Yellow Freight System

National Labor Relations Board - Board Decisions

Jun 30, 1992

307 N.L.R.B. 1024 (N.L.R.B. 1992)

1024
307 NLRB No. 156
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The caption reflects the correct name of this Respondent.
2 Respondent Yellow Freight has excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
We agree with the judge’s finding that Respondent Yellow Freight
violated Sec. 8(a)(1) and (3) by conditioning casual employee Ter-
ry’s continued employment on Terry’s satisfying the Union’s de-
mands for his reacquisition of good standing membership, and by
terminating Terry upon learning that he had been unable to accom-
plish that reacquisition of union membership. We recognize that the
judge erred in his recitation of Shop Supervisor Hathaway’s testi-
mony regarding Maintenance Manager Stickney’s June 15 statement
in Hathaway’s office and in the presence of Union Stewards Smith
and Sessions. Hathaway testified that Stickney intervened in a dis-
cussion between him and the union stewards regarding Terry’s non-
payment of dues, his suspension from union membership, and the
stewards’ request that work assignments be withheld from Terry
until he took care of his dues delinquency. According to the judge,
Stickney stated, ‘‘Texas is a right-to-work state, open shop, and we
could not use Mr. Terry just because he hadn’t paid his dues.’’ (Em-
phasis added by the judge.) The judge, however, omitted a second
‘‘not’’ from the statement, i.e., Hathaway actually testified that
Stickney said they ‘‘could not not use Mr. Terry.’’ We note that
Stickney’s actual words are nonetheless fully consistent with the
judge’s later finding that the Respondent Yellow Freight’s defense
to the above allegations was a ‘‘sham developed in accordance with
Stickney’s advice to Smith, to justify the Employer’s compliance
with Smith’s demand for the termination of Terry’s employment be-
cause of his failure to maintain good standing membership in the
Union.’’ We further note that the judge’s finding the Respondent’s
defense to be a sham is fully supported by record evidence. In light
of this determination, we deny the General Counsel’s motion that the
matter be submitted to the judge for clarification.
Respondent Yellow Freight argues that it ceased using casual em-
ployees in January 1991. We leave to compliance the proof of that
allegation and the determination of its effect, if any, on employee
Terry’s backpay and reinstatement entitlement.
3 Interest on backpay is to be computed as prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
Yellow Freight System, Inc.1 and Jockey G. Terry
Teamsters Local 745, a/w International Brother-
hood of Teamsters, AFL–CIO and Jockey G.
Terry. Cases 16–CA–14723 and 16–CB–3664
June 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 7, 1991, Administrative Law Judge
George Christensen issued the attached decision. The
Respondent Union and Respondent Yellow Freight
System, Inc. filed separate exceptions and supporting
briefs, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions, to modify the remedy,3 and to adopt the rec-
ommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents,
Teamsters Local 745, a/w International Brotherhood of
Teamsters, AFL–CIO, Dallas, Texas, its officers,
agents, and representatives, and Yellow Freight Sys-
tem, Inc., Irving, Dallas, and Fort Worth, Texas, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph B, 1, c.
‘‘(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.’’
2. Substitute the attached Appendix B for that of the
administrative law judge.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT condition the employment of our em-
ployees on their maintenance of good standing mem-
bership in Teamsters Local 745, a/w International
Brotherhood of Teamsters, AFL–CIO.
WE WILL NOT threaten to terminate and terminate
employees for failing to maintain good standing mem-
bership in Teamsters Local 745, a/w International
Brotherhood of Teamsters, AFL–CIO.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Jockey G. Terry reinstatement to his
former position or a substantially equivalent position if
that position no longer exists, with all seniority and
other rights and privileges restored.
WE WILL make Jockey G. Terry whole, jointly and
severally, with Teamsters Local 745, a/w International
Brotherhood of Teamsters, AFL–CIO, for any losses in
wages and benefits he suffered as a result of our un-
lawful termination of his services for failure to main-
tain good standing membership in Teamsters Local
1025YELLOW FREIGHT SYSTEM
1 Read 1990 after further date references omitting the year.
2 While every apparent or nonapparent conflict in the evidence has
not been specifically resolved below, my findings are based on my
examination of the entire record, my observation of the witnesses’
demeanor while testifying, and my evaluation of the reliability of
their testimony; therefore any testimony in the record which is in-
consistent with my findings is discredited.
3 The Union admitted in its answer, uncontradicted testimony
(which I credit) establishes, and I find at all pertinent times Smith
and Sessions were the Union’s designated and authorized union shop
stewards at the facility. The Union denied Smith and Sessions were
authorized, however, to seek and secure Terry’s discharge for not
paying dues to the Union.
745, a/w International Brotherhood of Teamsters,
AFL–CIO.
WE WILL expunge from our records and files any
reference to Terry’s unlawful termination and notify
him in writing this has been done and no evidence re-
lating to his unlawful termination shall be used against
him.
YELLOW FREIGHT SYSTEM, INC.
Ruth Small, for the General Counsel.
David L. Mandelbaum, of Overland Park, Kansas, and John
F. McCarthy, Jr. and M. Scott McDonald (Johnson,
Bromberg & Leeds), of Dallas, Texas, for Yellow Freight
System.
James L. Hicks Jr. (Hicks, James & Preston), of Dallas,
Texas, for Teamsters Local 745.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge. On
February 28, 1991, I conducted a hearing at Fort Worth,
Texas, to try issues raised by a consolidated complaint issued
on November 2, 1990,1 based on a charge filed in Case 16–
CA–14723 by Jockey G. Terry (Terry) on August 30 and a
charge and amended charge filed by Terry in Case 16–CB–
3664 on August 7 and 30.
The complaint alleged and Teamsters Local 745 (Union)
denied in its answer thereto the Union violated Section
8(b)(1)(A) of the National Labor Relations Act (Act) by its
shop steward telling Terry he probably would not be allowed
to continue working for the Employer until he worked out
an arrangement with the Union’s secretary-treasurer to re-
store himself to good standing membership in the Union by
paying his delinquent dues and by its secretary-treasurer tell-
ing Terry members of the Union employed by the Employer
might assault and refuse to work with him unless he worked
out an arrangement satisfactory to the secretary-treasurer for
paying his delinquent dues and restoring himself to good
standing membership in the Union.
The complaint also alleged and the Union denied the
Union violated Section 8(b)(1)(A) and (2) of the Act by its
shop steward demanding the Employer cease employing
Terry because of his failure to work out an arrangement sat-
isfactory to the Union for payment of his delinquent dues
and restoration to good standing union membership.
The complaint further alleged and the Union denied its
shop stewards Smith and Sessions were agents of the Union
within the meaning of the Act.
The complaint alleged and Yellow Freight System (Em-
ployer) denied the Employer violated Section 8(a)(1) of the
Act by its shop supervisor telling Terry he could not be
scheduled to work unless and until he resolved his
dues/membership dispute with the Union. The complaint fur-
ther alleged and the Employer denied the Employer violated
Section 8(a)(1) and (3) of the Act by failing and refusing to
continue Terry in its employ because of Terry’s failure to re-
solve that dispute.
The issues are whether the Union and the Employer com-
mitted the acts alleged in the complaint and, if so, whether
they thereby violated the Act.
Counsel were afforded full opportunity to adduce evi-
dence, examine and cross-examine witnesses, argue, and file
briefs. All three counsel filed briefs.
Based on my review of the entire record, observation of
the witnesses, perusal of the briefs and research, I enter the
following
FINDINGS OF FACT2
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answers thereto filed by the
Employer and the Union admitted, and I find at all relevant
times the Employer was an employer engaged in commerce
in a business affecting commerce and the Union was a labor
organization within the meaning of Section 2 of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
For many years the Employer operated a maintenance fa-
cility at Irving, Texas. The Union represented its employees
there and their wages, hours, and working conditions were
covered by a succession of collective-bargaining agreements,
including an agreement for a term extending from April 1,
1988, through March 31, 1991.
At all pertinent times the Union designated T. T. Smith as
its shop steward and Bernie Sessions as his assistant at the
facility.3
The agreement authorized the stewards, on behalf of the
Union, to: (1) investigate and process grievances on behalf
of employees represented by the Union; (2) collect union
dues when so authorized by the Union; and (3) act as a con-
duit in transmitting communications between the Union and
the Employer. Uncontradicted testimony also established, and
I find, Smith and Sessions, on the Union’s behalf, negotiated
with the Employer with respect to employee licensing re-
quirements, employee substance abuse, and the transfer of
employees from casual to regular employee status.
The 1988–1991 agreement provided for the employment,
and limited agreement coverage, of two types of casual em-
ployees—replacement casuals to replace regular employees
fully covered by the agreement off work due to illness, vaca-
tion, etc. and supplemental or extra casuals when increased
workloads anticipated to be of short duration occurred.
At all relevant times Roger Stickney was the maintenance
manager and Clifford Hathaway was one of five shop super-
visors under him who worked rotating shifts in a three-shift
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The complaint alleged, the answer admitted, and I find at all per-
tinent times Stickney and Hathaway were supervisors and agents of
the Employer acting on its behalf within the meaning of Sec. 2 of
the Act.
5 The complaint alleged, the answer admitted, and I find at all per-
tinent times Stone was the Union’s secretary-treasurer and an agent
of the Union acting on its behalf within the meaning of Sec. 2 of
the Act.
6 The amount of dues Terry had not paid between the time he ac-
quired union membership and June 1990.
7 These and earlier findings concerning conversations Terry had
with Smith, Sessions, and Stone are based on Terry’s uncontradicted
testimony; Smith, Sessions, and Stone did not testify.
8 Terry denied he was scheduled to work June 22, denied Hatha-
way told him he was scheduled to work as a replacement casual at
any time during the week of June 23 through 29, and denied he told
Hathaway he was going to look for another job. I credit those deni-
als. Terry was convincing while Hathaway was not. Nor do I credit
Hathaway’s testimony and purported memorial concerning an alleged
conversation with Terry on June 20.
9 Under normal policy, each replacement casual was expected ei-
ther to report for work on dates scheduled or telephone prior to the
operation at the facility.4 In 1986 Terry was employed for
a time as a casual employee by the Employer. In the summer
of 1987, he contacted Hathaway and sought steady employ-
ment. Hathaway asked if he was a member of the Union. He
replied he was not, but needed work and was willing to join
the Union; did so; so informed Hathaway; and thereafter was
employed on a steady basis through the balance of 1987, all
of 1988, all of 1989, and through June 15, 1990 (mostly as
a replacement casual and on occasion as an extra casual).
Following Terry’s acquisition of union membership in
mid-or late 1987 (by paying an initiation fee to the Union
at the union hall), Terry neither delivered an authorization to
the Employer for the deduction of regular union dues nor
paid any dues directly to the Union, so his union member-
ship was suspended in late 1987.
Neither the two union stewards at the shop nor Hathaway
were aware Terry did not pay any union dues and was sus-
pended from union membership in 1987.
On or shortly before Friday each week, Hathaway pre-
pared written schedules listing the names of regular employ-
ees whose absence during the subsequent workweek (Satur-
day through the following Friday) required the summoning
of replacement casuals and the names of the replacement cas-
uals replacing them.
Records produced by the Employer showed Terry did not
work June 1–8; that he worked on June 9 and 10; that he
did not work on June 11 and 12; and that he worked June
12–l7 and 19.
On June 15, Smith and Sessions contacted Hathaway at
the facility and secured his permission to confer with Terry
regarding his dues delinquency. They then contacted Terry,
escorted him to the breakroom and informed Terry that Ses-
sions had ‘‘stumbled over’’ his nonpayment of dues to the
Union and consequent suspension, stating his continued em-
ployment was jeopardized thereby. Terry conceded he had
not paid any union dues since acquiring union membership,
stated he would appreciate working something out since he
wanted to continue working and was willing to make restitu-
tion of his unpaid dues. He then went back to work and the
stewards went to Hathaway’s office.
On contacting Hathaway, Smith advised him of Terry’s
nonpayment of union dues, his suspension from union mem-
bership and asked Hathaway to withhold any work assign-
ments from Terry until he took care of his dues delinquency.
Stickney arrived at Hathaway’s office while the matter was
being discussed. Hathaway testified Stickney intervened in
the discussion, stating: ‘‘Texas is a right-to-work state, open
shop, and we could not use Mr. Terry just because he hadn’t
paid his dues.’’ (Emphasis added.)
Hathaway contacted Terry at his workplace, told Terry that
Smith advised him Terry had failed to pay his union dues,
Terry needed to take care of his dues problem by arranging
to pay what he owed the Union and he would continue to
assign work to Terry so long as he was getting his problem
with the Union resolved. Terry replied he would try to re-
solve his problem.
On his next day off (June 20), Terry went to Smith’s
home to make a plea for Smith’s help in resolving his dues
problem with the Union. Smith was noncommittal, sug-
gesting Terry talk to the Union’s principal officer, Secretary-
Treasurer T. C. Stone.
The following day (June 21), Terry went to the union hall
and secured an audience with Stone.5 Stone called him a
scab, said he owed the Union $1137,6 that he knew he owed
the money and knew he should have paid it, and that he did
not know if Terry would be able to continue working for the
Employer since his fellow employees probably would not
want to work with him and would want to kick his (exple-
tive) if they learned he had been evading paying his dues.
Terry replied he felt guilty about not paying his dues and
asked if he could continue working for the Employer while
he paid his delinquent dues to the Union in installments.
Stone responded he didn’t think that was satisfactory but he
would discuss it with Smith and asked Terry to leave his of-
fice while he telephoned Smith. Terry complied with his re-
quest. When he was called back to Stone’s office, Stone in-
formed Terry that Smith stated he didn’t care if Terry ever
came back to work. Stone then told Terry he would have to
pay at least half of the $1137 and after receiving that money
he would determine if Terry could continue to work while
paying off the balance.7 Terry then left Stone’s office.
The next day (Friday, June 22), Terry telephoned Hatha-
way. He told Hathaway it didn’t look like he was going to
be able to resolve his dues problem with the Union as soon
as he thought and he felt threatened by the Union. Hathaway
responded in that case he couldn’t put Terry on the replace-
ment casual work schedule until he resolved his dues prob-
lem and suggested he try to persuade Smith to exert more
effort on his behalf to resolve his problem.8
The replacement work schedule for June 23–29 purports to
show Terry was assigned to replace a regular employee (P.
J. Sims) on June 23 and to replace a regular employee (B.
Redding) on June 29. It did not show Terry as scheduled for
any work on June 24.
Despite the absence of any entry in the June 23–29 re-
placement work schedule establishing Terry was scheduled to
work as a replacement casual on June 24, Shop Supervisor
D. Satterfield executed shop absentee reports stating Terry
was scheduled to work on June 22, 23, and 24 but failed to
report for work as a replacement casual on each of those
dates and failed to call in with a reasonable excuse therefor.9
1027YELLOW FREIGHT SYSTEM
scheduled date with an acceptable excuse for an inability to work
the assigned date.
10 While I credit Hathaway’s testimony and a supporting entry he
made on a ‘‘shop absentee report’’ that he told Terry he had no
work to assign to him, I do not credit his testimony he told Terry
he had no work for him because of his failure to report for work
or call in with an acceptable excuse for work assigned to him on
June 22, 23, and 24, nor do I accept the truthfulness of the balance
of his entries on the report.
11 While Hathaway admittedly did not schedule any work for Terry
after the alleged June 24 and 29 assignments, Terry’s name still ap-
peared on the casual list utilized by the Employer when a need for
a replacement casual or an extra casual arose.
12 Terry testified Stone’s representations of what could happen to
him when his fellow union workers, who were militant unionists,
learned he had been a ‘‘free rider’’ since 1987, were accurate.
13 A receiver of wages and benefits set forth in the Employer-
Union collective-bargaining agreement while failing to support the
Union’s achievement of those wage levels and benefits on his and
the other employees’ behalf by payment of dues to the Union to de-
fray its costs and expenses in securing those wage levels and bene-
fits.
14 Yellow Freight System, 197 NLRB 979 (1972); Montgomery El-
evator Co., 278 NLRB 871 (1986); Stage Employees IATSE Local
665 (Columbia Pictures), 268 NLRB 570 (1984); Laborers Local
576 (Myr Sheet Metal), 267 NLRB 632 (1983), enfd. 754 F.2d 677
(6th Cir. 1985); Pacific Plywood Co., 134 NLRB 736 (1961), enfd.
Continued
In accordance with Hathaway’s June 22 advice, Terry con-
tacted Smith at his home a second time and asked Smith to
help him resolve his dues problem; Smith replied there was
nothing he could do, Stone was angry at Terry over his fail-
ure to pay his union dues and suggested Terry contact Stone
personally.
Terry refrained from any renewed contact with Stone, but
tested whether the Employer was going to continue denying
him employment until he restored his good standing mem-
bership in the Union by telephoning Hathaway on June 26
and another shop supervisor, John Beard, on July 6, in both
cases requesting work. Hathaway informed Terry he had no
work for him on the former date10 and Beard, apparently un-
aware of Terry’s difficulties with the Union and with Hatha-
way, told Terry he had work as an extra casual available and
to report for work.11
Terry reported for work on the July 6 day shift. Seeing
Sessions, he stated he did not want any trouble, he had a
family to support, he needed to work, and he hoped his
working did not trouble Sessions. Sessions replied he was
not troubled but he didn’t know about Smith. Terry later en-
countered Smith and repeated the comments he made to Ses-
sions. Smith responded Terry knew he did not have any busi-
ness being there and that he was there at his own risk.
Smith then went to Hathaway’s office and complained
about Terry’s presence in the facility. Hathaway subsequently
approached Terry, told Terry since he had not resolved his
dues problem with the Union, Smith was upset at his being
there working and renewed his request that Hathaway not
schedule any work for Terry; said he did not want any prob-
lems with the Union and he was sure Terry didn’t either; re-
peated his earlier statement he was not going to schedule
Terry for any work; and closed with the statement that while
he knew this was illegal, the Employer could only protect
Terry while he was at work and Terry knew he had a prob-
lem outside the shop.12
The same day, following a discussion of Terry’s situation
with Stickney, Stickney directed Hathaway to strike Terry’s
name from the casual list and Hathaway complied.
Since that strike, Terry has not been employed by the Em-
ployer.
B. Analysis and Conclusions
1. The alleged 8(b)(1)(A) violation by the Union’s
secretary-treasurer
The complaint alleged the Union violated Section
8(b)(1)(A) of the Act on June 21 by Secretary-Treasurer
Stone’s telling Terry that union members employed by the
Employer might assault him and might refuse to work with
him because of his failure to maintain good standing mem-
bership in the Union.
I have entered findings to the effect Stone indeed made
such a prediction and that Terry confirmed its accuracy (tes-
tifying his fellow employees who were union members and
supporters might very well assault him and refuse to work
with him if they learned he had been a ‘‘free rider’’13 over
the 2-1/2 years he had been steadily employed as a replace-
ment casual).
Stone’s statement, however, neither contained a threat the
Union by either Stone or any other agent would direct, au-
thorize, cause, or ratify such conduct on the part of any of
its members but rather was an admittedly accurate prophecy
of what might occur when and if Terry’s fellow employees
learned he had failed to pay dues since achieving steady em-
ployment.
I therefore find and conclude the Union did not violate the
Act by Stone’s June 21 prediction.
2. The alleged 8(b)(1)(A) and (2) violations by Union
Steward Smith
The complaint alleged the Union violated Section
8(b)(1)(A) and (2) of the Act by Union Steward Smith’s tell-
ing Terry he probably would not be allowed to continue
working for the Employer unless he reacquired good stand-
ing membership in the Union and by demanding the Em-
ployer cease employing Terry until and unless he satisfied
the Union’s requirement for reacquiring good standing union
membership.
I have entered findings Smith made those statements.
Section 14(b) of the Act bars the application of agreements
between an employer and a union requiring membership in
that union as a condition of employment in any State in
which such application is prohibited by state law. The cur-
rently effective collective-bargaining agreement between the
Employer and the Union provides the union membership re-
quirement of that agreement does not apply in any State
where such a law is in effect. Texas has such a law. Smith’s
demand violated Section 8(b)(1)(A) and (2) of the Act14 un-
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
315 F.2d 671 (9th Cir. 1963). Also see Carpenters Local 546
(Duffee Forms), 300 NLRB 437 (1990); Painters Local 513 (Na-
tional Glass), 299 NLRB 35 (1990); Laborers Local 332 (D’Angelo
Bros.), 295 NLRB 1036 (1989); Electrical Workers IBEW Local 175
(Duncan Electric), 269 NLRB 691 (1984).
15 Longshoremen Local 6 (Sunset Line), 79 NLRB 1487, 1507
(1948).
16 Teamsters Local 886 (Lee Way Motor), 229 NLRB 832 (1977).
17 NLRB v. Electrical Workers IBEW Local 3, 467 F.2d 1158
(1972).
less, as the Union contends, the Union was not responsible
for his actions.
The Union contends the authority of its stewards to act on
its behalf are limited by the applicable collective-bargaining
agreement between the Employer and the Union to the inves-
tigation and processing of grievances on behalf of employees
covered by the agreement and represented by the Union, the
collection of dues when authorized by the Union, and the
transmission of authorized messages and information be-
tween the Union and the Employer; and further limited by
the Union’s bylaws to actions specifically directed by the
Union’s executive Board.
The Board rejected similar contentions in the past, inter-
preting Section 2(13) of the Act as providing ‘‘A principal
may be responsible for the acts of his agent within the scope
of the agent’s general authority or the ‘scope of his employ-
ment’ . . . even though the principal has not specifically au-
thorized or indeed may have specifically forbidden the act in
question. It is enough if the principal actually empowered the
agent to represent him in the general area within which the
agent acted’’;15 that ‘‘The principal’s consent, technically
called authorization or ratification, may be manifested by
conduct, sometimes even passive acquiescence as well as by
words. Authority to act as agent in a given manner will be
implied whenever the conduct of the principal is such as to
show that he actually intended to confer that authority,’’16
i.e., that ‘‘authority may be implied or apparent, as well as
express.’’17
Applying those principles, the Board has held unions re-
sponsible for the following actions of their stewards: (1) a
threat to cause, attempt to cause and causing an employee’s
discharge because he was delinquent in his payment of union
dues (Seago Construction Co., 141 NLRB 872 (1963)); (2)
a threat to cause an employee’s discharge because he was not
a member of the union (Laborers Local 41 (Anderson Con-
struction), 129 NLRB 1447 (1961), enfd. 295 F.2d 657 (7th
Cir. 1961)); (3) an attempt to cause and causing an employer
to deny employment to a job applicant because he refused
to execute an authorization for the checkoff of dues to the
union (Bellkey Maintenance Co., 270 NLRB 1049 (1984));
(4) a threat to cause employees to be discharged for failing
to support incumbent union officers (Teamsters Local 886
(Lee Way Motor), 229 NLRB 832 (1977), and Boilermakers
Local 5 (Regor Construction), 249 NLRB 840 (1980)); (5)
threat to cause employees loss of future job referrals if they
fail or refuse to cease work to make room for the employ-
ment of union members (Electrical Workers IBEW Local 175
(Duncan Electric), 269 NLRB 691 (1984)); (6) threats to fine
employees for testifying on behalf of an employer at an arbi-
tration (Electrical Workers IUE Local 745 (McGraw Edison),
268 NLRB 308 (1983), enfd. 759 F.2d 533 (6th Cir. 1985));
and (7) causing employees to cease work because their em-
ployer contracted work to a nonunion subcontractor (Car-
penters Local 2067 (AGC), 166 NLRB 532 (1967)).
In each of these cases the Board, reasoning the steward
was acting within the scope of his general or apparent au-
thority, held the union was responsible for the described ac-
tion, in many cases despite language in the applicable collec-
tive-bargaining agreement, union constitution or bylaws lim-
iting or denying the stewards’ authority to take the actions
in question on behalf of the union.
On the basis of the record evidence in this case, I find and
conclude the Union is responsible for Smith’s implied threat
the Union would cause the Employer to withhold further
work assignments from Terry unless he paid his delinquent
dues and reacquired good standing union membership,
Smith’s demand the Employer withhold those assignments,
and Smith’s accomplishment of that goal.
At all times pertinent Terry recognized and accepted
Smith’s authority, on behalf of the Union, to interview him
during working hours to demand he cure his dues delin-
quency and reacquire good standing union membership with
the accompanying implied threat the Union would cause the
Employer to cease scheduling work for him unless he did so;
Hathaway recognized and accepted Smith’s authority, on be-
half of the Union, to demand Terry not be scheduled any
work unless he cured his dues delinquency and reacquired
good standing union membership by counselling Terry to
seek Smith’s assistance in reacquiring good standing union
membership and conditioning his continued employment on
his doing so; Stickney recognized and accepted Smith’s au-
thority, on behalf of the Union, to demand work assignments
be withheld from Terry until and unless he reacquired good
standing union membership by commenting the Employer
had to create or develop some other reason as justification
for the Employer’s compliance with Smith’s request; and
Stone recognized and accepted Smith’s authority, on behalf
of the Union, to affect Terry’s continued employment by tell-
ing Terry he had to consult with Smith and secure his advice
before rejecting Terry’s plea for reacquisition of good stand-
ing union membership by payment of his delinquent dues in
installments out of future wages. The Employer-Union agree-
ment further authorizes the stewards to transmit union com-
munications to the Employer.
These facts amply support my finding and conclusion the
Charging Party, the Employer, and the Union recognized and
accepted Smith’s authority, on behalf of the Union, to affect
Terry’s union membership and his continued employment.
I therefore find and conclude by Smith’s implied threat the
Union would cause the termination of Terry’s employment if
he failed to cure his dues delinquency and reacquire good
standing union membership, by Smith’s attempt to cause the
Employer to terminate Terry’s employment for his failure to
cure the dues delinquency and reacquire good standing union
membership, and by Smith’s success in securing Terry’s ter-
mination for such failure, the Union violated Section
8(b)(1)(A) and (2) of the Act.
3. The alleged 8(a)(1) and (3) violations by
the Employer
The complaint alleged the Employer violated Section
8(a)(1) of the Act by Hathaway’s conditioning Terry’s con-
tinued employment on compliance with the Union’s demands
for reacquiring good standing union membership and termi-
1029YELLOW FREIGHT SYSTEM
18 Yellow Freight System, supra; Bellkey Maintenance Co., supra;
Montgomery Elevator Co., supra; Pacific Plywood Co., supra.
19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
20 If this 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 read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
nating his employment on being informed Terry had been
unable to accomplish that reacquisition.
I have entered findings both those allegations are sup-
ported by the evidence, as well as findings the Employer’s
defense Terry was terminated because of his alleged failure
to either report for work when scheduled or to call to explain
his nonreporting was a sham developed, in accordance with
Stickney’s advice to Smith, to justify the Employer’s compli-
ance with Smith’s demand for the termination of Terry’s em-
ployment because of his failure to maintain good standing
membership in the Union.
In the absence of a lawful collective-bargaining agreement
conditioning continued employment on the maintenance of
good standing union membership, both the Employer’s con-
ditioning of Terry’s continued employment on his satisfying
the Union’s demands for Terry’s reacquisition of good stand-
ing membership and terminating Terry for failure to reac-
quire that standing encouraged union membership in viola-
tion of Section 8(a)(1) and (3) of the Act.18
I therefore find and conclude by conditioning Terry’s con-
tinued employment on his reacquisition of good standing
membership in the Union and by terminating Terry’s em-
ployment for his failure to reacquire that good standing, the
Employer violated Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. At all pertinent times the Employer was an employer
engaged in commerce in a business affecting commerce and
the Union was a labor organization within the meaning of
Section 2 of the Act.
2. At all pertinent times Stone, Smith, and Sessions were
agents of the Union acting on its behalf within the meaning
of Section 2 of the Act.
3. At all pertinent times Stickney and Hathaway were
agents of the Employer acting on its behalf within the mean-
ing of Section 2 of the Act.
4. The Union violated Section 8(b)(1)(A) and (2) of the
Act by threatening to cause, attempting to cause, and causing
the Employer to terminate Terry’s employment because of
his failure to maintain good standing membership in the
Union.
5. The Employer violated Section 8(a)(1) and (3) of the
Act by conditioning Terry’s continued employment on main-
tenance of good standing membership in the Union and by
terminating Terry’s employment because of his failure to do
so.
6. The aforesaid unfair labor practices affected and affect
commerce as defined in the Act.
THE REMEDY
Having found the Union and the Employer engaged in un-
fair labor practices, I recommend they be directed to cease
and desist therefrom and take affirmative action designed to
effectuate the purposes of the Act.
Having found the Union unlawfully caused the Employer
to terminate Terry’s employment and the Employer at the
Union’s behest unlawfully terminated Terry’s employment, I
recommend the Employer be ordered to reinstate Terry to his
former or a substantially equivalent position if it no longer
exists and the Union and the Employer jointly and/or sever-
ally make Terry whole for any loss of earnings and benefits
he suffered as a result of his unlawful termination, less in-
terim earnings, with the sums due and interest thereon cal-
culated in the manner set out in F. W. Woolworth Co., 90
NLRB 289 (1950); Florida Steel Corp., 231 NLRB 651
(1977), and Isis Plumbing Co., 138 NLRB 716 (1962). I also
recommend the Employer be ordered to expunge from its
records and files any reference to Terry’s termination, Terry
be notified in writing this has been done and evidence relat-
ing to his unlawful termination shall not be used against him.
I further recommend the Union be ordered to advise both
Terry and the Employer the Union has no objection to Ter-
ry’s reinstatement and continued employment by the Em-
ployer.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended19
ORDER
A. Respondent Teamsters Local 745, a/w International
Brotherhood of Teamsters, AFL–CIO, Dallas, Texas, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Threatening employees with termination of their em-
ployment for failing to maintain good standing membership
in Local 745.
(b) Attempting to cause and causing employers to termi-
nate employees for failure to maintain good standing mem-
bership in Local 745.
(c) In any like or related manner restraining or coercing
employees in the exercise of their rights under Section 7 of
the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Jockey G. Terry whole jointly and severally with
Yellow Freight System for any loss in pay and benefits he
may have suffered as the result of Local 745’s unlawful ac-
tions against him in the manner set out in the remedy section
of this decision.
(b) Inform Jockey G. Terry and Yellow Freight System in
writing Local 745 has no objection to the employment of
Jockey G. Terry in his former or a substantially equivalent
position.
(c) Post at its business offices, meeting hall, and on any
union bulletin boards at Yellow Freight System facilities in
the Irving, Dallas, and Fort Worth areas in places where no-
tices to its members are customarily posted, the attached no-
tice marked ‘‘Appendix A,’’20 in all places where notices to
members of Local 745 are customarily posted. Copies of the
notice, on forms provided by the Regional Director for Re-
gion 16, shall be signed by an authorized representative of
Local 745, posted immediately upon their receipt and main-
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 See fn. 20.
tained for 60 consecutive days. Reasonable steps shall be
taken to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
B. Respondent Yellow Freight System, Inc., Irving, Dallas,
and Fort Worth, Texas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Conditioning the employment of its employees on their
maintenance of good standing membership in Teamsters
Local 745.
(b) Threatening to terminate and terminating its employees
for failure to maintain good standing membership in Team-
sters Local 745.
(c) In any like or related manner restraining or coercing
employees in the exercise of their rights under Section 7 of
the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Jockey G. Terry reinstatement to his former
position or a substantially equivalent position if that position
no longer exists, without prejudice to his seniority or other
rights and privileges.
(b) Expunge from all records and files any reference to the
unlawful termination of Terry’s employment and notify Terry
in writing this has been done and evidence relating to his un-
lawful termination shall not be used against him.
(c) Make Jockey G. Terry whole jointly and severally with
Local 745 for any losses in wages and benefits he may have
suffered as a result of Yellow Freight System’s unlawful ac-
tions in the manner set out in the remedy section of this de-
cision.
(d) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records, reports and all other records necessary to determine
the payments which will make whole Jockey G. Terry for the
discrimination practiced against him.
(e) Post at its facilities in the Irving, Dallas, and Fort
Worth, Texas areas where Jockey G. Terry and employees
represented by Local 745 were and are employed, and all
other locations where notices to its employees are custom-
arily posted, copies of the attached notice marked ‘‘Appendix
B.’’21 Copies of the notice, on forms provided by the Re-
gional Director for Region 16, shall be signed by an author-
ized representative of Yellow Freight System, posted imme-
diately upon their receipt and maintained for 60 consecutive
days. Reasonable steps shall be taken to ensure the notices
are not altered, defaced, or covered by other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board found we violated the
National Labor Relations Act and ordered us to post and
comply with the terms of this notice.
WE WILL NOT threaten employees with termination of their
employment for failing to maintain good standing member-
ship in Local 745.
WE WILL NOT attempt to cause or cause employers to ter-
minate employees for failure to maintain good standing
membership in Local 745.
WE WILL NOT in any like or related manner restrain or co-
erce employees in the exercise of their rights under Section
7 of the Act.
WE WILL make Jockey G. Terry whole jointly and sever-
ally with Yellow Freight System for any loss in pay and ben-
efits he suffered as a result of our unlawful attempt to cause
and causing Yellow Freight System to terminate his employ-
ment because of his failure to maintain good standing mem-
bership in Local 745.
WE WILL inform Terry and Yellow Freight System in writ-
ing we have no objection to Yellow Freight’s employment of
Terry in his former or a substantially equivalent position.
TEAMSTERS LOCAL 745, A/W INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, AFL–CIO