Truck Drivers Union Local No. 407

TRUCK DRIVERS UNION LOCAL NO. 407 59 Truck Drivers Union Local No. 407, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Wenham Transportation, Inc.) and Carl J. Novello. Case 8-CB-3534 April 25, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On January 11, 1980, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I The General Counsel has excepted to certain credibility findings made b the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all ,of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 62 (3d Cir 1951). We have carefully examined the record ad find no basis for re- versing his findings DECISION BERNARD RIES, Administrative Law Judge: This matter was heard in Cleveland, Ohio, on August 1-2, 1979. The complaint alleges that Respondent Truck Drivers Union Local No. 407 affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse men and Helpers of America' agents, in the course of a year, failed on five occasions to fulfill Respondent's duty of fair representation, and that Respondent thereby violated Section 8(b)(l)(A) of the Act. The answer to the complaint denies all material allegations of the com- plaint. 2 As amended at the hearing The parties agree. however, that the employer involved. Wenham Transportation, Inc., is an employer engaged in commerce ithin the meaning of the Act, and that Respotident is a labor orgalizatioln a, de- 249 NLRB No. 7 Briefs have been received from the parties. I have carefully considered the briefs and the entire record. 3 Based on that consideration, and my recollection of the demeanor of the witnesses, I make the following find- ings, conclusions, and recommendation. Before discussing the evidence, it seems useful to set out for handy reference the critical allegations of the complaint. Paragraphs 8 and 9 of the complaint read as follows: 8. (A) The Employer and the Respondent are parties to the National Master Freight Agreement Covering Over-The-Road and Local Cartage Em- ployees of Private Common, Contract and Local Cartage Carriers for the period April 1, 1976, through March 31, 1979, and Central States Area Iron and Steel Agreement for the same period. (B) For approximately 25 years until and includ- ing December 31, 1976, the Respondent and the Employer maintained a Red Circle Board providing the most senior drivers working out of the Employ- er's Cleveland, Ohio, terminal with their choice of loads on the trucking run from Cleveland to Chica- go. The Charging Party, Henry Linski, Darrell Beals, and Carlton Sperling were the four employ- ees remaining on the Red Circle Board as of De- cember 14, 1976. (C) On or about December 14, 1976, the Joint Area Conference (an Employer-Respondent panel) hereinafter referred to as JAC, agreed to a six- month trial period for a new set of dispatch rules for all of the Employer's terminals including the Cleveland terminal involved herein which was pro- posed by the Employer pursuant to the collective- bargining agreement referred to in subparagraph 8(A) above with the exception that Red Circle pref- erence was to remain in effect during this period. (D) Notwithstanding the JAC decision in subpar- agraph 8(C) above, commencing in January 1977, the Employer discontinued Red Circle preference at its terminals including the Cleveland terminal. (E) On or about June 14, 1977, the JAC ap- proved the Employer's new dispatch rules for a new six-month period but again determined that Red Circle preference would continue to remain in effect for this period. 9. (A) On or about January 1977 in response to a complaint from drivers based at the Employer's Cleveland terminal concerning loss of Red Circle preference, Respondent, through its agent and rep- resentative Business representative, James Horta, notwithstanding the JAC decision referred to in subparagraph 8(C) above, willfully misrepresented the December 1976 JAC Red Circle decision by ad- vising said employees that JAC had eliminated Red Circle for a six-month period. (B) On or about June 14, 1977, Respondent. through its agent, Business Representative James fined by the Act. I conclude that it is appropriate for the Board to Pssert Jurisdiction herein :1 Sua ponit, I hereb) correct the official transcript of proceedings n this clse in certain respects 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Horta, after previously advising a Cleveland based driver employee of the Employer whose employ- ment had been affected by the Employer's elimina- tion of Red Circle preference that Horta would at- tempt to obtain restoration of Red Circle preference at the June 14, 1977, JAC meeting, took a contrary position at said meeting and supported the Employ- er's proposal to eliminate Red Circle preference. (C) In or about June 1977, Respondent, through its agent, Business Representative Robert Moody, notwithstanding the JAC decision referred to in subpargraph 8(E) above, willfully misrepresented to a Cleveland-based driver employee of the Employer affected by the Employer's Red Circle actions, that Red Circle preference had been eliminated by the June 1977 JAC decision. (D) Since in or about December 1976 and June 1977 JAC meetings, and continuing to date the Union has failed and refused, and continues to fail and refuse to seek Employer compliance with the JAC Red Circle decisions of Decembe 14, 1976, and June 14, 1977, and to preserve Red Circle pref- erence for employees Novello, Linski, Beals, and Sperling. (E) In or about December 1977, at a JAC meet- ing, the Union, through its agent, Business Repre- sentative James Horta, failed and refused to pros- ecute in good faith employee Novello's grievance as to elimination of Red Circle preference. Wenham is an Ohio corporation engaged principally in the interstate transportation of freight. At material times, it operated 19 terminals4 in a seven-state area. Working under the bargaining agreements referred to in the com- plaint, above, Wenham recognizes various locals (appar- ently about 11 different ones) of the Teamsters Union at its several terminals. At the Cleveland terminal which concerns us here, Respondent Local No. 407 represents Wenham's 30-40 drivers. Somewhat obscure are the origins and dimensions of the personnel practice which is at the core of this pro- ceeding, the so-called red circle preference, It appears that, perhaps in the early 1950's, Wenham began to make special provision for its more senior drivers based in Cleveland, affording them a priority in their choice of dispatches out of the Cleveland terminal.5 The extent and method of operation of the preference is not com- pletly clear. Carl Novello, the Charging Party, who has been em- ployed by Wenham for more than 30 years, and who was one of the four remaining red-circle men at the time of the hearing, 6 testified that the preference only permit- ted the favored drivers to have first crack at the Cleve- land-to-Chicago-area runs, and in fact Novello made no other hauls for a quarter century. He also testified that a separate dispatch board was operated for the red-circle ' See Resp. Exh I s All of Wenham's over-the-road drivers own their vehicles. Respond- ert has raised no question about their status as statutory employees i There were evidently about 14 red-circle drivers at (mone poinlt The practice of denominaltig a driver as a red-circle man stopped with Henry Linski around 1960, and the group had, with death and retirement, dimin- ished to four drivers (Novello, Linski, [teals, and Sperling) by 1979, men. Such documentary evidence as there is in evidence, on preference, is not entirely consistent with Novello's testimony. The earliest document to be found, a September 1972 memorandum from Wenham's then-president, Pempin, which outlines the "methods of dispatch for the six red- circle men out of the Cleveland Terminal," does state that "a separate board will be maintained for the Red- Circle men," but is silent as to whether the preference applies only to Cleveland-Chicago runs. An April 1975 copy of the Cleveland dispatch rules also indicates that there was no limitation as to the scope of the preference, and makes it appear that only one board was used ("It is understood that the five red circle seniority men get placed on the board for load choice and assignment ahead of the regular men already listed on the board"). An undated document setting out the Cleveland dispatch rules states, "All drivers get on the board on a first-in- first-out system with the exception of the six red-circle men who have the oldest seniority. These red-circle men always have their selection of loads before any other driver. This has been a past practice."7 Whatever the precise rights and limitations of the red- circle practice, however, it appears that it was consid- ered valuable, certainly by Novello. 8 Frederick Wenham, president of the Company since August 1975, testified that prior to 1977, the disparity in dispatch procedures which obtained at the Company's terminals had brought about unhappiness and inefficien- cy,9 and that he concluded that uniform dispatch proce- dures should be promulgated for all the terminals. He prepared such rules and had them docketed for discus- sion at the Joint Area Conference (JAC) meeting sched- uled for December 1976; under the bargaining agree- ments, the JAC, a joint labor-management committee, is authorized to approved or disapprove the adoption of such procedures. The principal change in operations wrought by the proposed rules appears to have been the adoption of a "forced board" in place of a "roll board" at some of the terminals; one effect of the new rules was to abolish the red-circle preference at the Cleveland ter- minal. James Horta was, at the time, the business agent of Local 407 assigned to represent Wenham's Cleveland drivers. The red-circle drivers in that group evidently made clear to Horta that they opposed the new proce- dures, since the transcript of the December 1976 JAC meeting shows that Horta registered a flat protest against the rules on behalf on Local 407 at that meeting, noting that the rules would effectively eliminate the red-circle preference. Representatives of the other Teamsters locals, representing other Wenham terminals, were gen- i Since the document refers to "six" red-circle men, it obviously pre- dates the April 1975 copy of the rules. 8 The record shows, however, that when the Company abolished the preference none of the other red-circle men officially complained. Whether Novello made monley, oir lost it, as a result of the abolition of the preference in Janluary 1977, is shown by certain exhibits to be a con- troverted question u Wenhlan melntionlid the waste (of fuel occasioned by a Vanlaert-based driver unloading at Warrenl who then Aas forced. by local rules, to dead- head back to Vanwert to pick up his next load. instead of loading at Warren. TRUCK DRIVERS UNION LOCAL NO. 407 61 erally agreeable to the revised rules, however, but some asked that they be put into effect only conditionally, for a 6-month period until the June 1977 JAC meeting, so that they could explore the sentiments of their members. The committee adopted this suggestion and issued the following decision: Based on the facts as presented, it is the decision of this committee by majority vote that the dispatch and work rules are hereby approved subject to a review of same within six months at the June JAC (1977) meeting. Those locals who have not had the opportunity to take the rules and dispatch to their membership may do so for explanation and approv- al. Novello testified that a few days after the hearing, he asked Horta' ° about the results of the meeting, and Horta told him "that he was outvoted by all the other locals that represented Wenham Transportation in a dif- ferent city where they have a terminal. All the business agents outvoted him, and that we had lost it [referring to the red circle] only for a six month trial period." Horta went on to say that "he didn't like the ruling and that is the end of it, and we had to live with it for a six-month trial period when the JAC rules, that is it." Horta further told Novello that they "would try when they have to go back in June, that they have to take a vote, that all the locals were instructed when they come back to the June meeting they should take a vote of the members to see if they wanted to work under these new work rules or go back to the old system." After the JAC meeting, the Company put the new rules into effect, and the red-circle men lost their prefer- ence. In January, at Novello's request, Horta caused the Company to post a dormant Detroit bid run, which was then awarded to Novello. During a conversation with Horta in this period, Novello spoke of the possibility of being red circled again if the old system was restored, and Horta said, "After we get it back at the JAC hearing and we win it back, you will go back to Chicago like you always were." As set out above, the complaint asserts that the JAC decided in December 1976 that the new rules would un- dergo a 6-month trial period "with the exception that Red Circle preference was to remain in effect during this period," and that Horta thereafter, in January 1977, "willfully misrepresented the December 1976 JAC Red Circle decision by advising . . . employees that JAC had eliminated Red Circle for a six-month period. I am unable to follow the thread of this argument. The JAC formal decision, set out above, unequivocally adopts the proposed procedures for a 6-month period in toto, with no red circle exception. That is precisely what Horta told Novello. In his brief, General Counsel asserts, "At the December 1976 meeting, the JAC decided to allow the proposed new rules to be put into effect for a six-month trial period and to inform the parties that Red Circle must be preserved." (Jt. Exh. 2) In the transcript 10 Horta did not testify There as nothing inherently improbable about Novello's description of this conversation with Horta. and I credit him abtxut this meeting of the December meeting the only reference to the red- circle practice occurs in the caucus of the committee, outside of the hearing of Horta and the other parties: MR. JOHANNES: My motion is that we approve the rules and regulations until the June JAC meet- ing, and those locals that have not had the opportu- nity to take the rules to the membership be allowed to get the membership approval and report back in June, and the red circles at 407- MR. WOLFE: I don't think you ought to put that in the motion, all those adjustments. MR. Szucs: We will just remind them of it. Whatever Johannes, a business agent for Local 200, might have gone on to say about "the red circles at 407" is lost to the world forever. What, if anything, the com- mittee "remind[ed]" the parties of is nowhere shown in the record. Two things are clear: one is that Horta was not present during the committee caucus in which this fleeting reference to the red circle was made; the second is that no reasonable person reading the committee's de- cision could have disagreed with Horta's belief that the proposed rules had been adopted and, ipso facto, the red circle temporarily eliminated." On this state of the record, there is no basis at all for the argument that Horta willfully deceived Novello by failing to notify him that "the JAC decided . . . to inform the parties that Red Circle must be preserved."1 2 I would dismiss this allegation of the complaint. The next allegation is that Horta, having advised No- vello that he would attempt to seek restoration of the preference at the June 1977 meeting, "took a contrary position at said meeting and supported the Employer's proposal to eliminate Red Circle preference." For reasons unknown, Respondent has a practice of rotating business agents about every 4 months. As a result of that practice, Everett (Bob) Moody succeeded Horta and began servicing the Cleveland Wenham driv- ers on or about February 7, 1977; thereafter, William Cassidy succeeded Moody on May 30. Around May 16, in preparation for the upcoming June JAC meeting, Moody conducted a mail ballot among the Cleveland drivers to determine whether they preferred the "dis- patch procedure now in effect" or the one "in effect prior to January 1977." Novello was a member of the three-man committee which counted the ballots: the tally showed that of the 22 ballots cast (of 39 mailed out), 19 of Wenham's Cleveland drivers voted against the new rules. By June 14, the date of the JAC meeting, William Cas- sidy had become the Local 407 business agent handling the Cleveland Wenham employees. Cassidy, Horta, and Moody all attended the meeting, along with other Team- ster local agents representing other Wenham employees, ' The transcript of the June 1977 JAC meeting, discussed infra, has Horta plainly demonstrating that he so understood: "When you granted the temporary thing, the only objection that we had on record on the five people at red circle, the decision was to put these people on the rules, and the procedure as to be followed with everybody, because there was no language under the red circle five people." 12 As shown below, when the committee wished to specifically pre- serve the preference, it knew how to do so 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and President Wenham. General Counsel's brief states, "[T]he transcript of the June 1977 JAC meeting revealed that Horta and his colleague Moody made no effort to restore Red Circle; to the contrary, Horta joined the Employer in opposing it, claiming it had been eliminated and that it was, in any event, so vague a preference system as to be illusory as an Employer obligation." In my view, this characterization does not faithfully reflect the evidence. The transcript shows that, at the beginning of the dis- cussion on whether to make permanent the new proce- dures, Horta raised a question about the five red-circle drivers, pointing out that he had done so at the previous meeting. President Wenham then interjected that the derivation of the preference was hazy and that its "defi- nition . . . has gone back and forth, and no one knows who it is." Robert Cassidy, president of Local 92, chair- man for the Ohio locals, and cochairman of the JAC, ex- pressed his belief that the preference was still in effect in Cleveland, and Wenham replied that "there is a ques- tion" as to that. Further discussion followed with Horta stating, as ear- lier noted, his understanding that the December meeting had put the red-circle drivers "on the rules." He went on to say, obviously responding to Wenham's expression of confusion, that he had been unable to definitively ascer- tain the meaning of the red circle, and he continued: "If I talk to five people, I get five different answers, so I really don't know exactly what it is all about, but these people, in the past have been red circle, they have been notified as they were red circled, but just exactly what the things are, I don't know." Wenham responded, "Nobody knows." Robert Cassidy then made a short speech which, in the context of the remainder of the transcript, made it reasonably clear that the red circle would in all likeli- hood be preserved at the Cleveland terminal; I say this because Cassidy, clearly a power at the conference, ended his remarks with "if these people are not red-cir- cled, there is no agreement with this company as far as the local unions and the State of Ohio are concerned." 3 More discussion ensued, with other local representa- tives announcing various positions on the procedures, and the committee ultimately agreed on its decision, this time expressly incorporating the red-circle preference at Cleveland but still making the institution of the rules somewhat less than permanent: Based on the facts as presented, it [is] the decision of this committee by majority vote that the request of the Company for approval of its dispatch proce- dure and work rules are [sic] hereby granted subject to the beds, [sic] runs for Detroit and the red circle at Local 407. However, this committee may review this matter at the December, 1977 JAC hearing. The claim that Horta violated the law by asserting that the preference had been eliminated at the prior JAC meeting is unformed; there is, as previously stated, no "' Cassidy subsequently reiterated his position: [Elither the company has agreed right now on the red circle or they don't have a dispatch pro- cedure." evidence to show that it had not been eliminated (dispite Robert Cassidy's apparent belief to the contrary) and there was every reason, as also earlier discussed, for Horta to believe that it had been lost, temporarily, with the conditional adoption of the new rules in December. As for the claim on brief that Horta made "no effort to restore" the preference, that is not so. When the subject of the acceptability of the new pro- cedures was opened, Horta was the first of the local rep- resentatives to speak to that question, and he was specific about the aspect of the procedures he wanted to discuss: "I would like to bring up on the red circle, five people." While it is true that Horta agreed that the subject was an amorphous one (and in good conscience he could not have done otherwise), his assertion" but these people, in the past, have been red circled, and they have been noti- fied as they were red circled," was an affimation of the existence for the preferenc and a properly positive refu- tation of Wenham's earlier attempt to cast doubt on their status ("[N]othing, to my knowledge, has ever really been approved on the red circle, there's nothing in writ- ing except for this one letter."). Although Horta made no further effort to urge the re- tention of the red circle, it appears that he appropriately deemed unnecessary any additional exhortation. While it is impossible to faithfully recreate the tone of a multi- party discussion from a bare transcript, the flow of the conversation strongly suggests that the blunt statements by Robert Cassidy, making the preference a precondition to acceptance of the procedures, early on erased any doubt that the red circle would be retained, and made superfluous any extended discussion. Support for this conclusion is found in the fact that the committee, in its decision, did specify that the preference would be pre- served. For these reasons, I reject the complaint allegation that at the June 1977 meeting, Horta, despite his earlier promise, "took a contrary position at said meeting and supported the Employer's proposal to eliminate Red Circle preference." The next allegation is that, after the June meeting, Business Agent Moody "willfully misrepresented [to No- vello] that Red Circle preference had been eliminated by the June 1977 JAC decision." Novello testified that a few days after the meeting he and steward David Tier- ney went to the union hall and spoke to Moody: At that time he told us that we had lost the hearing, the JAC hearing. He said he was outvoted by all the other locals. I asked him if they showed him proof that they had took the vote like we had. And he said, "Well, they were all waving papers." 1" Immediately after Moody had informed the committee that 19 of the 39 drivers had voted against the rules, Horta stated that he and the other 2 agents had received no written grievance about the rules; his re- marks appear to refer to specific complaints or "bugs" arising from the operation of the new procedure. Is I am assuming here, for the sake of argument, that Horta, who had not been Novello's official representative since February, was under a legal obligation to promote the red-circle priority because of statements earlier made by him to Novello, who had filed no specific grievance on the matter TRUCK DRIVERS UNION LOCAL NO. 407 63 On further examination, Novello became much more spe- cific: He said, "We had lost the red circle and we are out- voted by all the other locals, all the business agents of all the other locals." The specificity was lost on cross-examination when, al- though purporting to give the "entire substance of that conversation as far as I can remember it," Novello re- peated a version similar to that originally given, which omitted any express reference to the red circle. Moody testified that Novello came to his office, "asked me what happened in Chicago, and I told him we lost." He explained at the hearing that he had been refer- ring to the entire dispatch procedure issue, "because that was the only thing that I came in contact with. And that is why I went to Chicago in the first place, to protest the dispatch procedure." Moody did not recall that he made any mention of the other union locals outvoting Re- spondent or of the other representatives waving papers around. The question posed is whether Moody "willfully mis- represented" to Novello that the red-circle preference had been jettisoned. Initially, it is not easy to understand why it would be thought that Moody would want to "willfully" conceal the red-circle retention from No- vello. Novello was an old-time union man. The record does not indicate, and General Counsel does not advance the argument, that Moody considered Novello a trouble- maker or harbored any antagonism toward him. Further, it must be recalled that Moody had only become involved with the affairs of Wenham's Cleveland drivers in February. Indeed, Moody was brand new at the job; he had just been appointed as a business agent in January 1977. How many other employees Moody repre- sented between February and May 30, when he was again rotated, does not appear on the record,' 6 but the testimony does show that Respondent represented some 8,400 employees in total. Moody had no reason to know that Novello was interested in the red-circle problem; he testified, in fact that it was not until June hearing that he had even become aware of the existence of the red circle. Although Novello first said that he discussed the red- circle issue with Moody prior to the June hearing ("We talked about it, that is what he was going to the hearing for"), he immediately amended his position on being asked the question again: Q. Yes. We understand that you had a conversa- tion with him after he came back from Chicago. Do you specifically recall ever discussing the red circle question with Moody prior to that conversation? A. No, I don't specifically remember. I believe he knew what he was going down there for. I cannot believe that Moody, who made a good im- pression as a witness, told Novello that, as Novello's middle version had it, the Local "had lost the red circle." There was no earthly reason for Moody to have lied about the matter, especially since, as Moody surely Ie His area was "the south side of Cleveland." knew, the published committee decision clearly would have told a different story. So far as the record shows, Novello was known to Moody not as a red-circle man but rather as one of the three-man committee who had counted the ballots cast by the Local 407 drivers on the question of whether they approved or disapproved the whole set of new dispatch rules. Planly, when Novello asked Moody what had happened at the hearing, Moody reasonably understood the question as addressing the new body of rules rather than the limited red-circle ex- ception. When he told Novello that Respondent had "lost," Moody obviously meant to say that the new rules had been approved. 7 The Board holds: "[I]t is clear that negligent action or nonaction of a union by itself will not be considered to be arbitrary, irrelevant, invidious, or unfair so as to con- stitute a breach of the duty of fair representation viola- tive of the Act. Something more is required. "General Truck Drivers, Chauffeurs and Helpers Union. Local No. 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Great Western Uni- freight System, 209 NLRB 446, 448 (1976). ' The present conduct hardly even rises (or falls) to the arguable level of negligence. Certainly, in the circumstances, Moody was eminently reasonable in believing that Novello was inquiring about the new dispatch rules, rather than the red-circle exception, when the latter asked what had happened at the hearing. Furthermore, considering that Moody was no longer representing the Cleveland em- ployees, that he was busy when Novello came in, and, of course, that he did not know of Novello's red-circle con- nection, Moody cannot be faulted for the fact that it did not occur to him to volunteer news to Novello about the preservation of the exception, a matter which, as far as the evidence shows, he had no reason to believe Novello would be interested in. I conclude, in sum, that the evidence falls far short of establishing the claim that Moody "willfully misrepre- sented" to Novello that the preference had been elimi- nated. There was, at worst, a wholly reasonable misun- derstanding by Moody of the thrust of Novello's inquiry. The complaint next alleges that Respondent violated the Act by failing and refusing "to seek Employer com- pliance with the JAC Red Circle decisions of December 14, 1976, and June 14, 1977, and to preserve Red Circle preference for employees Novello, Linski, Beals, and Sperling." Since I have found that the December 1976 JAC deci- sion did not, in fact, preserve the preference, nothing need be said on that score. Therefore, I address the ques- tion of whether there was any actionable neglect of duty after the June 1977 meeting. The record shows that despite the committee decision at that hearing, the Company took no steps to reinstatute the red-circle practice at Cleveland. Novello, presumably t1 In a December 1977 JAC hearing, at which a grievance subsequent- ly filed by Novello was entertained, as discussed below, Novello gave an account of his conversation with Moody which, like two of the three at this hearing, contained no reference to the red circle. IN In that important case, the assumed negligent failure of a union to timely filed an "admittedly meritorious" grievance about an employee', termination was held not to be a breach of the duty. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD believing that the preference had been lost, also took no action, at least immediately. The question which seems to be presented is why William Cassidy, then assigned by Local 407 to represent the Cleveland Wenham drivers, failed to ensure compliance with the decision, and whether he was at fault for that failure. Cassidy did not testify at the hearing. I do not, howev- er, believe that Respondent was under any obligation to produce Cassidy so that he might offer an explanation for his inaction. Normally, a union can be condemned for inaction only when it has actual or constructive notice that a situation exists which requires it to act. One may justifiably conclude that, when Cassidy left the June meeting, he properly assumed that Wenham would rein- state the preference in accordance with the explicit deci- sion of the committee. Because of the misunderstanding between Novello and Moody, discussed above, neither Novello nor the other red-circle men were aware that they had any reason to complain to Cassidy about the fact that the priority had not been reestablished. I do not believe that, under governing precedent, Cassidy was guilty of an unfair labor practice for failing to monitor Wenham's compliance with the decision, in the absence of any knowledge of, or grievance about, noncompli- ance. In August 1977, Novello filed a char.e with the Board, essentially complaining that the oth( r Teamsters locals had interfered with his rights by vo:ing for the new uniform procedures. As a result of thi. charge, he obtained transcripts of the December 1976 ax;d June 1977 JAC hearings, and he concluded from them that the red circle had not been eliminated. t9 In September, he went to see Horta at the union hall. According to his uncon- tradicted testimony, he told Horta of his interpretation of the transcripts, but Horta replied "that we were eliminat- ed." Novello then asked Horta "to get the transcript so we could go over it together and read them, and he said he didn't have them handy, he didn't have to read them to me, and he didn't have to answer to me." 2 0 This con- versation, as I noted at the hearing, without demurrer by General Counsel, was not embodied in the complaint as a violation. 21 On September 19, 1977, Novello filed a grievance, which he amended on the following day. In the griev- ance as amended, Novello stated that he had discovered on September 16 that the red circle had not been elimi- nated, that Wenham had disregarded the preservation of "9 Actually, in January and again in March, at Novello's request, the Union had secured and shown to him a copy of the December transcript; he read only the page which showed that Horta had raised the banner for the red-circle drivers. 2o Novello was a fairly impressive witness, but, as indicated above with reference to his shifting accounts of his conversation with Moody in June, his partisanship may have affected his recollection at times. Given Novello's statement to Horta that he had just read the transcripts, and Horta's undoubted recollection that the red circle had been expressly saved in the June decision, I find it quite difficult to imagine that Horta would have nonetheless adamanttly insisted that the red-circle men "were eliminated." 21 It would not completely surprise me, however, given Novello's somewhat tendentious approach, if "he didn't have to read them to me and he didn't have to answer to me" might not in fact have been more politely phrased as something like "Bill Cassidy is now your business agent and you should speak to him about the matter." the preference, and that the proper remedy was his resto- ration to the red-circle run and compensation for losses sustained (including loss of revenue from his trailer, which he normally leased to the company, but had not done on the Detroit run).22 The complaint alleges that, in the course of processing this grievance, at meeting of the JAC in December 1977, Horta "failed and refused to prosecute in good faith employee Novello's grievance as to elimination of Red Circle preference." The contractual grievance procedure consists of four stages, at each of which sits a joint committee. The local-level joint committee reached a deadlock on Novel- lo's August and September grievances and they were ad- vanced to the state JAC. At that level, Novello appeared at the October 11 meeting and his grievances were pre- sented by his current business agent, Cassidy. A dead- lock being reached at the state level, the grievances were processed to a meeting of the Central States JAC in Chi- cago in December 1977. Cassidy again represented No- vello at that meeting, and Novello again appeared and spoke at length. The Central States JAC also deadlocked on the grievances, and they were appealed to the nation- al committee which, on March 8, 1978, ordered that "the claim of the Union be denied." The issue raised by the complaint about this process is narrow. As indicated above, it is that Horta, who was present at the third-level meeting in December, and who had not been the business agent representing Novello since early February, "failed and refused to prosecute in good faith" Novello's grievances at the third stage. The complaint does not fault in any way the representation afforded by William Cassidy, who was officially in charge of presenting the grievances at the several steps; at the instant hearing, Novello testified that he had "[n]o complaints against Mr. Cassidy at all." The transcript of the third-level hearing shows that Novello's grievances were considered after there first was had the "review" of the new dispatch procedures which the June 1977 decision had scheduled for the De- cember meeting. It is clear from the transcript that Horta acted as an advocate of the Cleveland drivers' general opposition to the new rules. While the rules themselves were under consideration, Horta introduced Norvello, who recited his version of the events preceding the hear- ing. Horta urged the importance of the issue to the Local 407 members: Mr. Chairman, for the record, Local 407 did pres- ent a petition of all the members, and their names, objecting to the change of the work rules. And this is a very important issue. That come up many times over, and we did present that petition. Decision on the new rules as a whole was held in abeyance, and the committee then turned to Novello's grievances. When those grievances were first being dis- cussed, Horta made a statement in order "to rebut" an assertion made by a company representative. 22 Novello was, as earlier noted, the only red-circle man who filed a grievance. In August, he had also filed a grievance challenging the new rules on a more general theory. TRUCK DRIVERS UNION LOCAL NO. 407 65 Subsequently, however, a conflict arose between Horta and Novello. The discussion about the grievances was a meandering one. At one point, when Novello was being asked about the origin of the red circle, he men- tioned that the preference had been established, with the concurrence of the Company, by a business agent named Merricheck years before. After other discussion, Horta returned to that subject and said that when he "first took over the barn," he had met with Novello and the Com- pany's then-president to ascertain the meaning of the red circle, "[a]nd still, to this day, I have never seen any- thing written by John Merricheck on the red circle." Novello disputed this assertion, and another business agent asked them to avoid "an argument." Saying he wanted to "clarify this," Horta reiterated that he had not seen any dispatch procedure signed by Merricheck, and further stated: I have heard seven different ways the way the red circle operates, and I still, to this day-you can ask all five of them. They have got different versions of the red circle operation, and I don't know what the hell it is. It should be spelled out here that Novello's principal grievance, claiming that Wenham had wrongfully elimi- nated the red circle, had been filed on September 19; in that grievance, after detailing his substantive claim, he asked for compensation for loss of revenue from his trail- er. The following day, on the advice of an agent of the Board, Novello filed another grievance form "[t]o sup- plement last 8 lines of grievance (a) 9/19/77"; in this supplement, he explained why he had bid on the Detroit run, and asked, as an additional remedy, for any loss of wages. For some reason, the two grievances were sepa- rately docketed by the JAC as, respectively, cases 57 and 58. The transcript shows that at the time Horta made the statements about Merricheck and the lack of definition of the red circle, set out above, the committee had already disposed of case 57 by deadlocking on it, and was in the process of discussing case 58, which, as was noted at the time, was "[b]asically the same" grievance already con- sidered and deadlocked. There is somewhat more body to this allegation than the preceding ones, but not enough to make Horta's re- marks an unfair labor practice. I first take note of the principle declared in Truck Drivers, Oil Drivers and Fill- ing Station and Platform Workers Local No. 705, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Ielpers of America (Associated Transport, Inc.), 209 NLRB 292 (1974), review denied 532 F.2d 1169 (7th Cir. 1976). There the Board held: In our view, once Respondent undertook to pres- ent Aaron Kesner's grievance to the Joint Griev- ance Board, it became obligated to represent him fully and fairly. This obligation included the duty to act as advocate for the grievant, which here Heim clearly did not do. To the contrary, by saying that he did not believe Aaron Kesner's claim was valid, Heim underminded Kesner's case before the Joint Grievance Board. In these circumstances, we are constrained to conclude and find, contrary to the Administrative Law Judge, that by this conduct Re- spondent breached its duty of fair representation and restrained and coerced Kesner in the exercise of his Section 7 rights, thereby violating Section 8(b)(1)(A) of the Act. Expanding on the Board's rationale for the foregoing conclusion, the Court of Appeals for the Seventh Cir- cuit, in approving the Board's decision, noted the union's contention that a union "may in good faith refuse to process a member's grievance altogether," but relied on "venerable tort law that purporting to take action where duty is nonexistent creates in itself certain duties." The court went on to say (532 F.2d at 1175): It is one thing for a grievant to attempt to pursue his remedy without assistance and opposed only by one adversary. When that situation is compounded by two opponents, one of whom is supposedly his "own people," the bearing on the likelihood of his success assumes substantial significance. When one's own representative who has been willing to assume that status proclaims a lack of merit, it is indeed likely to be a coup de grace to the claim. In my view, the doctrine of Associated Transport23 does not control the facts of this case. The court pointed out in affirming the Board that it was "not persuaded that the Board has created a per se rule." 532 F.2d at 1174. Consideration of all the circumstances here lead me to conclude that Horta's remarks did not constitute mis- feasance of duty amounting to an unfair labor practice. It was probably bad form for Horta to engage in an argument with Novello about whether former Business Agent Merricheck had ever signed a memorandum about the red circle, but that was a technical matter of little consequence. 24 Horta's described confusion about "the way the red circle operates," concluding with his remark, "I don't know what the hell it is," needs, I think, to be considered in context. For one thing it was probably an honest, and not un- justifiable, expression of his views. For another Business Agent Cassidy had already, in connection with case 57, made a lengthy argument on Novello's behalf and had presented Company documents acknowledging the exist- ence of the preference. When the committee caucused on case 57, there certainly was no real question before it as to whether the red-circle priority had indeed existed; 25 nonetheless, the committee had deadlocked on the griev- ance. That result having been already reached at the time the subsequent discussion of case 58 wandered into the subject of the origin of the preference, it seems un- derstandable that Horta might have assumed that since the committee had not found in Novello's favor even 23 The premises of this interesting decision, and its implications, are probably worthy of exploration in a law review note. 24 The transcript of the JAC hearing shows that Novello subsequently conceded that he had been mistaken on this point, having intended to refer to a business agent named "Madusky" (probably "Majewski"). 2n In fact, the same committee had ordered the retention of the prefer- ence in its June 1977 decision. And, prior to the caucus on case 57, Com- pany Representative Fuller had stated, "As to the red-circle, we did agree that there was a red-circle that existed. We had no way to define it It existed There were four people on it." 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when there had been no dispute, in case 57, about the prior existence of the preference, his brief outburst about the lack of definition of the preference could do Novello no harm. Indeed, Horta had made much the same sort of statement at the June meeting, but it had obviously not affected the committee, since, at that meeting, the prefer- ence had been expressly maintained. There was no indication at all in the discussion of case 58 which might have suggested to Horta that the com- mittee would consider overruling the position it had just taken as to case 57.28 During the discussion of case 57, Horta had said nothing to counter Cassidy's contention that "Mr. Novello and the other red circle men should be placed back on their red circle runs, and that the claim of the union be upheld in regard to the monetary issue," or contrary to Cassidy's related arguments about the priority.2 7 Further, Horta said nothing to contradict or detract from Novello's statement, made during the discussion of case 57, that the preference had been in the past approved "in writing here signed by the president with the business agent there," although that was the narrow are of contention to which he subsequently ad- verted in the discussion which followed the vote on case 57. Thus, in the circumstances, I do not believe that Horta's contained questioning of the boundaries (not the existence) of the preference constituted a failure by Re- spondent to prosecute the grievance in good faith. Cas- sidy had already done an estimable job of representing Novello; the merits of the grievance had, to all intents and purposes, already been passed upon at the time that Horta spoke out; and his casual candor about his own confusion with respect to the contours of the preference must have seemed to him to be of little moment in the given situation.2 8 In the entire context, Horta's remarks appear to be an inadequate basis for concluding that Respondent thereby breached its duty of fair representation. "[P]oor judg- r. ent" does not suffice to establish a breach of duty, King Soopers, Inc., 222 NLRB 1011, 1019 (1976). Horta's con- duct pales by comparison with that described in Team- .sters, Chauffeurs, Warehousemen and Helpers Local Union ,No. 542, International Brotherhood of Teamsters, Chauf- "2 When case 57 was being deliberated, Novello had agreed with a business agent for Local 910 that "the decision handed down on this will settle all three cases" and that they were "all conjuncted into one." '7 Cassidy even made the argument, repeated here by General Coun- sel. but with which I disagree, that his "understanding" from the tran- script of the December 1976 JAC hearing was that "the red circle men of 417 should have remained in effect " 2 Applying the court's test, Novello did not alone face "two oppo- nents,' since Cassidy had staunchly advocated his case. Further, Horta was niot Novell"'s "own representative who has been willing to assume that status." Finally, Horta did not "proclaim a lack of merit" in Novel- lo's claim that ihe preference should have been restored after the June meeting; he only expressed his own confusion about the meets and bounds of the preference, and only after the committee had already dead- locked on he merits of the claim feurs, Warehousemen and Helpers of America (Golden Hill Convalescent Hospital), 223 NLRB 533 (1976), where the panel (Member Jenkins dissenting) tound no violation de- spite the fact that the attorney for the union cross-exam- ined witnesses independently called by the grievants and also refused to adduce certain material evidence which would have reflected adversely on the union. The Board's appraisal of the efforts of the union in Truck Drivers, Helpers, Taxicab Drivers, Garage Employees and Airport Employees Local Union No. 355, affiliated with In- ternational Brotherhood of Teamsters, Chauffeur, , Ware- housemen and Helpers of America (Monarch Institutional Foods), 229 NLRB 1319, 1321 (1977), may be, at worst, an apt description of the Union's performance here: "Thus, the Respondent's effort on [Novello's] behalf- though perhaps not optimal-rose above a perfunctory and unjustified treatment of his problem and thereby comported with the duty of fair representation." I might add that there is a substantial basis for believ- ing that the final resolution of Novello's grievance was erroneous. It seems clear that after the June 1977 JAC decision, the Company, pursuant to the committee's man- date, should have restored the red-circle status of the four men, at least until the JAC abolished that preference in December.29 That ultimate question, however, does not fall within the jurisdiction of the Board. Accordingly, I conclude that the complaint, in its en- tirety, should be dismissed. CONCLUSIONS OF LAW 1. Wenham Transportation, Inc., is an employer en- gaged in commerce within the meaning of the Act. 2. The Respondent, Truck Drivers Union Local No. 407, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of the Act. 3. Respondent has not violated the Act in any respect alleged in the complaint. Upon the foregoing findings of fact and conclusions of law, I issue the following recommended: ORDER3 0 The complaint is hereby dismissed. a9 The only lingering doubt relates to the fact that Novello had suc- cessfully bid on the Detroit run. The evidence, sketchy though it is, sug- gests the possibility that this may have been considered a bar to his resto- ration to red-circle status. '0 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.