Western Conference of Teamsters

National Labor Relations Board - Board Decisions

Aug 19, 1980

251 N.L.R.B. 331 (N.L.R.B. 1980)

WESTERN CONFERENCE OF TEAMSTERS 3 3 1
Western Conference of Teamsters, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America (California
Cartage Company, Inc.) and David Hal Davis.
Case 21-CB-6590
August 19, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MI MBIRRS
JENKINS ANI) TRUSI)SAI
On April 25, 1980, Administrative Law Judge
Leonard N. Cohen issued the attached Decision in
this proceeding. Thereafter, counsel for the Gener-
al Counsel filed exceptions and a supporting brief,
and Respondent filed limited cross-exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs and has decided to affirm the
rulings, findings,' and conclusions of the Adminis-
trative Law Judge and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
Counsel for the (ieneral Coulnsel ha, excepted to certain credihilil
findings made by the Admnilistratlls La. Judge 11 is he Il;rd'ds eCstah-
1ished polic> nolt to eo.rrule an adniltir.ati.c la" judge's re.olution, s
with respect to credibility unless lilt' lear preponderalce of all f tile
relevant eidence colxiinces I u that he resolltiionr are incorrel .sIi,hlnd-
ard D)r all Pridlu, is. bn , II NI R 544 IQs50), enl d lll 1 2d 3h2 (Id
(Cir 1951) e has cl arefull 5 CXII l Ile i ii I h re cIII rd alnd fi11d i1o hbasis fin
rescrsilg hlls findings
DECISION
STATEMLNI Of TI-HE CASE
LEONARD N. COHEN, Administrative Law Judge: This
case was heard before me on July 19 and 20 and Septem-
ber 4, 5, and 6, 1979, in Long Beach, California, pursuant
to a complaint issued on October 30, 1978, by the Re-
gional Director for Region 21 of the National Labor Re-
lations Board. The complaint is based upon a charge
filed by David Hal Davis on July 26, 1978. The com-
plaint alleges that Western Conference of Teamsters, In-
ternational Brotherhood of Teamsters. Chauffeurs, Ware-
housemen & Helpers of America, herein called Respond-
ent, has engaged in certain violations of Section
251 NLRB No. 52
8(b)( )(A) of the National Labor Relations Act, as
amended.
Issues
The complaint alleges that Respondent, as the author-
ized bargaining representative of Teamsters Local 692,
failed to fairly represent certain employee-members and
thereby violated Section 8(b)(1)(A) of the Act by wvillful-
ly misrepresenting substantive portions of a proposed
agreement at a ratification vote. Respondent denies that
any such misrepresentations were made. The principal
issue then is one of credibility relating to the question of
whether or not Respondent's reprcsentati\ s actually
made such material misrepresentations.
All parties wvere given full opportunity to participate,
to introduce relevant evidence. to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs
which have been carefully considered were filed on
behalf of both parties.
Upon the entire record, and from my observation of
the witnesses and their demeanor. I make the following:
FININIINS O1 FACI
I. I HIt HUSINtESS OF IHE EMPIOYI R
Respondent admits that California Cartage Company,
Inc., herein called either the Employer or the Company,
is a California corporation with an office and place of
business located in Wilmington, California, where it is
engaged in freight handling and warehousing. It further
admits that the Company annually provides services in
excess of $50,000 directly to customers located outside
the State of California. Accordingly, it is admitted and I
find that the Company is an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE I.ABOR ORGANIZATI-ION INVOL\I)
Respondent admits and I find that at all times material
herein it has been a labor organization within the mean-
ing of Section 2(5) of the Act.
111. THE UNFAIR lABOR PRACIICFSi
A. Background
The Employer's freight operation extends throughout
the State of California with two facilities located in the
southern California area. The facility which is the sub-
ject of the instant litigation is a freight container station,
herein referred to as Warehouse 13, located in Wilming-
ton, California. As of the spring of 1977,2 approximately
51 regular employees were engaged at Warehouse 13 in
the stuffing and unstuffing of shipping containers for var-
Other han ertanl silatemens allegedly made to unit employcs at a
meeting Kith rnmpan} officials and subsequentl ;it a union membership
meeting hboth of 'shich occurred in late March 177. the nlaterial fIacl
arei.t iie I di ispute :xcepl shrstlr spccificall notedl. the flloS lng ricl;a
tol is based onl .a l ellgIls. partial stl pul.tlon If factls cl re litered il at tl
hea.ring. certaillt d lcltlllars ictdeier'. aild the Ullcontroscrted eirmo
I1n of ss tletssl,
- All dales rttr tio 1'?
?
uile , otherxise indicated
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ious shipping lines engaged in the transportation of con-
tainerized cargo by ship to and from the ports of Los
Angeles and Long Beach, California. 3 The Employer's
remaining 250 to 275 regular employees are employed in
transporting freight between the docks and the ware-
house, as well as to and from various warehouses and
yards located throughout the State.
For some years prior to the spring of 1976, the Em-
ployer had been a member of and bargained collectively
through a multiemployer association. In late March 1976,
the Employer withdrew in a timely fashion from the as-
sociation and commenced bargaining on an individual
basis for a new collective-bargaining agreement covering
all of its employees, including those employed at Ware-
house 13, in one overall unit.
B. The 1976 Negotiations
In the early spring of 1976, the Employer through its
president, Clifford Bailey, and vice president, Robert
Curry, met with Jack Koenig, secretary-treasurer of
Local 692, and Gene Shepherd, coordinator of Respond-
ent's Master Freight Division, for the purpose of negoti-
ating a separate contract. Although Local 692 has repre-
sented the Employer's employees for a number of years,
Respondent, pursuant to a power of attorney executed in
either 1963 or 1964, has the exclusive authority to nego-
tiate and sign agreements on the Local's behalf. These
1976 negotiations ultimately led to an agreement on the
National Master Freight Agreement, herein called the
master agreement, and to the Western States Area
Pickup and Delivery Local Cartage and Dockworkers
Supplemental Agreement, generally referred to by the
parties as the Western States Supplement Agreement and
herein simply called the supplement agreement. 4
During those negotiations, the Employer initially took
the position that there should be a separate agreement
covering the employees employed at Warehouse 13. In
support of this position, the Employer advanced three
major arguments: (1) The adverse impact of clause 59 of
the supplement agreement on Warehouse 13's oper-
ations; 5 (2) the fact that Warehouse 13 was essentially a
warehouse and not a freight-handling operation and that
therefore the Employer suffered an economic hardship
vis-a-vis its competitors; 6 and (3) the fact that, due to the
costly and extensive litigation the Employer had under-
taken with the Longshoremen's Union, the direct benefit
of which inured to the Local, the Employer had certain
This figure i hbased on the teslimony of Clifford Bailey, the Erinploy-
er's president The figure of approximately 70 to 75 as conltained in the
stipulation of fact appears to be an incorrect estimate which included a
number of casual employees.
4 The master agreement was ratified b a niajority of the entire lcam-
sters membership in the United States who were employed in the freight
industry The supplement agreement swas ratified h thoise Teamsters
members employed in the freight industry i the II Western States
r Clause 59 prosided iter alia. that Salurday aid Sunday work be
paid at time and a half. The Employer argued that, due to the irregular
steamship scheduling, a certain number of these employees usould always
have til be employed on weekends rurni 236 NIRB 844 (1978); and LUnited SteewloriAer% of -tlferira,
4FI.- CIO. ci ol (Du/ul (Corporationl und Duui Sierrtu Clrporurion), 226
Nl RH 772 1('176). re'sersed anld remanded ub nrror Intrnutrlonr l Hrother-
hood oJ iurntrLers. Chut/liur, "archouvemnn anid llelpr of .lmnrvll'.
Locul No. 310 v .I..R B. 587 F2d 1176 (1) C Cir 1978). and n
remand 243 NLRBI 1157 (1979)
wage increase, Respondent materially and willfully
misled them and thereby violated its fiduciary duties
under the law.
Respondent initially contends that the instant dispute is
time-barred under Section 10(b) of the Act since both
Ogden and Lizotte, Local 692's secretary-treasurer and
president, respectively, were apprised of the terms and
conditions of the rider agreement a short time after its
execution and were at all times fully aware of Respond-
ent's position relative to the 1978 wage increase. Re-
spondent argues that, notwithstanding this knowledge,
these officers chose to do nothing with respect to the
rider agreement for over a year, and that I.ocal 692's
membership was bound by their officials' knowledge.
Respondent, in addressing the merits of the dispute,
argues that the facts, at most, demonstrate a failure on
Shepherd's part to communicate in an articulate fashion
to the members the precise terms and conditions of the
proposed agreement they were being asked to approve,
and that this failure, even if it rises to the level of negli-
gence, is not the type of conduct intended to be encom-
passed by Section 8(b)(l)(A) of the Act.
Finally, 3 ' Respondent argues that the remedy sought
by the General Counsel, to wit, payment to the employ-
ees of the 1978 50-cent-an-hour wage increase, is punitive
in nature since it is speculative whether the Union would
have successfully secured from the Employer this in-
crease. 3 2
Before delving into an analysis of what was presented
to the employees at the March 30 meeting, it is necessary
to briefly summarize the negotiations that took place re-
garding the rider agreement. At all times the Employer's
proposals covered the entire duration of the agreement.
Shepherd, as well as Ogden, was present at all three ne-
gotiating sessions prior to the March 30 meeting and
fully and clearly understood that to be the case. At the
Burlingame meeting during the last week in March, the
Employer's representatives withdrew their demand for a
reduced starting wage rate only on Shepherd's and
Ogden's representations that they would recommend at
the upcoming union meeting a total freeze on all future
increases, both wages and COL increases, for the dura-
tion of the contract.
The day following the general membership meeting,
Shepherd and Curry met and executed the rider agree-
ment. Although the document's "subject to review" lan-
guage in reference to the 1978 wage raise is admittedly
: Respondent also argues that the entire matter should he properls
deferred to the parties' iterial griesvance procedure I disagree Fir,st. as
will be discussed. nfrau, t real clontroversy exists over the meaning of
the terms and coinditions ifr the rider agreement. The issue heard hefore
me droes not, colntrary t Respondent's cntention, involve a dispute he-
ldweel contracting parties Iier the inlerpretation orf a provision in the
contract akin to an alleged violation of Sec Xa)(15) r Sec. 8(h)(1) f tihe
Aclt he case inIolves ua clainm that Respondent did not properly fulfill
its fiduciary duties As t he Board pointed out in (;r,eraul .4recan Trlarns-
polrrtrill Corporatiol, 228 N Rlt 81)8 (1977) it ill not defer to the grie-
alnce arbitratlion procedures i, m:ltters affecting individual rights unlder
Sec 7 of the Act
:'2 In support f this argument, Respondent relics upon the recent
Ninth Circuit Court opirin . R. s .erci Perniiula 4robulunce
Service. In(. 58q F 2d 114 (19791. denyvilg enfiorcement of 232 N.RBt
11)711 19177)1 li siew oif r'ix ultinmale co clusion regarding dispositiron of
the coirnplaint. I need not reach this issue
WIESIERN C()NFFE-RENC[ ()F 'I lAMSIFRS I I')
somewhat ambiguous. resort to the testimony of Shep-
herd and Curry dispels any confusion as to what the par-
ties intended and accomplished by executing this agree-
ment; to wit, the 1978 pay raise was waived unless the
Employer failed to live up to its previously stated corn-
mitment to make certain changes in its operations. No
claim is made that the Employer acted in bad faith in
seeking economic relief and other concessions from the
Union. Likewise, no claim is made that Respondent's
dealings with the Employer were less than at arm's
length. In fact, Shepherd, in both the 1976 and the 1977
negotiations took a hard stand against giving any relief
which he did not feel would benefit in the long run the
affected employees.: ' :'
As set forth in section III, D, hereof, the credible ei-
dence establishes that at no time prior to tile March 30
meeting did any company official ever explain to the em-
ployees the specific terms and conditions of the proposed
rider agreement and they certainly never assured them
that they were going to be asked to waive only their
wage increase due in 1977.
Against this background. the General Counsel none-
theless contends that the credible evidence establishes
that, on one or more separate occasions during and im-
mediately following the March 30 membership meeting,
Shepherd willfully and intentionally misled the employ-
ees into believing that they were only giving up their
right to the 1977 increase and that they either would
automatically receive their 1978 wage increase or at the
least would receive it unless the Union subsequently
agreed to an additional waiver. In furtherance of his
theory of the case, the General Counsel presented the
testimony of nine employee witnesses, who all testified,
albeit in somewhat different and confusing fashions, that
Shepherd made such assurances. Shepherd, on the other
hand, did not only deny ever making such assurances,
but further denied that either the question of the length
of time of the proposal or what would occur to the 1978
raise was ever mentioned. I find neither the employees'
version nor Shepherd's as entirely satisfying or convinc-
ing. Determining from essentially 10 different accounts
what was actually said at this membership meeting is not
an easy proposition. No minutes or notes of the events
were offered by any witness. This is somewhat puzzling
since Local 692's recording secretary, McGinty, was
present and seated at the table on the podium. Unfortu-
nately, McGinty was not called as a witness. Similarly,
Ogden, Local 692's secretary-treasurer and the individual
who not only represented Local 692's interest at the
three negotiating sessions preceding the ratification vote
but also initially presented the proposal to the member-
: [or exa;mplc, Shcphard in he 1976 lnegolliatllins lll rfuled til
Employer's rquesi or demand that the W';lrchOtl.c Ii rpcrl linl he
conidered Ulnder the master agreemnenl Addiltronall. during he 197
rider agreemenlt ll negioaii tlon, Shepherd adimlltcdl rfuilled It glu the
Employer il loycr Mairting r. ,hich a, a majller prtiloln of he ricf II
sought On() mort Ilhall n ie ICLilii Shepherd Illforln dl 1il t nplicr
Iha i propsal, ere "trike iuc>" Furth er. cn ter i lie N1,iitr 1I
meeting, Shepherd ill c0rinlm llniltilg thili ('urr! iouglhl i gliC Ihe F Ill-
pliyer le,, relief thian the i'icniherhip hald aithoriled hlil g¢ tto%
ever., hi', effor t ils ii, regard xai Iotlaill ulndercit h\ ()gleli's .l'h1
phone call 1I (.'urr 5 in ', tich lit irillied (urr\ ek.Citl \'all. the 111ctm
hers had accepitcal
ship, did not testify. Like\cise, Hansel. the third main
speaker at that meeting. was not called as ;a aitnces.
While there may hbe legitimate explanation s for their not
testifying, none were offered.
I find the employees' versions of what Shepherd alleg-
edly said that evening about the status of the 1078 .agc
raise so fraught with the previously noted substnti\ye il-
consistencies as to render them unreliable Additioiall
and perhaps more importantly, I find that their \crsiolsll
swshen viewed in the peculiar circumstances i this casc.
are inherently implausible. ()ther thian Shcph1erd11i's app;i-
elt anllno-;nce and impatience l it the nilcnilrs' I'tilurc th
immediatelS approve the proposal. the (enc;ral Cuiscl
ascribes no basis hich would explain, justlif. r \irritllt
Shepherd's swillfully mnlaking the false ;aiid 1isleadinig
statements attributed to himl. Shepherd is Iiil c\pcrlnccd
labor negotiator who clearly \ould haec recogni/cd Ihlha
material misrepresentations made in 1977 would conic
back to haunt him as soon as the employees disco\cred
the "truth." If such hlad been his design, I do not believe
that he would have almost immedialtel furnished cp\
of the rider agreement to the local and explainled its
meaning to Ogden.
I find even more persuIasie the fact tt h ent ()d \as
present ol the podium \l ihen Shepherd allcgedl Imade
the damning remarks. Shepherd % would have to have
known that, had he lied to the mebnlhership ()gden
would be in a position to immediatecly correct him and at
the least cause him some extreme anld unInecssary mill-
harrassment. Yet ',ere I to credit the cmplosees' ac-
count, I must also beliesve that ()gden merel silenitl
stood by and knowingly permitted Shepherd to mislead.
if not outright lie, to his members While the finding of a
specific unlawful motive may not be necesssary to estab-
lish that a union's conduct as arbitrary, capricious or
invidious, it is of prohatixe alue in weighing the prob-
abilities of whether certain acts or conduct took place.
The foregoing is not to say that I fully credit Shep-
herd's testimony of the meeting either. I find his denial
that the 1978 wage freeze was ever discussed equally sus-
pect. Even a consensus of the majority of the General
Counsel's witnesses indicates that the original proposal
made by Ogden at the start of the meeting did not speci-
fy that the employees were being asked to give up their
wage rates for the duration of the contract. hat cm-
ployees being presented with this proposal ould not
have inquired as to the 1978 raise strains one's credulity
Based upon the conflicting testimony before me, the
more probable version is that this or a similar question
was asked and that Shepherd did indeed say something
to the effect that the 1978 raise would be "subject to re-
vision." That Shepherd and apparently Ogden interpret-
ed this remark or limitation differently than did the em-
ployees is readily apparent from their reactions the fol-
lowing April. While Shepherd may have been remiss in
failing to adequately and fully explain the ramifications
of the proposals, such a failure does not amounit to inten-
tional and willfull misleading of the employees .lrnalga-
mated Mreacuters uand Butcher H'orkienir of .orli . ncr-
ica. .4lI-CIO, Local 17 (.-4ro Rstaurant. Inc. . 241
NLRB 22 (1979). Based upon the abo',e analysis and
340( I)ItCISI()NS ()OF NATIONAL I.ABO()R RELATIONS B)OARD
conclusions I find that the General Counsel has not met
his burden of proving by a preponderance of the evi-
dence that Respondent, through its agent. Shepherd. in-
tenlioallIy and willfully attempted to deceive, misrcpre-
sel. or mislead the employees at the ratification meet-
ing.
Altlhough the testimony of the General Counsel's wit-
nesses was in large part confusinlg ad imprecise, I dlo
Ilot hase niv rejection of their testimony on such
grounds. I have no reason to doubt that each testified
sincreeel ad horllestly as to their present recollections of
\vhlal thet' believed they were told by Curry and Shep-
hlcrl regarding the 178 pay icrease. However, I note
that thc\ had a numnber of conversationls ilth ach other
icegarding the incidents in question. Although it is far
frion clear, it appears that their testimony is a probable
product of their resentful attitude towards both the Com-
pany and Respondenit In this regard, it seems likely that
their ager a nr resentment was supported by their fellow
criiplovees and that they simply adopted as their own
recollectionls the misunderstandings and exaggerations
contained in others' versions.
Finally, I reject Respondent's argument that the entire
niatter is time-barred under Section 10(b) of the Act.
While the employees : 14 apparently misunderstood the
meaning of their approval at the membership meeting of
March 30 and were not apprised of the consequences of
their action until early April 1978, approximately 4
months prior to the filing of the instant charge, no such
I I I.C ' I 1 , II r 2 ' ,CIiC t I I I IC. Cl ll ii' r ICI t i t I C t. , CCt
-lr,'Scll at thc [I/Itllgllrllc Icttling aid. ullilik ()gdcn, ,a s 11c\ er irl
rto il lI Cl '. di CC I5 ShItCphl'l t a.. IC ll IIc ICalllillIg f lilte phr:ls e ,hiChjt IC
TC IC\' c i* II, l* C iCi l ic liCd.l aigrtlli[llt
excuse appears available to Ogden. However. I do not
find that Ogden's knowledge of the terms and conditions
of the rider agreement, in these circumstances, is attribut-
able to the employees.
Accordingly. I find that Respondent did not act in bad
faith with the Warehouse 13 employees nor did it engage
in such arbitrary, capricious, or invidious conduct of the
nature as to constitute a failure of its duty of fair repre-
sentation in violation of Section 8(b)(I)(A) of the Act.
.lma/lgamated M'eatcutters and Butcher Workmen ojf ANorh
.lmcrica, Local 17 (Aero Restaurant Inc.). .supra.
CONCI USIONS OF LA'v
I. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act I hereby issue the following recommended:
ORDER a a
It is hereby ordered that the complaint be dismissed in
its entirety.
: C. 1Il c tIxtlll 1He c ixccptIC n l rC ile a, proC iLlId h c ISe 102 46t ot
the Rules iandi RegulatioT1 s of the Nalional I abhr RtelatioIn, Blard, llt
IICiltIgs. CilcuCIU lS, aldI recoflCnllC dCdi ()rdc! hertill hall, is pro idcd
Il SCc 11)I2 48 tf lilt RleC, iCli RgLlal.CC . he .adtpled hb IhC Board adtI
hueollic iIs ili 1 Il gN. CClclCuilCs, .arid ()Older. anld Il] oChjc ios lhcrtit)
sIhIll h eCCIIemtd :I I. CI Ior alI prpostp,