Neilson Freight Lines, Inc.

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Truck Drivers, Warehousemen & Helpers Union, Local 980, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Neilson Freight Lines, Inc., et al.) and Alfred A. Andrade. Case 20- CB-4799 April 25, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On September 24, 1979, Administrative Law Judge Jerrold H. Shapiro issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed cross-exceptions and a sup- porting brief. The General Counsel filed an an- swering brief to Respondent's cross-exceptions. 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 and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law I The Administrative Law Judge found that Respondent's reasons for Finding employee Andrade were without substance, and that Secretary- Treasurer Campbell, who initiated the disciplinary action, was motivated by his personal animosity toward Andrade. The Administrative Law Judge concluded, however, that the fine did not violate Sec. 8(bXIXA) of the Act because the evidence failed to establish that Campbell's ani- mosity was based, in whole or in part, upon a belief that Andrade intend- ed to oppose Campbell's reelection. The General Counsel excepts, con- lealding that the Administrative Law Judge erred in requiring a showing that Andrade's intra-union activity in opposition to Campbell's adminis- trative included an intention to declare his candidacy for Campbell's office. The General Counsel argues that Andrade engaged in protected activity when he publicly criticized Campbell's management of the Union, and that Campbell's hostility resulted from Andrade's protected conduct. Respondent, on the other hand, excepts to the Administrative Law Judge's failure to find that one of the reasons for Andrade's fine was his improper solicitation of work. Although we agree with the General Counsel's contention that a union member has a protected right to criti- cize a union official's administration, we also find merit in Respondent's contention that the charges against Andrade included improper solicita- tion of work. Andrade's citation charged him with "ignoring the hiring hall procedures of the Local Freight Agreement." and the solicitation issue was discussed at Andrade's hearing before Respondent's executive board. We disagree with the Administrative Law Judge's observation :hat Campbell teatified that solicitation was not one of the reasons which prompted the citation For the record is clear that Campbell's statement that "solicitation had nothing to do with it, [tlhat was another matter" was made in context of a discussion concerning his reasons for suspecting that Andrade worked without proper clearance, an additional charge sep- arate and distinct from the solicitation allegation. Moreover, the evidence shows that Andrade did in fact apply to Neilson Freight Lines for local freight work, and that Campbell was aware of Andrade's application when he filed the citation. We find, therefore, that solicitation of work was one of the bases for Andrade's fine, and that this charge was not groundless. Furthermore, the evidence does not establish that Andrade was fined for his criticism of Campbell's administration. In light of the above findings, we deem it unnecessary to rely on Shattuck Denn Mining Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d 466 (9th Cir. 1966), 249 NLRB No. 6 Judge and to adopt his recommended Order, as modified herein. We disagree with the Administrative Law Judge's conclusion that Respondent violated Sec- tion 8(b)(1)(A) of the Act by notifying Andrade that his fine was payable before any further mem- bership dues would be accpeted. We find Interna- tional Union of Elevator Constructors Local Union No. 8, AFL-CIO (San Francisco Elevator Co.),2 on which the Administrative Law Judge relied, to be distinguishable in view of the fact that Andrade was not working for an employer which was party to a collective-bargaining agreement containing a union-security clause.3 Furthermore, Respondent's Local Freight Agreement contains an exclusive hiring hall procedure which requires Respondent to refer registrants without regard to union mem- bership, and the evidence does not show that Re- spondent violated this requirement or threatened to do so. We are therefore unable to find, in the ab- sence of a union-security clause, that Respondent's notice threatened to interfere with Andrade's em- ployment. We shall modify the recommended Order accordingly. 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, as modi- fied below, and hereby orders that the Respondent, General Truck Drivers, Warehousemen & Helpers Union, Local 980, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petaluma and Santa Rosa, California, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modified: 1. Delete paragraph l(b) and reletter the follow- ing paragraph accordingly. 2. Substitute the attached notice for that of the Administrative Law Judge. or the Administrative Law Judge's finding that the fine was motivated by Campbell's personal animosity toward Andrade. 2 243 NLRB No, 10 (1979). 3 Member Truesdale agrees with his colleagues that, in the circum- stances here, Respondent did not violate the Act by informing Andrade it would not accept further membership dues from him until he paid his fine. However, Member Truesdale's agreement on this point does not in- dicate that he subscribes to his colleagues' suggestion that the touchstone for finding a violation in such cases is whether or not the relevant collec- tive-bargaining agreement contains a union-security clause. See, general- ly, Member Truesdale's dissent in the Order denying Respondent's motion for reconsideration in San Francisco Elevator Co. (cited above), published at 248 NLRB No, 118 (1980). GENERAL TRUCK DRIVERS LOCAL 980 47 APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT attempt to cause Neilson Freight Lines, Inc., to discriminate against any employee in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL NOT in any like or related manner restrain or coerce employees or members in the exercise of the rights guaranteed them in Section 7 of the Act. GENERAL TRUCK DRIVERS, WARE- HOUSEMEN & HELPERS UNION, LOCAL 980, INTERNATIONAL BROTH- ERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELP- ERS OF AMERICA DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: The hearing in this case, held July 3, 1979,' is based upon an unfair labor practice charge filed February 5 by Alfred Andrade against General Truck Drivers, Warehousemen & Helpers Union, Local 980, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Respondent, and upon a com- plaint issued March 30 by the General Counsel of the National Labor Relations Board. The complaint, which was amended at the hearing, alleges that Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the National Labor Rela- tions Act, as amended, herein called the Act. Respondent filed an answer which it amended at the hearing denying the commission of the alleged unfair labor practices. 2 Upon the entire record,3 from my observation of the demeanor of the witnesses, and having considered the post-hearing briefs filed by the Charging Party and the General Counsel,4 I make the following: All dates herein refer to 1979 unless stated otherwise. 2 Respondent admits it is a labor organization within the meaning of Sec. 2(5) of the Act. Respondent also admits that the two employers in- volved in this case, Nielsen Freight Lines, Inc., and Market Wholesale Grocery Company, are employers engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act and meet the National Labor Re- lations Board's applicable discretionary jurisdictional standard. Accord- ingly, I find it will effectuate the purposes of the Act to assert jurisdic- tion herein. I The parties' post-hearing stipulation, dated July 27. 1979. has been received into evidence as Jt. Exh. I. 4 I have not considered nor read Respondent's post-hearing brief be- cause it was not timely filed. Respondent was granted an extension of time for filing its brief. Nonetheless, its brief was not filed until August 15, 1979, 2 days after the due date, accompanied by an explanation that the brief was delayed "due to an unexpected emergency.' The General Counsel and the Charging Party have requested that I strike Respond- ent's brief because it was not timely filed. Under the circumstances and in FINDINGS OF FACT I. THE QUESTIONS PRESENTED FOR DECISION The amended complaint alleges that Respondent vio- lated Section 8(b)(1)(A) of the Act by imposing a $250 fine upon Alfred Andrade "because of Andrade's in- traunion sympathies and activities in opposition to the in- cumbent secretary-treasurer of Respondent, James Camp- bell," and by advising Andrade that Respondent would not accept his membership dues until he paid this fine. The amended complaint also alleges that Respondent violated Section 8(b)(2) and (I)(A) of the Act by causing Nielsen Freight Lines and Market Wholesale Grocery to refuse to employ Andrade for reasons proscribed by the Act and by attempting to cause Nielsen Freight Lines to terminate Andrade's employment for reasons proscribed by the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Charging Party, Alfred Andrade, was employed by Respondent as an organizer and business agent from January 2, 1978, until October 13, 1978. During this period he was a member of Respondent. Respondent's principal official, Secretary-Treasurer James Campbell, hired Andrade and was his supervisor. In 1978, when Campbell took his vacation, he assigned additional duties to Andrade, including the job of admin- istering the collective-bargaining agreements which Campbell normally administered. In July 1978, upon Campbell's return from vacation, he criticized Andrade for filing certain contractual grievances on behalf of em- ployees represented by Respondent and for other collec- tive-bargaining decisions made in Campbell's absence. Thereafter, Andrade apparently publicly criticized Campbell's management of Respondent. Campbell con- fronted Andrade about this. He asked whether Andrade had told people that Campbell's management of Re- spondent was "all screwed up" and that Campbell was "not getting the work out." Andrade acknowledged ex- pressing those sentiments and stated they were true. Campbell told Andrade that he did not appreciate his criticisms. Subsequently, in September 1978, Campbell told Andrade he was disappointed because Andrade had not told him the reason why certain business agents were "plotting against" Campbell and because Andrade criti- cized Campbell's management of Respondent. Andrade answered that the business agents were upset with Camp- bell because of Campbell's refusal to allow them "to take their trips" and because they had not received a pay raise in 5 years and that they were criticized of their health insurance programs. Andrade warned Campbell that at the election 5 Campbell would be defeated and, thus, lose his job. Campbell asked who Andrade thought would defeat him. Andrade stated he thought Business Agent Charles Green would be a good candidate. Later view of the motions to strike by the other parties, I have not considered nor read Respondent's brief and grant the motions that it be excluded from the record. a Campbell's position with Respondent was an elected one. The next election was scheduled for October 1980. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in September, Campbell told Andrade he would have to terminate his employment due to a lack of money and explained the reason for the lack of money. By letter dated September 29, 1978, Campbell notified Andrade that he found "it necessary to reduce expenditures at this time" and that "due to the unstable financial condition" he had decided to terminate Andrade's employment ef- fective October 13, 1978, and thanked Andrade for his services. B. Andrade Registersfor Work on Respondent's Out- of- Work Lists Prior to his employment with Respondent, Andrade had worked since 1970 for various local unions affiliated with the Teamsters International Union as a business agent and prior to that had worked 19 years as a truck- driver. After Respondent terminated him on October 13, 1978, Andrade unsuccessfully attempted to find work as a union business representative and then looked for work as a truckdriver. Andrade, who had retained his member- ship in Respondent, submitted employment applications to several trucking companies that were under contract with Respondent, one of whom was Nielsen Freight Lines, Inc., herein called Nielsen, which had terminals within Respondent's jurisdiction in Santa Rosa, Ukiah, and Fort Bragg, California. Nielsen and Respondent at all times material were parties to a collective-bargaining agreement, herein called the Local Freight Agreement, which covered Nielsen's local trucking operations. The agreement includes an exclusive hiring hall procedure which, in pertinent part, reads as follows: ARTICLE 40 HIRING PROCEDURE Section 2. Exclusive Hiring (a) Hiring Hall. Whenever an Employer requires workmen, he shall notify the Local Hiring Hall, either in writing or by telephone, stating the loca- tion, starting time, and approximate duration of the job, the type of work to be performed, and the number of workmen required. The Employer shall specify whether the employment in question will be for a full day or on broken time. Section 3. Hiring Standard Upon such receipt of notice, the Local Hiring Hall shall endeavor to furnish the workmen request- ed. Selection of applicants for referral to jobs shall be on a non-discriminatory basis .... Such selec- tion will be made on the following basis: (a) The Local Hiring Hall shall maintain a list of all workmen seeking jobs who have been employed on the type of work and in the geographical area covered by the Local Hiring Hall for a period of at least I year, which list shall hereinafter be called "List A." The Local Hiring Hall shall maintain a separate list of all workmen seeking jobs who do not meet the requirement, which list shall herein- after be called "List B." (b) Workmen's names shall be entered on said lists in the order in which they notify the Local Hiring Hall of their availability for jobs. (d) In dispatching workmen, preference shall be given workmen on List A. Within each list, prefer- ence shall be given to those whose designations cor- respond to the type of work involved, in the order in which their names appear on the list. If there are not sufficient workmen on List A, whose designa- tions correspond to the type of work involved, pref- erence shall be given to other workmen on said list in the order in which their names appear, and the same procedure shall be followed with List B should names of List A be exhausted ... (e) An employer may call for a workman by name only: (I) if the workman is registered on the A list in the Hiring Hall in the area in which he is to be employed, and (2) if the workman requested has worked for the Employer during the last 6 months, and (3) if the workman is available for work. Section 5. Notification (a) Casual Employees. For casual employees who work on broken time or day to day basis for various employers, the Local Hiring Hall shall immediately supply such help to the Employer upon notice by the Employer that such casual employees are needed. In the event such casual help is not immedi- ately available or the Local Hiring Hall is closed, the Employer may then hire such casual workers from any other available source. (b) Regular Employees. If the Local Hiring Hall is unable to furnish qualified regular workmen within, 48 hours after an Employer calls for them, the Employer shall be free to procure the workmen from any other source. .... Pursuant to the hiring procedure set forth in the Local Freight Agreement, Nielsen's three terminals within Re- spondent's jurisdiction used Respondent's hiring halls to employ local truckdrivers. Nielsen's Fort Bragg and Ukiah terminals hired their local truckdrivers through the hiring hall maintained by Respondent at its Ukiah office. The Santa Rosa terminal used the hiring hall maintained by Respondent in its Santa Rosa office. Re- spondent's Ukiah and Santa Rosa hiring halls maintained separate out-of-work lists. Charles Green, the business agent in charge of the Ukiah office, managed the out-of- work lists maintained in the Ukiah office. Stella Rivetti, a dispatcher employed by Respondent, worked full time GENERAL TRUCK DRIVERS LOCAL 980 49 maintaining the out-of-work list in the Santa Rosa facili- ty.e On January 2, Andrade wrote letters requesting that Respondent place his name on the local freight out-of- work list maintained in Ukiah and Santa Rosa. By letter dated January 9, Respondent's secretary-treasurer, Campbell, informed Andrade that for his name to be placed on the local freight out-of-work lists he must fill out a registration card and advised him to come to the Santa Rosa office for this purpose. Campbell ended the letter by informing Andrade that he had enclosed a copy of "the local freight dispatch rules." These rules, a copy of which were in fact enclosed, were in existence since 1973 and were addressed to "Members Registering For Local Freight In Sonoma County." 7 In pertinent part they stated: A person registering for Local Freight will be placed on the out-of-work list in the order of regis- tration. To retain that place on the list, you must re- register in person or by phone every Monday, or the first working day of each week. If you fail to register on the sign up day each week, your name will be dropped from the list. If you forget to call or are unavailable, be sure to call the following day or whenever you are available in order to get back on the list for the remainder of the week. Members for local freight will refrain from solic- iting work under the local freight agreement. Solic- iting this work is a violation of Hiring Hall Provi- sion of the Local Freight Agreement. Remember-You Must Call in and Register the First Working Day of Each Week To Maintain Your Place on the List[Emphasis in original.] On January 15, in response to Campbell's letter, An- drade visited Respondent's Santa Rosa office. He spoke to dispatcher Rivetti and filled out and signed a "Regis- tration for Work Agreement" which all persons seeking work under the Local Freight Agreement are required to complete. In signing the "Registration for Work Agreement," Andrade acknowledged that he had read the Local Freight Agreement and the posted hiring hall rules and agreed to comply with them. Andrade testified that when Rivetti spoke to him on January 15 she did not indicate he was required to submit copies of his DOT certificates to Respondent in order to be eligible for dispatch.8 Rivetti testified that she was not certain whether on January 15 she spoke to Andrade about filing "certain documents" with Respondent. When asked specifically whether she told Andrade on that date the 6In addition to the out-of-work lists for local truckdrivers, the Ukiah and Santa Rosa hiring facilities maintained other out-of-work lists not rel- evant to this case. I The Santa Rosa hiring facility was located in Sonoma County, whereas the Ukiah hiring facility was located in Mendocino County. a The term "DOT certificates" as used in this Decision refers to the United States Department of Transportation Medical Examiner's Certifi- cate and Certification of Written Examination. he needed to submit copies of his DOT certificates before he could be dispatched, Rivetti testified, "I may have. I don't know if I said it when he registered. Nor- mally I do but I cannot remember." Based upon my ob- servation of the demeanor of the witnesses and Rivetti's lack of memory, I find that, when Andrade registered on January 15, Rivetti did not indicate that his being dis- patched for work was conditioned upon his first submit- ting copies of his DOT certificates. Likewise, Rivetti did not ask Andrade to submit copies of his DOT certificates when he spoke to Rivetti the following week, January 22, and asked to have his name placed on the out-of- work list for local freight drivers which was maintained at the Santa Rosa office. However, Andrade, who had secured his Class I license and DOT certificates on Janu- ary 19, informed Rivetti that he had gotten those docu- ments. The record is devoid of evidence that prior to Campbell's letter of February 16, infra, Andrade was ever informed that Respondent required copies of a reg- istrant's DOT certificates to be given to Respondent before dispatching the registrant from the local freight out-of-work list. Andrade regularly registered for local freight work on Respondent's Santa Rosa out-of-work register. He also registered for local freight work on Respondent's Ukiah out-of-work register. In this respect, on January 30 he sent Business Agent Green a letter asking to be placed on the Ukiah out-of-work list for the month of February. Green received this letter February 1, at which time he placed Andrade's name on the out-of-work list. Also on that date at 5 p.m., as described infra, Andrade personal- ly visited the Ukiah office and signed the out-of-work list. During the period from February through May, An- drade registered on Respondent's local freight out-of- work list at Ukiah as follows: February 12, 19, and 27; March 5, 20, and 28; April 2, 9, 16, 23, 30; May 7 and 14. Andrade did not meet the qualifications for "List A," as defined by the Local Freight Agreement, hence he was registered for work on "List B." C. Andrade Is Employed by Nielsen and Is Cited by Campbell In January, Andrade spoke about working for Nielsen to Robert Soto, Nielsen's vice president of operations. He informed Soto he had been terminated from his posi- tion as business agent with Respondent and wanted to work for Nielsen. Soto asked whether Andrade would have a problem working out of Respondent's Ukiah hiring hall, the hiring facility which supplied drivers to Nielsen's Ukiah and Fort Bragg terminals. Andrade indi- cated this would not pose any problem and stated he was a member of Respondent and had the approval to work in Respondent's jurisdiction from Respondent's Secre- tary-Treasurer Campbell and Business Agent Charles Green. Thereafter, on approximately January 24, An- drade submitted an employment application to Nielsen in which he applied for work with Nielsen as either a line or local truckdriver and enclosed copies of his Class I driver's license and his DOT certificates. On January 31, Andrade received a phone call at ap- proximately 7:30 p.m. from Soto, who told Andrade he needed a local freight driver to work the next day at the 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ukiah terminal and asked whether Andrade wanted the job. Andrade answered yes. Soto instructed him to report for work at 7 a.m. on February 1. Andrade fol- lowed his instruction and worked for Nielsen at its Ukiah terminal February 1, just for that day, replacing one of the terminal's senior drivers, Gilson, who was absent from work. On February I at approximately 7:30 a.m., Business Agent Green visited the Ukiah terminal to speak with Terminal Manager Liddle. Green observed Andrade at work and, inasmuch as Andrade had not been dispatched to the job by Green, questioned him about the circum- stances of his employment. Andrade told Green that Soto had phoned him at 7:30 p.m. the previous night. Green said nothing further to Andrade about this matter and left to speak with Liddle. When Green questioned Liddle about Andrade's employment, Liddle informed him that Soto had phoned Andrade to come to work be- cause Respondent's office was closed. Liddle stated that another truckdriver, Al Antoni, had previously informed Liddle he was not available for work. Liddle also stated that he had known as early as Monday, January 29, or Tuesday, January 30, that he would need a casual worker for February 1 and that Antoni was not availa- ble. Green, following his conversations with Andrade and Liddle, phoned Respondent's Secretary-Treasurer Camp- bell. After discussing the subject which had prompted his visit to the Ukiah terminal, Green informed Campbell that Andrade was working at the terminal. Campbell ex- pressed his surprise and stated that Andrade had not sub- mitted his DOT certificates to Respondent. Campbell asked Green to talk to Andrade and Liddle to determine the circumstances surrounding Andrade's employment. Green returned to the Ukiah terminal and questioned both Liddle and Andrade and then phoned Campbell and advised him that he had been notified by Liddle that when Liddle discovered he needed a replacement for Goslin, he had phoned Soto the evening of January 31 and that Soto had told Liddle not to worry, as he had a man cleared and ready to work at the Ukiah terminal. Campbell informed Green that he felt someone should file a grievance against Nielsen for runaround pay.9 Green stated he did not believe such a grievance was warranted because there was no one signed on the Ukiah out-of-work register available to take a casual local driver job on February I other than Antoni, who Liddle had stated was not available for work. Later on the morning of February 1, at approximately II a.m., Antoni visited Respondent's Ukiah office and signed the out-of-work register for line freight work only.' ° Green told him that Andrade was working at Neilson's Ukiah terminal and Liddle had told him Antoni A grievance for runaround pay refers to a claim by Respondent that an employer has employed someone in violation of the terms of the Local Freight Agreement and to remedy this violation Respondent seeks to have the employer pay the employee who would have gotten dis- patched to the job if the employer had complied with the agreement. LO The record reveals that for the week commencing Monday, January 29, the only persons registered on the Ukiah out-of-work list for freight work were Andrade, whose name was placed on the list February 1, for line and local freight work, and Antoni, who on February 1 at about 11 a.m. registered only for line work. Andrade was a "List B" and Antoni a "List A" registrant. was not available for work that week. Antoni denied he had said this to Liddle and, in response to Green's ques- tion, stated he had been available for work that day. In the meantime, Campbell, after being told by Green that Soto was the person who had employed Andrade, phoned Soto and asked for an explanation about An- drade's employment. Soto told him that he had told his terminal managers at Ukiah and Santa Rosa that if they ever needed a casual worker Andrade was cleared and ready to start work. Soto explained to Campbell that An- drade had applied for a job and told him it was all right with Business Agent Green if Nielsen employed him at Ukiah and that it would cause no problem. Campbell asked whether Andrade had his DOT certificates and Class III license. Soto indicated he did not know. Green, following his conversation with Antoni, phoned Campbell and advised him that Antoni had told him that he had been available for work that day and had not told Liddle anything to the contrary. Campbell stated he thought Andrade was working for Nielsen without a proper clearance and, since Antoni had been available for work, thought that Green should prepare for Campbell's signature a runaround grievance against Nielsen seeking pay for Antoni. Campbell also indicated that it was possible that Andrade had solicited his job with Nielsen. Thereafter, at approximately I p.m., Green went to the Ukiah terminal where he spoke to Liddle in Andrade's presence. Green informed Liddle that Respondent in- tended to file a grievance against the company seeking runaround pay because of Andrade's employment. Liddle pointed out that the hiring hall was closed when An- drade was hired. Green replied that Liddle had not called Antoni, who was available for work, and remind- ed Liddle that when they had discussed the matter earli- er that day, Liddle admitted having knowledge several days prior to February 1 that he would need a casual for that day; thus Liddle should have called Antoni before invoking the after-hours clause in the contract. Liddle stated he was confused when he had talked with Green earlier and, in fact, had not known he would need a casual worker until the evening of January 31, when Goslin asked for the day off. Liddle also stated that he had not bothered to contact Antoni because Antoni had previously told him he did not want a I-day dispatch.12 Green reported this conversation to Campbell and there- after spoke to Goslin to determine whether Liddle's story was true. Goslin corroborated Liddle. Green noti- fied Campbell of this either February 2 or early the next week. On February 1, when Andrade finished work, Liddle indicated to him that Nielsen would need him for 2 days during the week of February 5 and for 2 more days during the week of February 12. Andrade told Liddle that if the company needed him to call Respondent. Shortly after, at approximately 5 p.m., Andrade visited Respondent's Ukiah office where he signed the out-of- ' Green and Andrade testified about this conversation. Where their testimony is in conflict, I have credited Green, who impressed me as the more credible witness. 2' Antoni had in fact told Liddle that he was not interested in -day jobs. GENERAL TRUCK DRIVERS LOCAL 980 51 work register and informed Green that Liddle would be calling Green about employing Andrade during the weeks of February 5 and February 12. Green indicated he did not believe this would be possible. On February 2, Green visited the Ukiah terminal and asked Liddle if he wanted to employ Andrade again. Liddle stated he would probably need him on either Feb- ruary 15 or 16. Green and Liddle at this point discussed whether or not Liddle was entitled to call Andrade by name even though he was not registered on "List A." The conversation ended with Green stating he would check into the matter. Later during February 2, Green informed Campbell that Liddle had indicated he would need a casual during the week of February 5 and February 12 and wanted to know if Andrade could work for him on those occasions. Campbell stated that Liddle should know better than to make such a request because Andrade was not registered on "List A"; thus, Liddle could not call for him by name. Also, Campbell indicated that Andrade had taken an illegal dispatch in working for Nielsen on February 1 so would not in any event be eligible for further referral to Nielsen. That evening Liddle phoned Green at his home and asked whether Andrade would be able to work for Niel- sen as they had previously discussed. Green answered no. He explained to Liddle that Andrade was not regis- tered on "List A." Liddle stated that Andrade was con- tending he was a "List A" registrant and was eligible for a call back. Green stated Respondent felt Andrade was not a "List A" registrant. Liddle stated he would let Soto and Campbell discuss the matter further. On approximately February 8 or 9, Campbell met Liddle at Nielsen's Santa Rosa terminal and asked him why the company had hired Andrade. Liddle replied that in January Soto had told him if Nielsen needed a casual driver in either Ukiah or Santa Rosa to let Soto know as he had a man who was cleared and ready to go to work; so, on January 31, when he needed a casual for February 1, he had notified Soto, who contacted An- drade. Campbell also asked whether Liddle knew prior to the evening of January 31 that Goslin would not be available for work on February I and, if so, why had Liddle not phoned Respondent's Ukiah hiring hall for a casual. Liddle replied in effect that he did not know until the evening of January 31 that Goslin wanted to be off from work February 1, if it could be arranged, and it was at that point that he had phoned Soto, who contact- ed Andrade. On February 2, Campbell filed a contractual grievance against Nielsen for employing Andrade and cited An- drade for violating Respondent's bylaws and constitu- tion. The grievance dated February 2, signed by Campbell, alleges that Nielsen hired Andrade to work at its Ukiah terminal without "calling the hiring hall" and further al- leges that, when Campbell at the first step of the griev- ance procedure discussed this grievance with Soto, Soto stated Andrade "told them it was OK" to do this. As a remedy the grievance asked that Nielsen pay Al Antoni for the work done by Andrade.' 3 The citation, dated February 2 and signed by Camp- bell, was addressed to Andrade and informed him as fol- lows: You are hereby cited to appear before the Execu- tive Board of [Respondent] on Monday, February 12, 1979, at 8:30 p.m. Specifically, you are charged with violation of [Respondent's bylaws and constitution] for ignoring the hiring hall procedures of the Local Freight Agreement and going to work for Nielsen Freight Lines without proper clearance. Upon receipt of Campbell's citation, Andrade phoned Green on February 3 and asked what was going on, as he had worked pursuant to the terms of the Local Freight Agreement and now Campbell had cited him. Green answered that he thought Andrade would never work in Respondent's jurisdiction. On February 5, Andrade filed the instant unfair labor practice charge alleging that "since on or about January 31, 1979 and continuing to date [Respondent] has caused Nielsen Freight Lines to discriminate against Al Andrade by causing his termination for reasons other than his fail- ure to pay the required dues and fees required by the collective-bargaining agreement as a condition of em- ployment." On February 12, Andrade, as scheduled, was tried by Respondent's executive board. In support of his citation, Campbell at that hearing testified in substance that An- drade had acted improperly in the following respects: (I) Andrade had solicited his job by submitting a job appli- cation;14 (2) Andrade was not eligible for dispatch be- cause Respondent did not have copies of his DOT certi- ficates; (3) Andrade was registerd on "List B," hence could not be called for by name; and (4) Andrade had acted in collusion with Soto, who had called him at home. On February 13, Green phoned Campbell and they discussed the status of Antoni. Green questioned whether Antoni, who until July 1978 had not worked as a truck- driver for several years,' s was a "List A" or "List B" registrant. Campbell, relying upon the advice of Re- spondent's attorney which had been given in a compara- ble situation, explained that Antoni was a "List A" regis- trant under the terms of the Local Freight Agreement. Also during this conversation Campbell, referring to An- s The grievance was heard by a local bipartite employer-union com- mittee during late February, at which time Campbell amended his claim for relief to name Jim Blair as the worker entitled to runaround pay. Blair on February 1 was a senior driver employed by Nielsen at its Santa Rosa terminal who was on layoff. The local bipartite committee dead- locked over the grievance which was then taken to the next step of the grievance procedure, at which point Respondent's claim was allowed and Nielsen paid Blair the same amount of pay which Andrade had earned on February 1. t" Andrade admitted to the executive board that if he had filed his ap- plication at a Nielsen terminal located within Respondent's jurisdiction he would have been soliciting work, but since he did not, his conduct could not be construed as impermissible solicitation. ' Antoni for several years until July 1978 was employed as a terminal manager. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drade's testimony before Respondent's executive board on February 12, stated that Andrade's description of the way Green had been operating the Ukiah hall had made Green look pretty bad and that Campbell had been sur- prised by Andrade's criticism of Green. Campbell then asked whether it was true that Green intended to run for secretary-treasurer against Campbell in the next election. Green answered in the negative. Campbell stated that Andrade at one time had told him that he (Campbell) would lose his job as secretary-treasurer because Green was going to run against him. In view of this, Campbell stated that he was surprised that Andrade was critical of Green, but that he had heard through the "grapevine" that Andrade now intended to take "everyone on ," in- cluding Green. On February 16, Campbell wrote Andrade that he had been found guilty by Respondent's executive board as charged. The letter reads as follows: As a result of your citation to appear before the Executive Board of this Local Union on February 12, 1979, you were found guilty of the charge of violation of the Local Union By-Laws under Sec- tion 19, paragraphs 1, 2 and 3, and Section 29, and Article XIX of the International Constitution. Spe- cifically, you ignored the hiring hall procedures of the Local Freight Agreement and going to work for Nielsen Freight Lines at The Ukiah terminal without obtaining the proper clearances. The decision of the Board was to fine you the sum of $250.00 with $100.00 to be suspended on condition that you have no further violations of the Labor Agreement, Local Union By-Laws or the In- ternational Constitution for the period from Febru- ary 13, 1979 and ending August 13, 1980. If you fail to follow the By-laws of this Local Union or the International Constitution during the probation period stated above, you will be immedi- ately subject to the $100.00 suspended fine. The $150.00 fine is to be paid before any further dues will be accepted. Should you wish to appeal the decision of the Executive Board of this Local, such appeal must be submitted in accordance with Article XIX of the International Constitution. Upon receipt of this letter, Andrade appealed the execu- tive board's decision to Teamsters Joint Council No. 7 which, by letter dated March 8, informed him that he was obligated to pay his $150 fine inasmuch as article 19, section 9(a) of Respondent's international constitution reads: If the penalty is by way of fine, then the same must be paid pending an appeal, if one is taken, unless the General President upon request waives payment pending appeal. Accordingly, on March 12, Andrade paid the $150 fine. The Teamsters Joint Council No. 7 on April 4, after holding a hearing concerning the matter of Andrade's fine, upheld the verdict of Respondent's executive board. Andrade has appealed this decision to the International Union's general executive board. On February 16, Campbell wrote Andrade that "per two previous verbal reminders, DOT certification cards are required before you can be dispatched as a driver. We have no record of your DOT certification, therefore we are unable to dispatch you to any Freight Terminal as a driver until such are received" and advised Camp- bell that "This is a requirement of all who register on Local Freight." Andrade replied by letter to Campbell dated February 23 wherein he stated in pertinent part that neither Campbell nor anyone from Campbell's office had requested a copy of Andrade's DOT certificates prior to Rivetti's request when Andrade had phoned the Santa Rosa office February 20 to register on the out-of- work register. Andrade also stated that, although he dis- agreed with this requirement, he had enclosed a photo of his "DOT requirements."' 6 C. Andrade's Dispatch to Market Wholesale Grocery Is Canceled Market Wholesale Grocery Company is located in Santa Rosa, California, and during the time material herein was a party to a collective-bargaining agreement with Respondent which was scheduled to terminate June 1. This contract, unlike Respondent's contract with Niel- sen, did not include a hiring hall provision. But, as a matter of convenience, Market Wholesale used Respond- ent's Santa Rosa hiring facility to employ warehousemen. During the week of March 12, Andrade filed an employ- ment application with Market Wholesale. On March 19, at approximately 2 p.m., Market Whole- sale's warehouse superintendent, Dick Armburst, asked Respondent's hiring hall dispatcher, Stella Rivetti to dis- patch two warehousemen to Market Wholesale for the next day at 7 a.m. Rivetti asked whether Armburst wanted her to dispatch any particular persons. Armburst requested Andrade, who had never worked for the com- pany previously, and Gus Kouninos, who had worked for the company previously. Rivetti indicated that she was not able to contact Kouninos to determine whether he would be available as he was working that day for another employer and, with respect to Andrade, asked if there was any reason Armburst was asking for him by name, since he had never worked for Market Wholesale previously. Armburst stated that Andrade had submitted an employment application and they were going to try him out. Rivetti at approximately 2:30 p.m. notified Crowley and Andrade, both of whom, were registered on Respondent's out-of-work list, to report for work at Market Wholesale the next morning at 7 a.m. On March 19, shortly after learning that Market Wholesale had asked for Andrade to be dispatched for work, Respondent's Secretary-Treasurer Campbell phoned John Biaggi, Market Wholesale's general man- ager, to determine when the parties would commence their negotiations for a new collective-bargaining agree- '6 There is a dispute about whether Andrade enclosed a copy of his DOT certificates with this letter or whether they were not forwarded to Respondent until March 21. GENERAL TRUCK DRIVERS LOCAL 980 53 ment.17 Campbell asked Biaggi if the company had de- cided upon a date to start contract negotiations. Biaggi stated that the company's representatives were still working on dates and that Biaggi would get back to Campbell about the matter. At this point Campbell asked whether Market Wholesale had requested Andrade by name to go to work the next day. Biqggi answered "yes." This ended the conversation. On March 20 at about 5:20 p.m., approximately 2 hours after Campbell's conversation with Biaggi, Re- spondent's business agent, Jo Diperno, received a phone call from "Fred," an employee of Market Wholesale, asking if it was too late for the company to cancel its order for the two warehousemen. Diperno stated he would check with Respondent's office manager, Ego Roberts.' s Roberts indicated it would be all right to cancel the order, but told Diperno to first verify the fact that the company was canceling its order. So Diperno told "Fred" that Respondent was amenable to canceling its order for two warehousemen but wanted to know who had authorized the cancellation. "Fred," after talk- ing with someone, informed Diperno that Dick Armburst had told him to cancel the order. Shortly after Diperno's conversation with "Fred," rep- resentatives of Respondent notified Crowley and An- drade that their dispatch to Market Wholesale for the next morning had been canceled. Andrade, upon receipt of this information, unsuccessfully tried to get an expla- nation from Diperno, so he phoned Respondent's office and asked another business agent, Clair Cate, whether he knew why his dispatch had been canceled. Cate indicat- ed he had no knowledge about the matter but would try to find out. Cate at this time- between 6:30 p.m. and 7:30 p.m.-phoned Market Wholesale's day foreman, Brumley who, in reply to Cate's question, stated he did not know that the company's order for two workers had been canceled. Brumley stated that when he had left the warehouse that afternoon as far as he knew they needed two warehousemen for the following morning. Brumley suggested that Cate speak to Warehouse Superintendent Armburst about the matter. Cate phoned Armburst at his home and asked whether he knew anything about the cancellation of the company's request for two warehou- semen. Armburst answered in the affirmative and stated that he had received a phone call from John Biaggi in- structing him to cancel the request. Cate asked if Biaggi had told Armburst the reason for the cancellation. Arm- burst answered "that Biaggi had told him that their con- tract was open for negotiations and they did not want to get problems." On March 20, at approximately 7:30 p.m., Rivetti re- ceived a phone call from Armburst, who told her "they were jammed up [and] needed the two men after all."' " Rivetti asked if Armburst wanted to try to get the same two men she had dispatched the previous day. Armburst indicated he wanted Gus Kouninos, as he had worked '" Campbell and Biaggi had spoken about the contract negotiations two or three times prior to March 19 Ia Rivetti normally works only until 3 p.m. and when she leaves. Office Manager Roberts is in charge of dispatching. 19 The record established it is not unusual for Market Wholesale to phone Respondent the same morning it needs workers. for the company previously and that anyone else would do. Rivetti asked why the company no longer was asking for Andrade. Armburst indicated that he wanted the em- ployees to report for work as soon as possible and An- drade lived too far out of town.20 Rivetti dispatched Crowley and Kouninos to the job. 21 On March 20 at about 8 a.m., Andrade phoned Market Wholesale and asked Superintendent Armburst what happened to his dispatch. Armburst stated he had re- ceived orders "from above" to cancel the work and vol- unteered the information that "we have two men work- ing here this morning from your union office." Andrade asked him if this meant he would never get to work for Market Wholesale. Armburst stated, "it looks like that" and stated there was nothing he could do. D. Andrade Is Dispatched to Nielsen and Becomes a Regular Employee On May 17, Nielsen's terminal manager, Liddle, noti- fied Business Agent Green that he needed a local freight driver for the next day at the company's Ukiah terminal. There were two local freight drivers registered that week on Respondent's Ukiah out-of-work register, Al Andrade and Mike Bigelow. Since Bigelow was regis- tered on "List A," he had dispatch preference over An- drade. Green tried to contact Bigelow on May 17 for the Nielsen dispatch but did not succeed, as Bigelow had previously indicated he was unavailable for dispatch that day. Accordingly, Green dispatched Andrade to the job. By the date of the hearing in this matter, July 3, An- drade had worked continuously for Nielsen since May 18 and on June 15 had achieved seniority with Nielsen under the terms of the Local Freight Agreement.2 2 On May 30, Campbell spoke to Green about the pro- priety of Green's May 18 dispatch of Andrade to Niel- sen. Campbell informed Green that if a registrant was dispatched for casual work, the registrant had to be dis- patched on a day-to-day basis. Green stated he had never made this a requirement in operating the Ukiah hiring hall and that in filling employer's dispatch request he did not ask about the duration of the jobs. Campbell stated there were some "List A" registrants who were unhappy because Andrade was working. Green stated he had dis- patched Andrade during the normal course of business and asked whether Campbell wanted him to remove An- drade from the job. Campbell answered, "You won't catch me on that one." Also, Campbell indicated that he thought that Soto, Nielsen's vice president of operations, was mad at him because Soto had lost the runaround pay grievance Campbell had filed against Nielsen involving Andrade's earlier employment with Nielsen. It was due to that, Campbell told Green, that Soto intended to keep 20 Market Wholesale's work shift had already started at 7 a.m. and it would have taken Andrade about I hour to reach the company's prem- ises from his home. '1 The record establishes that. whereas Rivetti knew she could not reach Kouninos on March 19. as he was working for another employer. she was able to contact him on March 20 22 Art. 41 of the Local Freight Agreement provides that any employee who works a certain number of days for an employer within a 60-da5 period shall be placed on the employer's regular seniority list and be con sidered as a "regular employee. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Andrade working so that he would acquire sufficient se- niority to become a regular employee. On June 6, Campbell informed Green that, since Green was so busy, perhaps Campbell could lighten his workload by transferring the dispatching work from Ukiah to Santa Rosa. Green replied that he did not need any help in that particular area because there were not very many registrants on the out-of-work lists maintained in Ukiah. Campbell then stated that "we're getting a lot of complaints. I get the complaints. There have been dif- ferent things about you." Green expressed surprise that after almost 9 years of operating the out-of-work lists in Ukiah that there were suddenly complaints about his work. In reply Campbell answered, "well, you know, all your troubles were a friend of yours working up in that area." Green denied that he had anything to do with any illegal dispatching. On June 8, Campbell met with Green and in effect in- formed him that he was transferring the dispatching work being done at Ukiah to Santa Rosa. During their conversation Campbell stated that under the terms of the Local Freight Agreement's hiring hall procedure, if em- ployers wanted to hire someone, they had to tell Re- spondent the approximate duration of the job. Campbell also indicated that Andrade was improperly working for Nielsen because, after Green dispatched him for a -day job, Andrade could not work continuously for Nielsen. Green stated that he felt that the transfer of the Ukiah hiring facility to Santa Rosa was a personal attack upon himself. Campbell replied: "you damn ought to because it is." Campbell then criticized the manner in which Green had dispatched Andrade to Nielsen and stated that things had happened which persuaded him that Green was not a good business agent.2 3 On June 8, Campbell wrote Nielsen's Ukiah terminal manager, Liddle, and its vice president of operations, Soto, that effective June 11 the dispatching to freight ter- minals under Respondent's jurisdiction would be handled out of Respondent's Santa Rosa office.24 On June 14, Andrade lacked but I day from acquiring sufficient seniority with Nielsen to become a regular em- ployee. Campbell, who knew this, phoned Nielsen's president, Norman Nielsen, on June 14 and told him that he felt Andrade had been dispatched to his company im- properly in violation of the contractual hiring procedures and that Nielsen "should be using somebody else instead of Al Andrade," that Nielsen should be using "another Teamster and not Al Andrade." Campbell pointed out to President Nielsen that his company had previously used employees Bigelow and Blair to work at the Ukiah ter- minal. President Nielsen acknowledged this but took the position that Andrade had been properly dispatched. At this point Campbell asked whether President Nielsen knew that Campbell had transferred the authority to dis- patch applicants from Respondent's Ukiah office to its 23 Campbell and Green testified about their June 8 conversation. Since Green impressed me as the more credible witness, I have credited his tes- timony in those instances where there is conlfict. 24 Since about July 1978 the only freight terminals within Respond- ent's jurisdiction which had been handled out of Respondent's Ukiah office insofar as the dispatch of drivers was concerned were Nielsen's Fort Bragg and Ukiah terminals. Santa Rosa office and that from now on, when it re- quested drivers, the Ukiah terminal would be dealing with Campbell. President Nielsen stated he knew this but would continue to employ Andrade at Ukiah until such time as his company did not need him, inasmuch as An- drade had been properly dispatched on "a continued dis- patch call" and was doing a good job. Nielsen mentioned that Andrade was approaching the point where he would acquire sufficient seniority with Nielsen to become a reg- ular employee and expressed the view that there seemed to be some difficulty between Campbell and Andrade about this but that this was none of the company's busi- ness and that the company did not want to take sides. Campbell stated that Nielsen had already taken sides and was "involved." President Nielsen expressed the hope that this was not the reason why Respondent had filed certain grievances against his company, at which point the conversation became a "little heated" with Campbell denying that grievances had been filed in retaliation for Nielsen's employment of Andrade. Campbell repeated his earlier statement that Nielsen should be employing some- one else instead of Andrade. President Nielsen reiterated that he felt justified in continuing to employ Andrade and ended the conversation by advising Campbell that since this was not his area of responsibility, if he wanted to continue to press the matter he should speak to Soto. Campbell stated he would do so and this ended the con- versation. 2 E. Conclusionary Findings 1. Respondent fines Andrade as the result of Campbell's citation As the result of Campbell's citation, Andrade was tried by Respondent's executive board and found guilty of violating Respondent's constitution and bylaws because he had gone to work for Nielsen on February I in viola- tion of the hiring procedures of the Local Freight Agreement. The person who filed the citation which re- sulted in Andrade's conviction and fine, Respondent Sec- retary-Treasurer Campbell, testified that he filed the cita- tion because Andrade had worked for Nielsen on Febru- ary 1 "without proper clearance." He further testified that his only reasons for reaching this conclusion were as follows: (1) Andrade was not registered on the out-of- work register when he went to work for Nielsen; (2) there were "List A" registrants who had preference over Andrade for employment; (3) Andrade had not furnished Respondent with copies of his DOT certificates; and (4) Nielsen, prior to the evening of January 31, had known it would need a casual to work February 1, yet did not call Respondent's hiring hall. An examination of the record establishes that, without regard to whether or not they are supported by the record, Campbell's first three reasons are completely without substance and border on the frivolous inasmuch as the record establishes that the after-hours clause of the Local Freight Agreement's hiring procedure permitted 2' The description of the Nieslen-Campbell June 14 conversation is based upon Nielsen's tetsimony. I have rejected Campbell's testimony which in certain significant respects conflicts with Nielsen's because, in my opinion, Nielsen impressed me as the more credible witness. GENERAL TRUCK DRIVERS LOCAL 980 55 Andrade to accept casual work without being dispatched by Respondent so long as the job offer was made to An- drade after the hiring hall was closed. 2 6 This is exactly what took place in connection with Andrade's February I job with Nielsen. Under the circumstances, the fact that on January 31 Andrade may not have been eligible for dispatch for all or one of Campbell's reasons (1) through (3), supra, is completely irrelevant inasmuch as, under the terms of the Local Freight Agreement, An- drade was free to accept Nielsen's job offer without being dispatched by Respondent. Also the record does not support Campbell's further contention that, prior to the evening of Janaury 31, Niel- sen knew it would need a casual on February 1. Rather, the record establishes Nielsen did not know until the evening of January 31, after Respondent's Ukiah hiring hall was closed, that it needed a casual for the next day, at which point Andrade was hired. Any doubt in Camp- bell's mind concerning this should have been removed by the results of Campbell's own investigation. Thus, on February 1, Business Agent Green informed Campbell that Terminal Manager Liddle had advised Green that his earlier comment to Green was incorrect and that it was not until the evening of January 31, after Respond- ent's hiring hall was closed, that Goslin had asked to be absent February 1. In addition, on either February 2 or February 5, Green informed Campbell that he had spoken to Goslin about Liddle's aforesaid statement and that Goslin corroborated Liddle. And, on February 8, Liddle, in answer to Campbell's inquiry, told Campbell he had not known he would need a casual for February I until the evening of Janaury 31. In short, Campbell, several days before the February 12 hearing concerning his citation against Andrade, had no reasonable basis for believing that Nielsen, in an effort to circumvent the Local Freight Agreement's hiring procedure, had ne- glected to call Respondent for the casual worker it needed on February 1. In any event, assuming Campbell believed Nielsen had not called Respondent's hiring hall for a casual so it could take advantage of the after-hours clause to hire Andrade, there is insufficient evidence that Andrade was a party to this scheme or that Campbell filed his citation against Andrade because he believed Andrade was involved in such a scheme. This was not one of the reasons advanced by Campbell at the instant hearing for filing the citation. Quite the contrary, he tes- tified that thought that Andrade might have solicited his job with Nielsen was not one of the reasons which prompted him to file the citation against Andrade. It is for the foregoing reasons that I find Campbell's reasons for filing his February 2 citation against An- drade, which resulted in Andrade's fine, were completely without substance and were not the real reasons which motivated Campbell. The law is settled that, where an employer representa- tive or union representative advances a false reason in support of conduct which adversely affects employees, the logical inference is that there was another motive which prompted the conduct and that this hidden motive 2o Sec 5 of the Local Freight Agreement's hiring procedure specifical- ly states that if Respondent's hiring hall is closed "the employer may then hire such casual workers from any other available source." is an unlawful one, provided "the surrounding circum- stances tend to reinforce that inference" Shattuck Denn Mining Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d 466, 470 (9th cir. 1966). The General Counsel, as al- leged in the amended complaint, contends that the sur- rounding circumstances herein establish that Campbell's real motive in citing Andrade for violating the Local Feight Agreement's hiring procedure was to punish him because of "his intra-union sympathies and activities in opposition to [Campbell]." I do not believe that a pre- ponderance of the evidence supports this allegation. The record establishes that, during the period Andrade worked for Campbell as a business agent and organizer, Campbell was displeased and upset with Andrade be- cause of Andrade's job performance and because An- drade was critical of the manner in which Campbell was managing Respondent and because Andrade did not inform Campbell why certain business agents were "plot- ting against" him. There is no evidence that Andrade ever engaged in any activity whatsoever aimed at oust- ing Campbell from his position of secretary-treasurer at the next union election scheduled for October 1980. 1 recognize that, in September 1978, Andrade, while ex- plaining to Campbell why certain business agents were unhappy with Campbell, stated that he thought Respond- ent's membership would vote Campbell out of office. This is insufficient, in my view, to support an inference that Campbell, when he cited Andrade several months later, believed that Andrade intended to oppose his ree- lection. Moreover, there is no evidence that Campbell ever said anything which indicated he was hostile toward Andrade because he believed Andrade opposed his reelection. Campbell's February 13 statement to Busi- ness Agent Green that Campbell had learned through the "grapevine" that Andrade now intended "to take every- one on" is not sufficient to establish such hostility, inas- much as it is too vague and equivocal. And, even assum- ing that it can reasonably be construed as indicating Campbell thought Andrade intended to oppose his ree- lection, it is just as probable that Campbell learned of this information through the "grapevine" only after he filed his citation against Andrade, rather than before. In any event, as indicated previously, there is no evidence that Campbell harbored ill will toward Andrade because he thought Andrade intended to oppose his reelection. This is not surprising in view of the absence of such po- litical activity by Andrade and the fact that the election was almost 2 years in the future. Based upon the foregoing, I find that Campbell in filing his citation against Andrade, which resulted in An- drade's being fined by Respondent, was motivated by his personal animosity toward Andrade, rather than a belief that Andrade had violated the governing hiring hall pro- cedures. I further find for the reasons set forth above, that the record fails to establish by a preponderance of the evidence that Campbell's animosity toward Andrade was based, in whole or in part, upon a belief that An- drade was engaged in intraunion activity with the object of opposing Campbell's reelection or intended to engage in such activity in the future. Therefore, I shall recom- mend that the portion of the amended complaint which alleges that Respondent violated Section 8(b)(1)(A) by 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD imposing a fine upon Andrade because of his "intraunion sympathies and activities in opposition to [Campbell]" be dismissed in its entirety. 2. Respondent informs Andrade it will not accept his membership dues until he has paid his fine The amended complaint alleges that, on February 16, Respondent notified Andrade it would refuse to accept his membership dues until he paid the fine Respondent levied against him and further alleges that by engaging in this conduct Respondent violated Section 8(b)(l)(A) of the Act. In this connection, it is undisputed that, on Feb- ruary 16, Respondent's secretary-treasurer wrote An- drade that Respondent's executive board had found him guilty of violating Respondent's constitution and bylaws and had fined him $250, of which $100 was suspended. The letter further advised Andrade: "The $150 fine is to be paid before any further dues will be accepted." I agree with the General Counsel that Respondent violat- ed Section 8(b)(1)(A) by notifying Andrade that he was required to pay his fine before Respondent would accept his membership dues. International Union of Elevator Constructors, Local Union No. 8, AFL-CIO (San Francis- co Elevator Co.), 243 NLRB No. 10, fn. 1 (1979). 3. Respondent refuses to dispatch Andrade to Nielsen The amended complaint alleges that, on or about Feb- ruary 1, Respondent caused Nielsen to "terminate and/or fail to employ" Andrade for reasons proscribed by the Act. There is no evidence or contention that Respondent caused Nielsen to terminate Andrade; accordingly, I shall recommend that this part of the allegation be dis- missed. Regarding the allegation that Respondent on or about February I caused Nielsen to fail to employ Andrade, the evidence, described in detail supra, establishes that Liddle, Nielsen's terminal manager, on February 2 indi- cated to Respondent Business Agent Green that later in February the employer would need the services of a casual local driver and wanted Respondent to dispatch Andrade for this work. Green's reply, in essence, was that under the terms of the Local Freight Agreement's hiring procedure Nielsen could not specifically request Andrade's dispatch because he was a "List B" rather than a "List A" registrant. Andrade was in fact a "List B" registrant and Green correctly interpreted the con- tractual hiring procedure. In other words, Green's con- duct was sanctioned by the terms of the governing col- lective-bargaining agreement. And there is no evidence Respondent treated Andrade differently from other "List B" registrants when it refused to allow Nielsen to spe- cifically request his dispatch. Quite the contrary, the record establishes that Respondent does not allow em- ployers to specifically request a particular "List B" regis- trant for casual work. Under the circumstances, the Gen- eral Counsel has failed to establish that Respondent's re- fusal to honor Nielsen's request for Andrade's dispatch was a pretext and that the real reason for the refusal was Campbell's personal animosity toward Andrade. Based upon the foregoing I find that Respondent's re- fusal on February 2 to comply with Nielsen's specific re- quest that Andrade be dispatched later during the month was not a violation of the Act, 27 and I shall therefore recommend the dismissal of that part of the complaint which alleges that, on or about February 1, Respondent caused Nielsen to "fail to employ" Andrade for illegal reasons. 4. Respondent attempts to cause Nielsen to terminate Andrade The amended complaint alleges that, on June 14, Re- spondent attempted to cause Nielsen to terminate An- drade's employment for reasons proscribed by the Act. An evaluation of the evidence pertinent to this allegation reveals the following. On May 17, the manager of Nielsen's Ukiah terminal contacted Business Agent Green, who was in charge of Respondent's Ukiah hiring hall, and asked Green to dis- patch a local freight driver to the terminal the next day. Green dispatched Andrade. The circumstances surround- ing Green's dispatch of Andrade, which were described in detail supra, establish Andrade's dispatch complied with the hiring procedure of the Local Freight Agree- ment. On the date of the hearing in this case, July 3, An- drade had worked continuously since May 18 for Nieslen at its Ukiah terminal as a local freight driver. On June 15 Andrade had been employed by Nielsen the requisite number of days so as to achieve seniority with Nielsen under the terms of the Local Freight Agreement and on that day became a regular employee of Nielsen's. On June 14, the day before Andrade became a regular employee, Respondent Secretary-Treasurer Campbell phoned Nielsen President Norman Nielsen and, as de- scribed in detail supra, told him Andrade had been dis- patched to Nielsen in violation of the Local Freight Agreement's hiring procedure and stated to Norman Nielsen that the employer "should be using somebody else instead of Al Andrade" and asked that Norman Nielsen use "another Teamster and not Al Andrade" and pointed out that in the past the employer had used two of the employer's Santa Rosa drivers, who were on layoff, to work at the Ukiah terminal. The sole evidence presented by Respondent, that the employment of Andrade by Nielsen violated the Local Freight Agreement or was otherwise impermissible, was Campbell's testimony that Nielsen on May 17, when it asked Respondent to dispatch a local driver to its Ukiah terminal, asked for a driver for I day only; thus, after May 18, Andrade's employment should have been termi- nated. In other words, Campbell testified Andrade was working continuously for Nielsen, even though he had been dispatched for a I-day job. The record does not support this contention. The terminal manager's May 17 z' I note there is no contention that in February, subsequent to Febru- ary 2, Nielsen asked Respondent to dispatch a local driver to its Ukiah terminal for casual work and that, in complying with this request, Re- spondent discriminated against Andrade Indeed, there is no evidence that in February, following its unsuccessful attempt on February 2 to secure Respondent's commitment to specifically refer Andrade for casual work, Nielsen ever requested that Respondent refer a casual to its Ukiah terminal GENERAL TRUCK DRIVERS LOCAL 980 57 request that a local truckdriver be dispatched on May 18 was not worded specifically in terms of a 1-day job. In fact, Andrade worked continuously for Nielsen from May 18 to at least July 3, which indicates that Nielsen intended to employ the driver it requested for several days. But more significant, in evaluating Campbell's mo- tivation, is Campbell's inability to explain convincingly why he believed that Andrade's dispatch was for I day only. His testimony, that the reason he thought that An- drade's dispatch was for I day was that '[t]he dispatch shows that he was just dispatched for one day," is belied by the dispatch slip which Respondent issued to An- drade which does not indicate the job was just for 1 day. Based upon the foregoing, I find Andrade was dis- patched by Respondent to his job with Nielsen on May 18 in compliance with the hiring procedure of the gov- erning collective-bargaining agreement and, on June 14, was properly working for Nielsen and that Campbell's attempt on June 14 to cause Nielsen to terminate An- drade's employment was not based upon any legitimate reason. These circumstances, viewed in light of the evi- dence, supra, which indicates that Campbell was person- ally antagonistic toward Andrade due to Andrade's con- duct which had occurred while Andrade was working for Campbell and Andrade's conduct of accepting a job with Nielsen on February 1, warrants the inference that Campbell's attempt to cause Nielsen on June 14 to termi- nate Andrade was motivated by personal considerations. It is for the foregoing reasons that I find Respondent violated Section 8(b)(2) of the Act by attempting to cause" Nielsen to discriminate against Andrade in viola- tion of Section 8(b)(2) of the Act. 29 2 I have considered that Campbell during his June 14 conversation with Norman Nielsen expressed no threats, either express or implied, nor did he indicate Respondent would take retaliatory action if Nielsen failed to comply with Campbell's request that it replace Andrade with another teamster. Nonetheless, I am of the opinion that Campbell's bare request for Andrade's termination violated Sec. 8(b)(2), as the Board and courts have stated that a violation of Sec. 8(b)(2) "'can exist . . . where an in- ducing communication is in terms courteous or even precatory as where it is rude and demanding."' N.L.R.B. v. St Joe Paper Company and Local 118, International Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of America, 319 F.2d 819, 820 821 (2d Cir 1963), quoting from N.L.R.B. v Jarka Corporation of Philadelphia, 198 F.2d 618, 621 (3d Cir. 1952) In St. Joe Paper, the court held that the statement by a union official to an employer that as long as the shop was a union shop, "the union man . [should] be kept on" was sufficient to constitute a viola- tion of Sec 8(b)(2) Similarly, in Jarku, the court held that the statements, "you can't carry . . [a nonmember of the Union]" and "you got to take [a union man]," were violative of the Act. In other words, the conduct of a union representative which is "tantamount to a request to discriminate with respect to the terms of' an employee's employment, and is "reason- ably calculated to bring about that result" violates Sec. 8(bX2) of the Act. N.L.R.. v. Miami Valley Carpenters' District Council of Dayton. Ohio, United Brotherhood of Carpenters and Joiners of America, AFL-CIO(), 297 F. 2d 920, 921 (6th Cir. 1962) Campbell's June 14 conduct falls into this category. 29 The law is settled that where, as in the instant case, a representative of a union engages in conduct calculated to adversely affect an employ- ee's job because of the personal hostility of the union representative toward the employee, the union violates Sec 8(b)(2) of the Act. .L. R v. International Longshoremens & Warehouse'men's Union Local 27. 514 F.2d 481, 483 (9th Cir 1975). Union-caused discrimination has.'ld on grounds, such as anger or personal hostility, are unlawful, for such cn- duct "encourages membership in [the union] and stands as a ariling to employees that favor and good will of responsible uniin fficials is t,, h nurtured and sustained." Local 1070 of the United Brotherhood Of ('arpn- ters and Joiners of America (B. Horn Company), 137 NLRB 41tL 442 5. Market Wholesale cancels Andrade's dispatch The amended complaint alleges that, on March 19, Re- spondent caused Market Wholesale to refuse to employ Andrade for reasons proscribed by the Act. I am of the opinion the General Counsel has not carried his burden of proving by a preponderance of the evidence that Re- spondent caused Market Wholesale to refuse to employ Andrade; therefore, I shall recommend the dismissal of this allegation. I have considered that Market Wholesale's decision to cancel its request that Respondent dispatch Andrade was made shortly after Respondent Secretary-Treasurer Campbell spoke to Market Wholesale's general manager, Biaggi, about Andrade's dispatch and that the next day Market Wholesale reinstated its original dispatch order, but expressly declined to employ Andrade. These cir- cumstances, plus Campbell's personal hostility toward Andrade, makes me suspicious of Campbell's testimony that, when he spoke to Biaggi about Andrade, he made no effort to dissuade him from employing Andrade. However, Campbell's testimony about this conversation is uncontradicted, it is not inherently incredible and, more important, while testifying about this conversation he impressed me as a sincere witness. And, in connection with Market Wholesale's reinstatement of its canceled re- quest for warehousemen, the record, as described in detail, supra, establishes that Market Wholesale, acting on its own volition, without any prompting from Re- spondent, refused to employ Andrade because of legiti- mate business considerations. Nor is the testimony of Respondent Business Agent Cate that Market Wholesale's warehouse superintendent, Armburst, told Cate that General Manager Biaggi had instructed Armburst to cancel the employer's March 19 request that Respondent dispatch two warehousemen be- cause "they did not want to get problems," as Market Wholesale's contract with Respondent was open for ne- gotiations, sufficient to establish that Respondent had en- gaged in conduct designed to cause the company to refuse to employ Andrade. Likewise, the testimony of Andrade, that Armburst told him that he had received orders "from above" to cancel Andrade's March 19 dis- patch, is not sufficient to establish this. The aforesaid statements are vague and equivocal and, in any event, are clearly hearsay with respect to Respondent and for that reason cannot be used as evidence against Respond- ent to prove Respondent caused Market Wholesale to refuse to employ Andrade. Brotherhood of Railway. Air- line and Steamship Clerks. Freight Handlers, Express and Station Employees, AFL-CIO (Safety Cabs, Inc. and New Deal Cab Company. Inc.), 180 NLRB 126 (1969) Local 776, IA TSE (Film Editors) (Cascade Pictures of California. Inc.), 124 NLRB 842, fn. 2 (1959); Walter J. Barnes Elec- trical Co., Inc., 188 NLRB 183, 186, 187 (1971). (1962) Accord: International Union of Operating Engineers. HIloting and Portable Local No. 513. AFL-CIO (S. J Grovers and Sons Co(). 199 NLRB 921 1972); N.L.R.B. Hod Carriers and Construction Laborrs Unlo,. Local No. 300 (Desert Pipeline Construction Co.i 392 F2d 581RI 581 582 (9th Cir 1968): United 4ssociation of Journekmnn and Ippretntsri of the Plumbing and Pipe F itring Industrv of the United States and ('analda Local 675..4 AL -(0 (Mid-Pacific Construction Companyi. 161 NI RHI 1351, I 55 (1966), enfd 427 F.2d 141, 342 (9th Cir 1'67) 5X DECISIONS OF NATIONAL LABOR RELATIONS BOARD Based upon the foregoing, I find that the record con- tains insufficient evidence, either direct or circumstantial, to support a reasonable inference of a request by Re- spondent or an understanding between Respondent and Market Wholesale that Market Wholesale would not employ Andrade. Accordingly, I am constrained to find that the General Counsel has not carried his burden of proving by a preponderance of the evidence that Re- spondent caused Market Wholesale to refuse to employ Andrade. It is for this reason that I shall recommend that this allegation be dismissed. 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 30 The Respondent, General Truck Drivers, Warehouse- men & Helpers Union, Local 980, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Santa Rosa, California, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Attempting to cause Nielsen Freight Lines, Inc., to discriminate against any employee in violation of Section 8(a)(3) of the Act. (b) Restraining and coercing employees and members in the exercise of rights guaranteed in Section 7 of the :"' 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 Act by informing them that fines imposed by Respond- ent are payable before Respondent will accept their membership dues. (c) In any like or related manner restraining or coerc- ing employees and members in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Post at its offices and meeting halls in Ukiah and Santa Rosa, California, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered. defaced, or cov- ered by any other material. Respondent shall also sign copies of the notice which the Regional Director shall make available for posting by Nielsen Freight Lines, Inc., if it be willing. (b) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the amended complaint be dismissed insofar as it alleges violations of the Act not specifically found. "' In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."