scheduled to hear the case on
April 12, 1972. However, by the time his case was called A.
Kesner had absented himself to attend a civil court trial, so
the matter was set over for the next committee meeting on
May 10, 1972. In the interim, as detailed in Judge Powell's
decision in Associated Transport, 203 NLRB No. 139, L.
employee so laid off shall be given two (2) weeks' notice of recall mailed to
his last known address Unless physically unable to do so, an employee must
respond to such notice within three (3) days receipt thereof and actually
report to work in seven (7) days after receipt of notice unless otherwise
mutually agreed to In the event the employee fails to comply with the
above , he shall lose all seniority rights under this agreement "
9 Article 8, sec I, of the agreement provides " (a) Employee seniority
and not the equipment shall prevail for all purpose and in all instances"
TRUCK DRIVERS, OIL DRIVERS, LOCAL 705
Kesner was discharged by Associated Transport on April
28 at the request of Local 705. On May 4, 1972, L. Kesner
filed the charges which resulted in the issuance of a
complaint in that case.
L. Kesner testified that in November 1971 he was
driving a truck for Woodcrest L & S and had encountered
Local 705 Business Agent Harold Henkle on the street near
Ashland and Adams. He lost his job with Woodcrest and
went to the union office to apply for union membership
and a job referral. Henkle, who was at the union garage
from which referrals are dispatched, told him to "get the
hell out of the hall." On November 11, 1971, Louis Kesner
filed an unfair labor practice charge against Local 705,
alleging that it had caused Woodcrest to terminate him
(Case 13-CB-4065). The charge was dismissed by the
Regional Office on January 26, 1972, and the dismissal was
sustained on appeal.
L. Kesner also testified that in 1971 he had worked for
various employers on referral from the Local 705 union
hall, despite the fact that he was not a member. He
mentioned that Local 705 Business Representative Louis
Fina had given him referral slips to such unionized carriers
as Roadway, Werner Continental, Strack, and PTL
Cartage. On April 28, 1972, when he was discharged at
Associated Transport, L. Kesner went to the union hall,
saw Fina,10 exhibited a withdrawal card from an independ-
ent trucking union he had belonged to years before, and
asked Fina for a referral. Fina said that Associated
Transport had called and had instructed Local 705 not to
send out either of the Kesner brothers. Louis Kesner
disputed that such a phone call had been made and said he
would check up on it. Both Fina and Business Representa-
tive Bruno Fillipmi told Louis Kesner in vulgar language to
get out of the hall and that he would not be working for
Associated any more.
On May 10, 1972, A. Kesner showed up for the joint
grievance committee hearing, which is regularly held in the
basement of the office building in which Local 705 makes
its headquarters. He reported to the Local 705 office,
10 Fina and Fillipini work in a cashier's window, or "cage," which is the
initial union office encountered by any visitor to the Local 705 office in
addition to their other duties, they serve in effect as receptionists for the
200-300 persons who come to the union hall during a normal business day
ri In a letter supposedly written on May 10 to his brother and offered by
the General Counsel to corroborate A Kesner's testimony, A. Kesner
attributed the threat to Desmyter rather than to Heim, and placed the time
of the remarks as being after, not before, the board's meeting.
iY At the first-step grievance meetings, the parties often prepare a short
memorandum in the nature of an agenda minute to sum up the results of the
meeting Sometimes these memoranda are signed by all participants and
sometimes they are not The joint grievance committee proceedings are
more formal and are regularly transcribed in summary, not verbatim, form
by one or more clerical employees of Local 705 who, on behalf of the
committee , then type their summarized versions of the proceedings,
circulate them for correction to the members of the committee, and then
regularly file them in a permanent record maintained by the committee.
Local 705 proffered both kinds of documents as original probative evidence
They were received by me not as primary evidence but merely to
corroborate testimony relating to the proceedings which they memorialize.
A further examination of these documents convinces me that first-step
agenda minutes and the summaries of the 12-man board meetings are
admissible as primary evidence under the Federal Shophook Rule, 28
U S C. 1732, as they are business records kept in the regular course of
business N LR B v. Local 40, International Association of Neat and Frost
Insulators and Asbestos Workers, 451 F 2d 119, 121 (C A 2, 1971)
Accordingly, any limitation placed on their admissibility at the hearing by
297
located on the fifth floor of the building, and was first
ushered into the business agents' room, a large office space
containing desks used by several business representatives.
When he asked when his case was going to be heard, Heim
reportedly stated to all who were present that "this guy,
Kesner, has a twin brother that we got off the trucks at
Associated Transport. If we catch him on the truck, we are
going to break his arm and legs" and threatened the same
treatment to A. Kesner. He also reportedly said he would
try to get A. Kesner expelled from the Union. When A.
Kesner threatened to go to the Board, Heim reportedly
said: "If you go down to the Labor Board, I'll knock you
on your ass." Business Agent Al Ceas reportedly said, "I
better not catch you or your brother working out of my
barns. Otherwise you and your brother will end up in the
trunk of my Cadillac." Heim flatly denies the remarks
attributed to him."
Shortly after this asserted confrontation, the participants
proceeded to the basement of the building for the regular
joint grievance committee meeting. On this date, the
meeting was presided over by Local 705 Secretary-Treasur-
er Peick. A. Kesner repeated to the Board the contentions
he advanced to the first-step hearing. Flannery denied that
Aaron Kesner had ever acquired any seniority rights. A.
Kesner claims that the board then decided the case in his
favor, meaning that it concluded that he had been
permanently hired by F & K on February 24, 1970, that he
was entitled to reinstatement, and that the Company
should produce payroll records indicating the number of
persons employed and hours worked by those less-senior
employees who had bypassed him on the F & K seniority
roster, in order to compute the backpay which was due to
him. The minutes of the meeting reveal something quite
different.12 They state, in pertinent part:
. , , it was decided that this case be referred back to
the parties and that the Union Representative check all
employment records of Mr. Kesner and payroll records
to determine whether Mr. Kesner was hired as a
me is hereby overruled The charging parties requested at the hearing, and
in their postheanng memoranda to me, that I grant the same unlimited
admission to various letters and notations proffered by them and by the
General Counsel as primary evidence. At the hearing, such matters were
admitted only insofar as they tended to rehabilitate the testimony of the
declarants, to denote the registration of a complaint, or to indicate the
dissemination of a threat, but not as primary evidence of the matters
contained therein It was the custom of Aaron Kesner after each meeting
concerning his grievance to write a letter to Secretary-Treasurer Peick, to
some other union official, or to his brother, or to make some written
notation concerning the events of the meeting These partisan accounts can
hardly qualify as records kept in the regular course of business, unless one
assumes that it is the regular course of Kesner's business to file grievances
and charges In light of A Kesner's litigious history, it seems quite clear to
me that these documents were prepared with the thought of possible
litigation in mind and are thus suspect on that ground alone Accordingly, I
deny his request to treat such documents as primary evidence of the facts
they contain Instead, the testimonial utterances of the witness at the
hearing are treated as his primary evidence, to be weighed as any other
testimony in light of other evidence contained in the record. Gouverneur Iron
Works, Inc, 149 NLRB 316, 617, Brotherhood of Railway, Airline and
Steamship Clerks, (Safety Cabs, Inc), 180 NLRB 126; Dorwood Rental
Company, 178 NLRB 635, N LR B v Amalgamated Meat Cutters and
Butcher Workmen of North America, Local 127 [Armour Creameries], 202
F.2d 671, 673 (C A 9, 1953): N L R B v Local 776, International Alliance of
Theatrical and Stage Eniplovees [Cascade Pictures Col 303 F.2d 513,
519-520 (C A. 9, 1962)
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replacement driver or as a steady employee and
whether or not the Company worked extra men without
recalling either Mr. Kesner or Mr. Sher, in which
instance the men would be compensated for lost time.
A few days after the May 10 hearing, Aaron Kesner
inquired of Desmyter whether or not he had obtained the
additional records requested by the 12-man board. Des-
myter replied that he was working on it. Several other calls
in the ensuing months evoked the same inconclusive reply.
A. Kesner testified that, in the course of one such call,
Desmyter told him that he knew that his brother Louis'
case was coming up for hearing soon and warned A.
Kesner not to get involved in it. A. Kesner's reported reply
to Desmyter was to mind his own business. Desmyter flatly
denies issuing such a warning. Having gotten no results
from Desmyter, A. Kesner again wrote to Peick to
complain about Desmyter's inaction and footdragging in
obtaining compliance with the joint grievance committee's
May 10 request for records.
The L. Kesner case against Associated Transport and
Local 705, alleging the discriminatory discharge of a
nonunion driver, came on for hearing before Administra-
tive Law Judge Powell on three dates-July 24, August 31,
and September 1. Just before the case began, L. Kesner
received a call from Union Business Agent Charles
Cullman, now deceased, who asked him if he thought he
was going to "get away with it." The reference was
presumably to the forthcoming case. On none of these
occasions did A. Kesner testify or appear in the hearing
room on his brother's behalf. His only connection with the
investigation or trial of that case was a private phone call
which he placed late in August to Stephen S. Schulson, the
counsel for the General Counsel, volunteering to cooperate
and to testify in the prosecution of the case.13 Schulson
told A. Kesner that he would call him if he needed him, but
apparently Schulson did not need A. Kesner's testimony as
he never called him.
During this same period of time, estimated by A. Kesner
as being sometime in August,14 he went to the union
garage where he encountered Harold Henkle, the union
business agent who is in charge of dispatching drivers for
referral. Henkle reportedly said to A. Kesner that, if he
ever caught his brother driving trucks, he would kill him,
and added that if Peick ever found out that he had referred
L. Kesner for jobs, he (Henkle) would be in trouble with
the Union.
B. Events Occurring After August 7 and 12, 1972
On August 29, 1972, A. Kesner returned to the union
office for a renewed first-step grievance meeting relating to
the production of F & K records , and whatever contract
violations those records might reveal . The meeting was
held in the business agents' large office . In attendance were
13 Aaron Kesner said that he gave a statement to the NLRB in support
of his brother's case It does not appear whether it was an oral or written
statement . No conventional wntten affidavit was introduced. Accordingly, I
interpret A Kesner's phone call to Schulson as his "statement to the
Board " In any event , no statement of A Kesner, either oral or written, was
ever made known to the Respondent.
14 Henkle and A. Kesner had previously had disputes on the street
concerning L Kesner s utilization of the Union 's referral service in
Flannery, Desmyter. Heim, and Union Business Repre-
sentative Peter W. Janopoulos. Desmyter reportedly said,
in the course of the meeting, that A. Kesner had a twin
brother "that we got off the trucks at Associated and we're
not going to let him drive any trucks and he can't get into
the Union." Other unnamed business agents reportedly
chimed in on the conversation, adding that they knew A.
Kesner's brother had worked for Associated Transport,
and had filed charges with the NLRB. Desmyter reported-
ly asked A. Kesner if he was going to testify in his brother's
case. A. Kesner said that he replied to the effect that it was
none of Desmyter's business. Heim reportedly told A.
Kesner that he had better not testify in the L. Kesner case
or he would kill him. Heim reportedly said "Peter
Janopoulos almost killed you three years ago, but I'll do
the job this time ." The union principals to these conversa-
tions flatly deny them. Thereafter, they moved to a
conference room, where Janopoulos asked Flannery if he
had brought the F & K records requested at the May 10
hearing. Flannery said no. When asked why not, Flannery
replied "this guy's got no claim. I wouldn't give him
anything." Desmyter reportedly said that he "never
represented this guy to begin with and I'm not going to do
it now." At this point, Peick came into the room, allegedly
criticized Desmyter and Heim, and asked where the
records were. Flannery replied that he was not going to
submit them. Peick then insisted that he wanted the
records brought in. The meeting concluded on this note.
Shortly thereafter, A. Kesner made a written summary of
the meeting and mailed it to his brother.
Flannery testified credibly that, shortly after the May 10
hearing, he mailed to the Union Kesner's employment
application form, his health and welfare and pension
statements , and a notice he had received from the Union
giving F & K a refund for health and welfare contributions
which had mistakenly been paid by F & K for Thomas
Flood while Flood was off sick. Throughout the course of
these proceedings, and until the settlement of the charge
filed on March 31, 1973, in Case 13-CA-12262, F & K
refused to produce any records other than those bearing
directly upon the question of A. Kesner's initial employ-
ment as a temporary or steady employee. Throughout the
course of the grievance proceedings here in question, F &
K furnished no payroll records showing persons hired after
A. Kesner's layoff, on the theory that those documents it
had produced established that A. Kesner was not entitled
to recall, either temporarily or permanently, that no
seniority bypass had occurred, and therefore whom it hired
and how much it paid them for work performed after April
22, 1970, was immaterial to the Kesner grievance and the
issues before the 12-member board. While the term
"records" is variously used in the conversations of August
29 and thereafter, the records principally in dispute were
necessarily the payroll records of F & K casual employees
December 1971, A. Kesner met Henkle, who had mistaken him for L
Kesner A. Kesner asked Henkle why he was trying to prevent Louis Kesner
from working Henkle replied that if he caught Louis Kesner working, he
would kill him. On that occasion , when A . Kesner threatened to report any
such action to the authorities , Henkle reportedly said, "If you go, I'll kill
you too." I include this episode in a recitation of the pre -August 7 and 12
events, as it does not appear from the record whether it occurred before or
after these significant dates
TRUCK DRIVERS , OIL DRIVERS , LOCAL 705
who assertedly had bypassed A. Kesner by being employed
after he was laid off.
On October 18, 1972, another first-step meeting was held
at the union office. In addition to A. Kesner, the meeting
was attended by Flannery, Desmyter, and Heim. Bruno
Fillipini also happened to be there. When A. Kesner
arrived, Fillipini reportedly said to other union agents in
Kesner's presence that "this fellow's brother ran down to
the Labor Board and filed charges against the Union." He
also reportedly said to A. Kesner, "we know your brother's
working and we are going to keep him off the trucks, and if
you don't like it you can run to the labor board too."
Fillipini denies these remarks. When A. Kesner was
admitted to the business agents' room where the meeting
was to take place, Heim reportedly said to him, "You
better get the hell out of here because I'm not going to
represent you. You have no claim. You're going to have to
represent and fight your own case." Desmyter reportedly
said that he was not going to represent him. Both deny
these remarks. Business Representative Ray Kolb report-
edly said to Aaron Kesner after he threatened to file unfair
labor practice charges, "You sit down and keep your
mouth shut or I'll knock you on your ass. You're not going
anywhere. You're not going to no labor board." Kolb
denies this statement.
Those assembled for the first-step meeting then proceed-
ed to a nearby conference room, where Janapoulos asked
Flannery for the records. The Company produced Aaron
Kesner's employment application and the other records
previously furnished, claiming that, as Kesner had no
seniority, it was not obligated to produce any other records
relating to persons who were hired after he had been laid
off. Janapoulos objected that the application form had the
word "temporary" written on the bottom of it on this
occasion, complaining that the word did not appear when
the application was exhibited previously. Flannery stated
that A. Kesner was always a temporary employee and that
the Union was not going to make him into anything else.
He said he brought no other records because he had no
authority to do so. Janapoulos observed that they all had
been wasting a lot of time for nothing. When it appeared
that the matter was again going back to the 12-man board
for resolution, Peick appeared and told Flannery that, if
the case did go back to the committee, F & K would pay a
thousand dollars in costs. Flannery said at the meeting that
he was not amenable to any compromise.
After the meeting was over, Desmyter approached
Flannery in the hallway and asked him if F & K would
consider any kind of a compromise. Flannery replied that
he had no authority to negotiate one, but asked Desmyter
what he had in mind. Desmyter suggested that F & K
might agree to pay A. Kesner's delinquent health and
welfare payments, which then amounted to about $900,
15 I credit Flannery. I cannot believe that he would take the trouble to
bring to the attention of company headquarters a settlement offer to which
he was personally opposed if he did not have advance assurance that A.
Kesner would accept it.
is it should be noted at this point that, in July 1972, while the F & K
matter was pending in the grievance machinery, Local 705 referred A.
Kesner for employment to Glendenning Motorways The position which A.
Kesner accepted was a permanent job with a unionized carrier who, like F
& K, operates under the provisions of the joint cartage agreement A
299
together with a month's salary in full settlement of the
grievance. The total package he estimated to be around
$1,500 or $1,600. Flannery did agree to bring the offer to
the attention of company headquarters in Los Angeles. At
the same time, Janopoulos asked A. Kesner privately
whether he would accept a compromise, and suggested a
payment by F & K of A. Kesner's delinquent health and
welfare payments plus I month's backpay. According to
Janopoulos, A. Kesner told him to "go ahead. I will accept
that if the Company will." Janopoulos also went to
Flannery and asked him if the proposition was acceptable.
Flannery told Janopoulos he would have to seek approval
from company headquarters. They all came back together
where A. Kesner was standing. Flannery testified that A.
Kesner agreed to the proposal. Kesner denies he agreed to
it. and asserts that he continued to demand reinstatement
and full backpay.ia Flannery contacted his company's
headquarters and, 2 days later, phoned Desmyter and A.
Kesner to relay the Company's approval of the proposal.
In his telephone conversation with Kesner, Flannery said
that he could have the check made out and available at the
union hall the following day. Kesner replied "I don't know
anything about it. Take it up with the Union," and, in
effect, disowned the settlement. Accordingly, the matter
came back for hearing before the joint grievance commit-
tee on November 8.i6
Just before the joint grievance committee meeting on
November 8, Janopoulos spoke privately with A. Kesner
and urged him to take the company offer, advising him
that, if the matter went to the board for a decision, he
would lose his case . A. Kesner insisted that he would
accept nothing short of what he felt the joint grievance
committee had awarded him on May 10; namely full
reinstatement and full payment for all seniority bypasses
which had occurred since he was laid off in April 1970.
The joint grievance committee heard the dispute in its
regular turn. A. Kesner and Flannery reiterated to the
committee their conflicting views at some length. A.
Kesner asked the board to reaffirm what he felt was its
May 10 decision on his behalf, and complained to the
board that the Company had never produced all of the
records it was required to make available. Heim stated that
he felt that Kesner could not accrue seniority in two
different "barns" at the same time , and that if the board
should rule that he was entitled to payment for so-called
seniority bypasses, it would in effect be ruling that any
employee who had worked in a series of different "barns"
under the joint cartage agreement could accrue and hold
seniority with several employers simultaneously. He
expressed the opinion that such a situation would be
contrary to the agreement and the practice in the industry
and would generally upset labor relations in the area. The
joint grievance committee voted to disallow the grievance
Kesner was employed at Glendenning throughout the remaining processing
of the F & K grievance , and was still employed at Glendenning when the
present case came on for hearing in June and July 1973. Glendenning is
another of Desmytei s "barns." It is undisputed on this record that , shortly
before the unfair labor practice hearing in this case, Glendenning sought to
discharge A Kesner for physical incapacity and inability to pass certain
tests. Desmyter interceded on A. Kesner 's behalf and prevailed upon
Glendenning to retain A. Kesner in a limited-service position where his
physical limitations would not impair his performance.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entirely. In the regular minutes of the committee meeting,
the following entry was made:
After considering the evidence, including the fact
that during the eleven month period in question
between 1970-1971, Aaron Kesner knew that Sher had
been recalled and refused the job and filed no
grievance; that the Company did not increase the work
force during the period; that he did not grieve when
Flood returned; and that the present grievances was
not filed until March of 1972; upon motion and a
second, the grievance is denied. Majority vote.
The Company, the driver, and the agent were called
back into the room and so notified.
A. Kesner claimed that, after the hearing, Heim made a
gloating remark to the effect that he had told Kesner he
was not going to get anything, and to get the hell out of the
union hall. Heim denies these remarks.
On December 26, 1972, A. Kesner appeared at the union
hall to pay his dues m person. Dues are paid at a cashier's
window, or "cage," which is normally occupied by either
Bruno Fillipini or Louis Fina. According to A. Kesner,
Fina asked for his identification, saying "I want to be sure
that you are Aaron Kesner and not your brother, Louis,
that I am taking union dues from, because we don't want
him in the union and I don't want to get stuck with him."
A. Kesner showed him an identification, but Fina refused
to accept a dues check, telling him to come back the
following day. Fina reportedly added that the Union
receives health and welfare reports from employers and
will know if L. Kesner is working, and will stop L. Kesner
from working for unionized employers. A. Kesner argued
with him briefly and was told to return the following day.
A. Kesner returned the following day, sought to pay his
dues, and was again requested by Louis Fina to present an
identification. This time Fina accepted A. Kesner's dues
check, but added that the Union stopped L. Kesner from
working at Associated and would stop him from working
on any other unionized employer's trucks. A. Kesner
communicated this conversation to his brother. Fina
denies having any run-ins with A. Kesner. He denied ever
knowing of or about L. Kesner until immediately before
the trial in the present case. He denied making any
statement concerning the Union's efforts to stop L. Kesner
from working at Associated Transport, denied discussing
L. Kesner with A. Kesner. He did not recall A. Kesner's
presence at the union hall in late December 1972.
L. Kesner testified that, in 1971, he worked for a total
of 18 trucking companies, including such unionized
employers as Terminal Transport, Tripp Cartage, Wilson
Freight Company, Tucker Freight, Inc., Werner Continen-
tal, and Farquahar Cartage. None of these employers then
required that he produce a union card before being hired.17
He also testified that, after the conclusion of the NLRB
hearing in his case on September 1, 1972, he applied for
work with several employers, including most of the
aforementioned, and all of those named, except Farquahar
Cartage, required that he produce a referral slip from Local
it L. Kesner gave a pretrial statement to the Board that, since his
hearing, Wilson Freight, Farquahar Cartage, R & V Cartage, and Mid-
Continent, all unionized carriers , had employed him Except as to
705 before they would hire him. He worked for Farquahar
up to November 27, 1972. It was his belief that the Union
caused these employers to demand a referral slip and to
refuse to hire him because he had filed charges and
testified in the Associated Transport case although there
was no evidence introduced in the record that the Union
had contacted any of these employees with reference to L.
Kesner. There is also no evidence that L. Kesner presented
himself at the union hall for referral after September 1,
1972.
C. Analysis and Conclusions
1. Union responsibility for the acts of various
representatives
Respondent formally admits that Louis F. Peick, its
secretary-treasurer, is and was an agent whose acts might
impose upon it vicarious liability. It admits that Donald
Heim and Joseph Desmyter occupied positions as business
representatives but denies responsibility for their actions. It
also denies responsibility for the acts of other business
agents and representatives who were mentioned in the
testimony. In its yearly filing with the Department of
Labor, Local 705 lists under oath the following persons
and their salaries:
Bruno Fillipini, Trustee $24,544.00 18
(Officer)
Joseph Desmyter, Bus. 24,544
Rep.
Louis Fina, Bus. Rep. 16,355
Donald Heim, Bus. Rep. 19,205
Harold Henkle, Bus. Rep. 16,555
Peter Janopoulos, Bus. 20,169
Rep.
Raymond Kolb, Bus. Rep. 16,355
Albert Ceas, Bus. Rep. 24,544
Fillipini, Heim, and Desmyter are elected to their positions
by the entire membership of the Local. The others are
appointed . Business representatives are obligated, accord-
ing to the Local's constitution and bylaws, to act as
organizers, to endeavor to settle differences between
employer and employees, to collect dues, fines, and
assessments , and to perform such other duties as the
secretary-treasurer may direct. In their testimony, the
above-named persons, other than Ceas and Henkle,
outlined similar or related duties while acting in the full-
time employment of Local 705. It is clear to me from such
evidence that, at all times material hereto, Louis F. Peick,
Bruno Fillipini, Joseph Desmyter, Louis Fina, Donald
Heim, Harold Henkle, Peter Janopoulos, Raymond Kolb,
and Albert Ceas were agents of Local 705, for whose acts
and omissions Local 705 bears responsibility under the
Act. I so find and conclude. International Longshoremen's
and Warehousemen's Union, C.I.O. (Sunset Line and Twine
Company), 79 NLRB 1487.
Farquahar, he repudiated this statement on the stand.
iN At the hearing in this case , Fillipini testified that he was employed by
Local 705 as a clerk
TRUCK DRIVERS , OIL DRIVERS, LOCAL 705 301
2. The application of Section 10(b), and alleged es between the charges and the complaints , and whether
variances between the charges and complaints the violations alleged in the consolidated complaints are
time-barred . Because of the multiplicity of charges,
A considerably thornier question is posed by the complaints , and amendments thereto , it is helpful to set
Respondent as to whether there are impermissible varianc - them forth in tabular form:
Louis Kesner Case 13 --CB--4687
Date Entry
2/7/73 8( b) (1) (A) &
(2) charge
5/2/73 amended
Substance of 10 (b) period
Allegation Began
Attempts to cause 8/7/72
employer not to hire
Kesner because of
cooperation with Bd.
in Associated case
Threats to employees 11/2/72
charge to cause employers not
8(b) (1) (A) to hire Kesner for
& ( 2) cooperating with Bd.
in Associated case
5/10/73 Original Oct. 18, 1972, Heim
complaint told A. Kesner he would
see to it that
L. Kesner did not work
because he filed
charges Dec . 26 and 27,
1972. Fina said Union
was keeping L. Kesner
from working because he
filed charge.
6/13/73 Amended Since Sept . 1, 1972,
complaint Resp . caused and attempted
to cause employers to
refuse to employ L. Kesner.
Since Sept. 1, 1972, Resp.
refused to refer L . Kesner
for discriminatory reasons.
Aaron Kesner Case 13--CB--4693
Date
Substance of
Entry Allegations
10(b) period
Bean
2/12/73 Original Resp. discriminatorily 8/12/72
charge failed to represent
A. Kesner during
grievance proceeding
because he (A. Kesner)
filed charges.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3/27/73 Amended Adds that the illegal 9/27/72
charge acts of Resp. against
A. Kesner, charged on
Feb, 12, were prompted
in reprisal against
protected acts of
L. Kesner as well as
against protected acts
of A. Kesner himself.
3/3/73 Original August 29, 1972, Desmyter
complaint threatened A. Kesner if
he testified in L. Kesner
case . Aug. 29, 1972, Heim
threatened A. Kesner if
he testified in L. Kesner
case. Oct. 18, 1972, Kolb
threatened A. Kesner if
he filed charge. Oct. 18,
1972. Heim threatened
A. Kesner if he filed
charge.
5/23/72 Amended Since Feb, 1972 Resp.
complaint failed to represent
A. Kesner fairly in
grievance proceeding.
Long before a period of limitations was written into the
Act, the Board and courts were called upon to determine
whether violations alleged by the General Counsel in a
complaint ranged too far afield from the allegations found
in the initial charge which vested the Board with jurisdic-
tion to proceed. The first Supreme Court guidance in this
area was given in National Licorice Company v. N.L.R.B.,
309 U.S. 350 (1940), when it said:
We can find no warrant in the language or purpose
of the Act for saying that it precludes the Board from
dealing adequately with unfair labor practices which
are related to those alleged in the charge and which
grow out of them while the proceeding is pending
before the Board. The violations alleged in the
complaint and found by the Board (in this case) were
but a prolongation of the attempt to form a company
union and to secure the contracts alleged in the charge.
All are of the same class of violations as those set up in
the charge, and were continuations of them in
pursuance of the same objects. The Board's jurisdiction
having been invoked to deal with the first steps, it had
authority to deal with those which follow as a
consequence of those already taken.
After the introduction into the Act of a comparatively
short period of limitations, this question became more
acute, but it rarely occurs that a complaint is dismissed
because it has expanded unduly upon a timely charge.19 In
Kiekhaefer Corporation, 127 NLRB 1381, enfd. 292 F.2d
130 (C.A. 7, 1961), the Seventh Circuit stated that the
Board is empowered to deal with unfair labor practices
which are related to those alleged in the charge and which
are of the same class of violations as those contained in the
charge, or which were a continuation of such acts done in
pursuance of the same objects. In Stafford Trucking Inc.,
154 NLRB 1309, enfd. 359 F.2d 829 (C.A. 7, 1966), the
Seventh Circuit also approved of a complaint, based upon
a second amended charge, which was time barred, where
the second amended charge contained allegations which
were merely refinements of, and related back to, the
Respondent's conduct which was charged in an earlier and
timely charge. In North Country Motors, Ltd., 133 NLRB
1479, the Board found that a complaint, alleging a
violation of Section 8(a)(3) of the Act, was sufficiently
supported by a charge alleging violations of Section 8(a)(l)
and (5) of the Act, because the additional violations set out
in the complaint took place during the same sequence of
events to which the charge was aimed. A similar expansion
upon a charge in a complaint was approved by the Second
Circuit in N.L.R.B. v. Pecheur Lozenge Co., Inc., 209 F.2d
19 Cf. Red Ball Motor Freight, Inc, 157 NLRB 1237, N L R.B. v. George
A Vare, and Edwin H Yare, d/b/a McCarron Co., 206 F 2d 543 (C.A. 3,
1953).
TRUCK DRIVERS, OIL DRIVERS, LOCAL 705
393 (C.A. 2, 1953), and upon the same general theory.
Thus, where a charge alleges intimidation of one named
employee, the Board and courts have found it to be
sufficient to support a complaint alleging intimidation of
others when the conduct takes place in the same general
course of the Respondent 's conduct . Texas Industries, Inc.,
139 NLRB 365, enfd. 336 F.2d 128 (C.A. 5, 1964). See also
Stainless Steel Products, Incorporated 157 NLRB 232;
N.L.R.B. v. Central Power & Light Company, 425 F.2d 1318
(C.A. 5, 1970).
One of the broadest court approvals for inclusion of
charged conduct in a complaint was made by the Seventh
Circuit in N.L.RB. v. Kohler Company, 220 F.2d 3 (C.A. 7,
1955). In that case the charge set out certain discriminatory
discharges. The complaint added a number of independent
violations of Section 8(a)(1), which had no direct bearing
on the discharges other than that they took place in the
course of the same protracted struggle between the same
union and the same company. The court upheld a Board
order founded upon the expanded complaint, saying that
the only limitation upon the expansion of a complaint is
that the Board may not get
so completely outside the situation which gave rise to
the charge that it may be said to be initiating the
proceeding on its own motion . . . To hold that the
Board cannot include anything in a complaint that the
respondent was not given notice of in a charge would
greatly reduce the usefulness of the Board 's investiga-
tive function. A major reason for having a General
Counsel of the Board take over and try the charging
parties' case is to make it possible for single employees
to enforce their rights in an area where that takes
considerable money and experience. The courts should
not defeat this purpose by insisting that the failure of
the charging party to initially describe in detail all the
separate alleged unfair labor practices shall limit the
issues to be alleged in the complaint and tried by the
Board.
Tested by these admittedly flexible standards, I conclude
that the L. Kesner charge of February 7, 1973, and the A.
Kesner charge of February 12, 1973, are sufficiently broad
to include the kind and class of all violations attributed to
Local 705 in the two original and amended complaints,
quite apart from those allegations set forth in the amended
charges which were filed sometime later and which set
forth the allegations with greater refinement. Considered in
tandem, the initial charges allege illegal coercive tactics by
the same Respondent against two closely related individu-
als growing out of considerations of union membership
and the efforts of either or both of them to exercise
statutory rights in seeking redress under the Act. As such,
these charges address one intertwined course of conduct on
the part of the Respondent which is also the subject of the
amended complaints. As more fully set out later on, the
difficulty confronting the General Counsel and the
Charging Parties herein lies not with the charges or the
20 Happily , from the standpoint of measuring variances between charge
and complaint, no operative facts of a violation appear to have occurred in
303
complaints , but with the evidence available in the record to
support them.
One further and related matter must be resolved. The L.
Kesner charge can result only in a suppression of illegal
conduct occurring after August 7, 1972. The A. Kesner
charge can result only in suppression of illegal conduct
occurring after August 12, 1972.20 As this record is replete
with testimony concerning events occurring outside the
limitation period, a question necessarily arises as to its
evidentiary character and operative effect . In this regard,
our principal guide is Local Lodge No. 1424, International
Association of Machinists, AFL-CIO v. N.L.R.B. [Bryan
Manufacturing Company], 362 U.S. 411 (1960), where a
broad standard , not always easy of application, was laid
down by the Supreme Court. Said the Court:
It is doubtless true that Section 10 (b) does not
prevent all use of evidence relating to events transpiring
more than six months before the filing and service of an
unfair labor practice charge . However, in applying
rules of evidence as to the admissibility of past events,
due regard for the purposes of Section 10(b) requires
that two different kinds of situation be distinguished.
The first is one where occurrences within the six-month
limitations period in and of themselves constitute, as a
substantive matter , unfair labor practices . There, earlier
events may be utilized to shed light on the true
character of matters occurring within the limitations
period ; and for that purpose Section 10(b) ordinarily
does not bar such evidentiary use of anterior events.
The second situation is that where conduct occurring
within the limitations period can be charged to be an
unfair labor practice only through reliance on an earlier
unfair labor practices . There the use of the earlier
unfair labor practice is not merely "evidentiary ," since
it does not simply lay bare a putative current unfair
labor practice . Rather, it serves to cloak with illegality
that which was otherwise lawful . And where a
complaint based upon that earlier event is time -barred,
to permit the event itself to be so used in effect results
in reviving a legally defunct unfair labor practice. 362
U.S. 411, at 416, 417.
When tested by this standard, it clearly appears that the
violations alleged in the consolidated and amended
complaints, other than the failure of the Local 705 to give
A. Kesner even -handed representation in his grievance
against F & K, fall into the former category . If one accepts
the General Counsel 's theory of these cases , what is present
here is not a continuing violation of the Act but a
continuing attitude of hostility on the part of Local 705
toward the Kesners which breaks out from time to time in
the form of specific timely charged violations of the Act.
As to such matters, pre-August 7 conduct on the part of
Local 705 and its agents merely lays bare putative post-
August 7 violations and hence is clearly admissible. With
regard to the alleged failure of Local 705 properly to
represent A. Kesner in his grievance against F & K, it was
clearly error for the General Counsel, on May 23, 1973, to
the brief period of time which elapsed between those dates.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issue an amended complaint in Case 13-CB-4693 which
purports to reach back "since on or about February of
1972." While the question of the A. Kesner grievance can
hardly be understood without considering events dating
back to February 1972 and indeed much earlier, the Union
herein cannot properly be charged with any specific acts or
negligence relating to A. Kesner which occurred before
August 12, 1972. As further discussion will elaborate, the
pre-August 12 evidence does not "lay bare" a putative
unfair labor practice. Instead, it serves to exculpate Local
705 for certain conduct occurring after that date, so
Respondent can hardly complain about its presence in this
record.
3. The alleged breach by Local 705 of its duty to
represent A. Kesner in processing the F & K
grievance
The existence of a duty imposed upon a bargaining agent
to represent all employees in a bargaining unit, free from
unfair , irrelevant, or invidious discrimination, can be
found in Board cases going back to Miranda Fuel Co., 140
NLRB 181. reversed 326 F.2d 172 (C.A. 2, 1963). The
general existence of such a duty in other statutes has an
even lengthier ancestry . Steele v. Louisville and Nashville
Railroad, 323 U.S. 210 (1944); Tunstall v . Brotherhood of
Locomotive Firemen, 323 U.S. 210 (1944). While inveighing
against discriminatory acts which were irrelevant, invidi-
ous, or arbitrary on the part of a labor organization, the
Supreme Court has also recognized that the law does not
restrict the actions of a union so narrowly that it cannot
exercise a large measure of discretion in representing its
membership.
Any authority to negotiate derives its principal
strength from a delegation to the negotiators of a
discretion to make such concessions and accept such
advantages as, in the light of relevant considerations,
will serve the interests of the parties represented. A
major responsibility of negotiators is to weight the
relative advantages and disadvantages of different
proposals . Ford Motor Company v. Huffman, 345 U.S.
330, 337, 338. (1953)
There the discrimination charged was a determination on
the part of the union, in concluding a contract, to agree to
the granting to one set of represented employees a seniority
advantage over another group of employees, who were also
represented by the same union and covered by the same
contract. In Manuel Vaca v. Niles Sipes, 386 U.S. 171
(1967), the Supreme Court dismissed an employee's civil
action claiming unfair representation on the part of the
defendant union which had refused to process a grievance
because, in the union's judgment, medical evidence to
support the grievance was lacking. There the Court found
that an exercise of judgment on the part of a union, in
refusing to comply with the wishes of one of its members in
the processing of grievances, was entitled to the same
deference which the Court had earlier accorded to unions
in the contract negotiation are in Ford Motor Company,
supra.
Under Board law, a Union may not refuse to process an
employee's grievance simply because the employee is not a
union member, Port Drum Company, 170 NLRB 555; or
because the grievant has filed charges under the Act
against the Union, Amalgamated Clothing Workers (Canton
Manufacturing Corporation), 170 NLRB 641, Selwyn Shoe
Manufacturing Corporation, 172 NLRB 674; Graham
Engineering Co., 164 NLRB 679; Dominick's Finer Foods,
188 NLRB 873 enfd. sub nom. N.L.R.B. v. Local 703,
International Brotherhood of Teamsters, 81 LRRM 2488
(C.A. 7, 1971); or because the grievant has become
embroiled with a union official in an intraunion policy or
political dispute. Local 485, International Union of Electri-
cal, Radio & Machine Workers (Automotive Plating Corp.),
170 NLRB 1234. However, where the Union's alleged
defalcation in processing a grievance is the product of
negligence, forgetfulness, or inadvertent errors, or in
honest belief that it was pursuing a proper course as a
statutory representative, its actions do not constitute an
unfair labor practice. Local Union No. 18, International
Union of Operating Engineers (Ohio Pipe Line Constr. Co.),
144 NLRB 1365; General Teamsters, Local 890 (Jack M.
Roth Company) 193 NLRB 1048; Local 933, United
Automobile Workers, 193 NLRB 223. Moreover, as was
pointed out in Maxam Dayton, Inc., 142 NLRB 396 AT
418, the fact that the Act protects an employee from
discrimination on the part of a labor organization when it
is performing its statutory duty does not mean that the Act
also guarantees the quality of such representation. The
Fifth Circuit put it well:
... it must be reiterated that every union decision
which may in some way result in overriding the wishes
or disappointing the expectations of an individual
employee, or even of an appreciable number of
employees, does not in and of itself constitute a breach
of the fiduciary duty of fair representation. Even in the
administrative stage of the bargaining contract, when
the necessity of adjusting competing employee claims
may not be as pressing as during the negotiation stage
when rigorous scrutiny of each compromise might
frustrate the Act's policy of encouraging industrial
peace, the union must necessarily retain a broad degree
of discretion in processing individual grievances. Thus,
where the union, after good faith investigation of a
grievance, concludes that the claim is insubstantial and
refuses to encumber further its grievance channels by
continuing to process the unmeritorious claim, its duty
of fair representation may be well satisfied. N.L.R.B. v.
Rubber Workers Local 12. 368 F.2d. 12, at 17, 18, (C.A.
5, 1966) cert. denied 389 U.S. 837.
In this case Local 705 did not fail to process A. Kesner's
grievance for any reason, discriminatory or otherwise.
Indeed, it ran out the string in processing the grievance,
taking the matter all the way to the 12-member board. As
noted before, the joint cartage agreement does not provide
for references of such disputes to a neutral and instead
leaves it to the parties to rely on self-help at the conclusion
of a joint grievance committee determination in the event
that such a determination is deadlocked. Here there was no
deadlock, and no one has yet suggested that Local 705
violated the Act by failing to strike F & K in support of A.
Kesner's complaint. The only possible predicate for a
TRUCK DRIVERS , OIL DRIVERS , LOCAL 705
charge of discrimination against Local 705 in this matter is
that the entire proceeding, from beginning to end, was a
sham, and that Local 705 was responsible for such a sham.
This position is farfetched and groundless. It is far better
founded to conclude, and I do, that Local 705 gave to A.
Kesner not only due process but overdue process, going the
extra mile for him, spurred on perhaps by A. Kesner's
history and proclivity for litigation (and groundless
litigation) in the area of failure to process grievances.
I credit Flannery's testimony that A. Kesner was hired
by F & K in February 1970 as a temporary employee, and
I discredit A. Kesner's calculated, argumentative, and
sometimes contradictory testimony to the contrary. I find
as a fact on this record that A. Kesner was hired to
substitute temporarily for F & K driver, Thomas Flood,
who in fact returned to work for F & K in April 1970, at
the end of his temporary illness. Normally the Board is not
disposed to pass upon the merits of a grievance. However,
"the Board is not foreclosed from construing the provisions
of collective-bargaining contracts in the course of passing
upon complaints of unfair labor practices or in determin-
ing the remedies for such practices when found." (Citing
N.L.R.B. v. C & C Plywood Corporation, 385 U.S. 421
(1967); N.LR.B v. George E Light Boat Storage, Inc., 373
F.2d. 762 (C.A. 5, 1967). Local 485, International Union of
Electrical, Radio & Machine Workers (Automotive Plating
Corp.), 170 NLRB 1234, at 1234. The contract herein is
silent as to whether temporary substitute lures may accrue
seniority and recall rights. However, the nature of recall
rights is wholly antithetical to the idea of temporary
substitute employment, so it is quite understandable that
the parties to the joint cartage agreement did not feel called
upon to spell out this matter in writing. The facts in this
record disclose that both parties to the contract agree that
temporary substitute employees do not accrue seniority or
enjoy recall rights. Accordingly, I construe article 8,
section 3, of the said contract, relating to recalls, as being
inapplicable to temporary substitute employees such as A.
Kesner. Therefore, I conclude that A. Kesner's grievance
against F & K was legally insupportable from its very
inception. Accordingly, when Desmyter, on January 28,
1972, told A. Kesner to "forget it," and when Heim, on
March 28, 1972, told A. Kesner that his grievance was
without foundation and that he would not champion A.
Kesner's cause (despite the fact that Heim deadlocked the
first step of the grievance procedure on A. Kesner's
behalf), both union agents were acting in good faith and
were legally correct in interpreting and applying the
provisions of the joint cartage agreement to A. Kesner's
claim. Their fear that A. Kesner's contention would cause
mild havoc as a precedent in their industry for the
awarding of multiple seniority was a legitimate factor
disagreeing with his contention. Whatever they or any
other union official did thereafter in seeing to it that A.
Kesner "got his day in court" was a work of supereroga-
tion . Neither Heim nor Desmyter were under a duty to
swallow their own beliefs and speak on A. Kesner's behalf
at the May 10 meeting of the joint grievance committee21
or at the November 8 meeting of the committee, the latter
305
the only committee meeting concerning A. Kesner which
took place within the 10(b) period. Indeed, there was no
reason they should not state to the committee their own
good-faith and legally correct view that A. Kesner's claim
was without merit.
I further find on this record that, at the May 10, 1972,
meeting of the joint grievance committee , the committee
did not make a conclusive finding on the merits in favor of
A. Kesner, and I discredit A. Kesner's garbled, partisan
account to the contrary. I find that the determination of
the committee at the May 10 meeting was, as related in the
minutes of the meeting, to remand the grievance to the
parties involved in the first step for the limited purpose of
ascertaining books and records relating to the question of
whether A. Kesner ab initio acquired seniority status and
recall rights at F & K, and, if so, whether extra men
temporarily hired at F & K who bypassed them. While A.
Kesner's unhappiness at the slowness of the grievance
machinery following the May 10 hearing was directed at
the asserted failure of Local 705 to obtain the records from
F & K requested by the 12-man board, it is a fact that F &
K promptly supplied the Union with certain records and
that the delay in obtaining additional records was
exclusively occasioned by the refusal of F & K, the owner
and custodian of said records, to produce them until called
upon to do so a year later in the settlement of the 8(aX5)
charge which A. Kesner filed in March 1973. Accordingly,
it is fanciful for A. Kesner to blame Local 705 for the
asserted neglect of F & K. As A. Kesner did not acquire
seniority or recall rights at F & K in the spring of 1970, the
question of who was hired on a temporary basis in his
place after the date of his layoff, and how much they were
paid, was immaterial to a proper resolution of the
grievance pending before the joint grievance committee. I
therefore conclude that the absence of such records in
question did not prevent, and could not have prevented, A.
Kesner from laying before the point grievance committee
all relevant and material facts bearing upon the basic issue
which was before it.
It should be further noted that both Heim and Desmyter
informed A. Kesner their unfavorable view of his case long
before L. Kesner was discharged from Associated Trans-
port, and long before L. Kesner filed charges against Local
705 in the Associated case . Accordingly, it cannot be said
that their basic assessment of the A. Kesner case, or their
later actions in regard thereto, were adversely influenced
by L. Kesner's charge, regardless of their flamboyant
comments regarding it. Moreover, A. Kesner's volunteered
cooperation with the Labor Board in his brother's case was
a casual, incidental matter which was never brought to the
attention of union officialdom in any way. It might well be
argued that, after years of harassment of Local 705 with
groundless charges the Kesners had finally succeeded to
the point of getting the Regional Office to issue a
complaint in the L. Kesner case. Flushed with limited
success , A. Kesner, on August 29, 1972, might well have hit
upon the stratagem of tying his floundering grievance to
the tail of the prosecution of Local 705 in another and
wholly unrelated matter by interjecting himself, albeit
21 A Kesner i s most articulate and quite capable of speaking on hlc own
behalf to the committee or to anyone else.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unsuccessfully, into his brother' s case . In any event, I
refuse to conclude that any action or determination by
Local 705 in the processing of the A. Kesner grievance was
discriminatorily made with a view toward reprisal against
A. Kesner or L. Kesner on any basis.
While, as found hereafter, agents of Local 705 made
certain illegal remarks to A. Kesner during the course of
the several meetings which attended the processing of his
grievance, the best test of what Local 705 intended in
regard to the grievance is not what its agents said but what
they did. The resolution of grievances involves essentially a
continuing negotiation between the parties; it is more than
simply a question of deciding matters of contract interpre-
tation by the fiat of a board or committee. It is uncontested
that, on October 18, 1972, the Union, acting through
Desmyter and Janopoulos, attempted to and, in fact, did
conclude with F & K a generous settlement of A. Kesner's
nuisance claim . The question of reinstatement could not be
resolved by negotiation; however, at this time , A. Kesner,
through union auspices, had already obtained a permanent
position with another unionized carrier with whom he was
accruing seniority rights. Accordingly, he was not hurting
for current or prospective income. Faced with these
factors, Desmyter and Janopoulos attempted to resolve the
other element remedial of his complaint, namely backpay,
by arranging with F & K to pay A. Kesner an amount
equal to A. Kesner's delinquent health and welfare account
plus one month's wages. F & K properly treated this
request as a nuisance claim but was willing to buy its peace
in the amount of approximately $1,600. A. Kesner's
testimony to the contrary notwithstanding, I find as a fact
that, on October 18, when F & K Superintendent Flannery
agreed to seek approval of such a settlement with his
superiors in Los Angeles, A. Kesner actually agreed to this
proposal as a final settlement of his grievance. His
subsequent improvident, if not irrational, behavior in
repudiating the settlement forced a confrontation on the
basic issue by the joint grievance committee on November
8. Before this final meeting, Janopoulos pleaded with him
to accept the settlement and warned him that he would lose
the entire case if he persisted. A. Kesner assumed the risk
of loss, did lose, and now blames the Union for his
predicament. In arranging a settlement which would have
brought to A. Kesner some $1,600 more than a strict
interpretation of the Contract would entitle him, Local 705
acted both responsibly and effectively on A. Kesner's
behalf. In light of these as well as its efforts later on in
saving A. Kesner's job at Glendenning, Union efforts on
A. Kesner's behalf make his present complaint, alleging a
discriminatory mishandling of his grievance, appear as
being not only groundless but peculiarly inequitable.
One last stone is cast at Local 705's handling of the
grievance by A. Kesner. He says that the Act was violated
by Local 705 because the 12-member board which met on
22 Contrary to A Kesner's testimony, I credit other evidence in the
record to the effect that representatives of Local 705 sat as members of the
12-man board in almost every grievance that comes before it, including
grievances involving Local 705 members
23 One final footnote might he dropped relating to the A Kerner
grievance One of the several bases for dismissal of the A Kesner grievance
on November 8 was that it was not timely filed The joint cartage agreement
does not impose a flat contract deadline on the filing of grievances The
November 8 was composed, in part, of four persons who
were members and agents of Local 705. He lodges no such
complaint against the May 10 panel presided over by Local
705 Secretary-Treasurer Peick, whose decision, as con-
strued by A. Kesner, is the slender reed upon which he
rests his further allegation of wrongdoing. Normally,
having a friend or friends in court-if that is what the joint
grievance committee is-does not form the basis of a
complaint. However, A. Kesner thinks that the Local 705
representatives were not friends but that in fact they
torpedoed his case in its final hour. He also contends, as a
general proposition, that whenever a matter comes before
the 12-member board involving a Local 705 member, the
union side of the panel should be composed exclusively of
persons who are not members or employees of Local 705,22
The implementation of such a rule would, in effect , deprive
Local 705 of the opportunity of performing its statutory
duty with respect to the second-step processing of
grievances filed by its members. The implementation of
such a requirement presumes that the 12-member board is,
in effect, a court or a tribunal of some kind, which is held
to a standard of strict neutrality in grievance proceedings,
and is not merely the continuing arm of the union and
employer parties to the joint cartage agreement who seek
monthly to resolve, through further negotiations , contract
interpretation questions which arise out of a document
which other negotiating committees have previously
concluded in writing. On the basis of this record, I am
unwilling to make such a sweeping determination, and
instead have confined my evaluation of the four Local 705
agents on the 12-member board, over whom the charges
herein have asserted the Board's jurisdiction, to the same
standard of fair representation which is expected and
required of Local 705 agents at previous steps in the
grievance machinery. I conclude that the mere presence of
Local 705 agents on the November 8 panel of the joint
grievance committee did not constitute a per se violation of
Section 8(b)(1)(A) of the Act. I also conclude that these
four persons, acting singly or in conjunction with others on
the panel over whom the Board has acquired no jurisdic-
tion herein, did not act in a manner which was unfairly,
irrelevantly, or invidiously discriminatory as to A. Kesner
or any one else similarly situated. They heard A. Kesner
present his case in detail, and thereafter they discussed it at
length, deciding it by a secret ballot on its merits. The
grounds asserted for their action were legally supportable.
They can hardly be charged with a violation of the Act for
dismissing a stale and specious grievance.23
4. Alleged attempts to cause employers not to
hire L. Kesner
Attempting to cause an employer to discharge, or to
refrain from hiring, an individual for reasons related to
union membership is a violation of Section 8(b)(2) of the
joint grievance committee here interposed a limitation analogous to ]aches.
as well it might, since A Kesner's grievance was filed nearly a year after F
& K recalled Sher. A. Kesner was in contact with Sher from time to time
during this period He was well aware of F & K's hiring of temporary
drivers long before he complained to Local 705. On this basis alone, and
quite apart from the merits, the 12-man board acted well within the limits of
ordinary fairness in disposing of the A Kerner matter.
TRUCK DRIVERS, OIL DRIVERS , LOCAL 705
Act. The earlier Associated case, involving both the
Respondent and a charging party herein, is one of a legion
of authorities which might be cited for this proposition.
When a union merely threatens such action for reasons
related to union membership, when it threatens or takes
such action in reprisal for the filing of charges or the giving
of testimony under the Act, such conduct violates Section
8(b)(1)(A) of the Act. The complaint herein lodges such
allegations against the Respondent.
An essential element of a violation of Section 8(b)(2) is
that a union must have attempted to cause what would be
a violation of Section 8(a)(3) for an employer to do. Retail
Clerks Local 1357 (Lit Brothers), 192 NLRB 1171. The
necessary causal connection between a union's attempt
and an employer's act can be found where an exclusive
hiring agreement, arrangement, or practice, exists between
a union and an employer pursuant to which an applicant is
frozen out of the hiring process through a denial of the use
of the hiring hall. Where, as here, a contract requires only
that the employer give the union an equal opportunity with
other sources to provide it with job applicants, an 8(b)(2)
violation must be founded on something more than the
contract, since such a contract, by its terms, provides for a
nonexclusive hiring hall. Bird Trucking and Cartage
Company, 167 NLRB 626.
The General Counsel asserted at the outset of the
hearing the existence of an exclusive hiring arrangement
with Local 705, though he did not specify whether the
arrangement was industrywide in the Chicago area, or
whether it was confined to a limited number of trucking
companies for whom L. Kesner had worked. However,
evidence to support his contention in either regard simply
did not come forth, L. Kesner testified that, despite his lack
of membership in Local 705, he was frequently referred to
jobs with unionized carriers in 1971 and 1972, even though
his attempts to secure membership in the Local met with
repeated rebuffs. He recited a list of unionized carriers who
had employed him in the summer of 1972, after he had
filed charges in the Associated case and while that case was
at the hearing stage. However, after he had filed charges in
the Associated case, and after the trial of the case was
completed in late summer of 1972, he claims he was
largely, though not entirely, refused employment by certain
named union carriers when he made individual applica-
tions for work at their respective places of business. At no
time within the 10(b) period did he ever apply to Local 705
for referral. He therefore argues that the fact, if it be a fact,
that after September 1, 1972, five unionized carriers
refused him employment without Local 705 referral slip
whereas previously they had no such requirement consti-
tutes an attempt by Local 705 to cause these carriers not to
hire him for discriminatory reasons.24 He admitted that
one unionized carrier, Farquahar, hired him both before
24 Several managerial witnesses from one unionized carrier, Tucker
Freight Lines, gave varying testimony concerning their practice in hiring
nonunion drivers. One said that the company practice at Tucker was that
Tucker did not clear drivers with Local 705 before they were hired Another
said that Tucker hired drivers off the street as well as from the Local 705
hiring hall, but that Tucker did not normally hire applicants who did not
possess a Local 705 card. He also said that Tucker employed two
moonlighting Chicago policemen as drivers, although Union Agent Al Ceas
asked that the two moonlighters not he employed as drivers. A third trucker
witness said that he frequently calls the union hall for drivers, since it not
307
and after the end of the trial of the Associated case. His
testimony as to other named employers who refused him
employment was impeached by a pretrial affidavit which
conflicted with his testimony on the stand . His partisanship
was strident and his memory selective . Accordingly, I
discredit his testimony relative to the named carriers from
whom he assertedly sought employment within the 10(b)
period and who turned down because of a new company
practice or policy which required a Local 705 referral slip.
Even if believed, such testimony at best draws into
question the hiring practices of certain companies and does
not establish , by a preponderance of the evidence , that the
Respondent union in this case "attempted to cause" said
companies to impose such a requirement . Moreover, the
use of September 1, 1972, as a "before-and-after" date for
the purpose of supporting an inference of attempts by the
Respondent to cause Employers to layoff L. Kesner is
without merit . L. Kesner filed charges in the Associated
case on May 4, 1972. If discrimination were caused by the
Union owing either to nonmembership or to L . Kesner's
act in filing a charge, May 4 would be a more significant
"before-and-after" date by which to measure discriminato-
ry actions . Yet after this date, by L. Kesner's own
testimony, he was repeatedly employed by unionized
carriers who hired him without demanding a Local 705
referral slip . If L. Kesner experienced difficulty in the fall
of 1972 in obtaining employment as a truckdriver, it might
well have been because , as Judge Powell pointed out in the
Associated case ,25 he was having difficulty passing employ-
er road tests as a city driver. Any other reason would be
equally as speculative on the state of this record.
L. Kesner testified in this record that he had frequently
been referred by Local 705 for employment despite his lack
of membership therein . Hence , the thrust of any threats
made by Union agents at this time to his brother with
respect to efforts to deny L. Kesner employment must
necessarily relate to the L. Kesner efforts to seek redress
under the Act in the Associated case . L. Kesner's testimony
in this record that Local 705 frequently referred him for
employment precludes any general reliance upon the
record in any other case to support a finding herein of
discrimination based upon his lack of union membership.
I credit A . Kesner's testimony that, on October 18, Heim
said , in relation to the L . Kesner charge in the Associated
case , that he was stopping L. Kesner from working and
that he would not drive a truck again if Heim had to break
his arms and legs. I also credit A . Kesner's recital of
remarks made on December 26 by Louis Fina that the
Union , through its health and welfare records , knew where
L. Kesner was working and that it would stop him from
working. These statements were communicated to L.
Kesner by A. Kesner. As these statements were made
only is convenient , but he has the assurance that anyone dispatched from
the hall is both qualified to drive company equipment and has also passed
certain medical examinations required of drivers by Federal regulations He
also testified that drivers are hired from time to time who are not dispatched
from the Local 705 hall Such conflicting evidence does not support a
finding of an exclusive hiring arrangement between Local 705 and Tucker
Freight Lines , and has no bearing on Local 705's relationship with any other
carter
25 Associated Transport , et a! supra
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the period of limitations , I conclude that the Union
thereby violated Section 8(b)(1)(A) of the Act.
5. Threats to A. Kesner relating to access to the
filing of charges or giving testimony under the Act
On August 29, 1972, when A. Kesner went to the union
hall to participate in another first-step meeting on his
grievance, he was asked by Desmyter, in the context of
some coercive hollering at him by various business agents,
whether he was going to testify in his brother's case which
was being heard at that time. Heim also said to A. Kesner
on this occasion that, if he gave any information to the
Labor Board in regard to the L. Kesner case or if he talked
to anyone about it, Heim would kill him. On October 18, at
the Union hall, when A. Kesner threatened to go to the
Board if his grievance was not heard, Ray Kolb told him to
sit down and shut up, "or I'll knock you on your ass.
You're not going anywhere. You're not going to no labor
board." I credit A. Kesner's account of these incidents, all
of which occurred within the period of limitations.
Accordingly, I conclude that they constitute a violation on
the part of the Respondent of Section 8(b)(1)(A) of the
Act.
Upon the basis of the above-findings of fact and upon
the entire record in this case considered as a whole, I make
the following:
CONCLUSIONS OF LAW
1. Respondent Truck Drivers, Oil Drivers and Filling
Station and Platform Workers Union Local No. 705,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
2. Foster and Kleiser, Inc., Metromedia, Inc., and
Associated Transport, Inc., and each of them, are employ-
ers engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
3. At all times material herein, Louis F. Peick, Bruno
Fillipini, Joseph Desmyter, Louis Fina, Donald Heim,
Harold Henkle, Peter W. Janopoulos, Raymond Kolb,
Albert Ceas, and each of them, were agents of the
Respondent, for whose acts and conduct the Respondent
was and is legally responsible.
4. By threatening Aaron Kesner and Louis Kesner with
reprisals because they filed charges or gave testimony
under the Act, and by threatening L. Kesner with loss of
employment because he is not a member of the Local 705,
Respondent committed unfair labor practices in violation
of Section 8(b)(1)(A) of the Act. Said unfair labor practice
affects commerce within the meaning of Section 2(6) and
(7) of the Act.
REMEDY
If a meaningful remedy is to be given in this case, one
should also reflect upon the Associated case which has gone
before. In that case, the Board found that the Respondent
herein violated Section 8(b)(1)(A) and (2) of the Act, by
causing an employer to terminate L. Kesner and to refuse
to rehire him thereafter because of his lack of membership
in Local 705. The facts of that case arose in the spnng of
1972. The case was litigated in the summer of 1972. A
broad. order against Local 705, prohibiting all sinular
violations of Section 8(b)(I)(A) and (2) with regard to L.
Kesner or all other employees, was entered by the Board
on May 23, 1973. On the record of this case, as well as in its
brief to me, Local 705 indicated that it would not comply
with this order. As of August 14, 1973, petition for
enforcement thereof had yet been filed.
On the record in this case, L. Kesner, among others, was
asked what he desired in this case by way of a remedial
order. On July 5, 1973, he replied "I believe the Board at
Washington should make as broad an order as possible
... that the Union shall stop, desist and take no further
steps to prevent my brother or I from working, or if we do
gain full employment, that the Union not interfere." L.
Kesner's principal complaint is that he is still seeking
meaningful relief for a violation of the Act by Local 705,
which arose in the spring of 1972. The relief the General
Counsel seeks in this case as to L. Kesner will merely add a
postscript to another unenforced and will provide L.
Kesner cold comfort indeed unless that order is enforced.
Hence, I recommend that the Board move promptly to
enforce its order in the Associated case.
It is important that not only to L. Kesner but A. Kesner
and all others similarly situated in the trucking industry in
the Chicago area be assured free and untrammeled access
to the processes of the Board. Accordingly, I will
recommend a cease-and-desist order to this effect against
Local 705. It appears quite clearly from this record that the
invoking of legal processes by union members and others
offends against a deep-seated union ethic and provokes, on
the part of union officialdom, sharp hostility and resent-
ment. In order that all members of Local 705 may be
reminded that their rights under the Act include free access
to the Board, I will recommend that a Board notice to this
effect not only be posted at the union office, but that it be
published by the Respondent, either in a union newspaper
or magazine by which Respondent normally communicates
with its membership, or through publication in a daily
newspaper of general circulation in the Metropolitan
Chicago area, in the same manner that legal notices are
generally given. Normally the publication of a Board
notice other than by posting is not necessary, because
posting usually serves to give adequate notification to all
who have been adversely affected by the illegal conduct
which the Board seeks to suppress. However, publication
of an order or notice is a commonplace requirement found
in statutes enacted in other areas of the law including
statutes in effect in the State where the unfair labor
practices in this case occurred.26 I see no other practical
way of adequately informing 25,000 union members who
are employed and reside throughout a large metropolitan
area, and who, in the normal course of their business, will
never have the occasion to check a bulletin board on the
26 See , for example, the provisions of Illinois Revised Statutes , 1969 against real property of an absentee owner (art. 11, sec 22); or publication
edition, relating to publication of the notice to creditors of an estate in against a nonresident to obtain service of process under the Illinois "long-
probate (art 3, sec 194); or to the publication of an attachment levied arm" statute (art. 110, sec. 15)
TRUCK DRIVERS , OIL DRIVERS , LOCAL 705
fifth floor of the building on South Ashland Avenue where
Local 705 maintains its offices.
Upon the foregoing facts, conclusions of law, and the
record of this case considered as a whole, and pursuant to
Section 10(c) of the Act, I hereby make the following
recommended:
ORDER27
Respondent Truck Drivers, Oil Drivers, Filling Station
and Platform Workers Union Local No. 705, International
Brotherhood of Teamsters, Chauffeurs. Warehousemen
and Helpers of America, and its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from restraining or coercing, in any
way or by any means, its members or the employees of any
employer engaged in commerce, because said persons have
filed charges or given testimony under the Act or because
said persons are not members of Respondent Truck
Drivers, Oil Drivers, Filling Station and Platform Workers
Union Local No. 705, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, except to the extent that such rights may be
affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized
in Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
2r In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
309
(a) Post at its office copies of the attached notice marked
"Appendix."28 Copies of said notice, to be furnished by
the Regional Director for Region 13, shall, after being duly
signed by a representative of the Respondent, be posted
immediately upon receipt thereof, and shall be maintained
by it for a period of 60 consecutive days thereafter, in
conspicuous places, .including all places where notices to
members are customarily posted. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Within 45 days after receipt of a copy of the attached
notice marked "Appendix" from the Regional Director of
Region 13, publish a copy of the same, after it is duly
signed by a representative of the Respondent, in a
newspaper, magazine, or other periodical published by the
Respondent by which it regularly communicates with its
membership, or, at the option of the Respondent, publish a
copy of the same, after it is duly signed by a representative
of the Respondent, once a week for 3 consecutive weeks in
a daily newspaper of general circulation in the Metropoli-
tan Chicago area.
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
I FURTHER RECOMMEND that, in all other respects, the
amended consolidated complaints herein be dismissed.
es In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."