Brotherhood of Teamsters, Local 70

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Teamsters & Auto Truck Drivers Union, Local 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America and Sam-Jo, Inc., d/b/a Smiser Freight Service. Case 20-CB-2492 June 5, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 20, 1972, Trial Examiner Herman Corenman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, as well as an answering brief, and Respondent filed a brief in reply to the cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Brotherhood of Teamsters & Auto Truck Drivers, Local 70, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and repre- sentatives, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERMAN CORENMAN, Trial Examiner: Upon a charge filed and served on June 10, 1971, and an amended charge filed on August 6, 1971, and served on August 9, 1971, by Sam-Jo, Inc., d/b/a Smiser Freight Service, hereinafter referred to as Smiser Freight or the Charging Party, the General Counsel of the National Labor Relations Board, hereinafter referred to as the General Counsel and the Board respectively, by the Acting Regional Director for Region 20 (San Francisco, California) issued its complaint dated August 11, 1971, against Brotherhood of Teamsters & Auto Truck Drivers Union, Local 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Respondent or Union. The complaint alleged that since on or about January 8, 1971, Respondent caused and/or attempted to cause Smiser Freight to discriminate against its employee Roy J. Anderson, thereby engaging in unfair labor practices affecting commerce within the meaning of Sections 8(b)(2) and (1)(A) and 2(6) and (7) of the Act. Respondent duly filed its answer admitting certain allegations of the complaint and denying the commission of any unfair labor practices. Pursuant to notice, a hearing hereon was held before this Trial Examiner at San Francisco, California, on November 11, 1971. Counsel for the General Counsel of the Board and Respondent by counsel appeared at the hearing. The parties were afforded full opportunity to be heard, introduce evidence, examine and cross-examine witnesses, argue orally, and submit briefs. Briefs were received from the General Counsel and the Respondent. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF SMISER FREIGHT The complaint alleged, the answer admitted, and I therefore find that Smiser Freight, a California corporation with places of business in Oakland, Los Angeles, Bakers- field, Fresno, Sacramento, and San Jose, California, is a contract motor carrier and a common motor career engaged in the business of hauling freight by truck, and during the past year in the course and conduct of its business operations sold services valued in excess of $50,000 to customers located outside California and received goods and services valued in excess of $50,000 directly from sources located outside California. Accord- ingly, I find that Smiser Freight is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE RESPONDENT The Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Roy J. Anderson has been a police officer employed by the city of Oakland, California, for 15 years. He has been a police sergeant the past 5 years. He has been employed as a regular part-time truckdriver for Smiser Freight Service since September 1969, in addition to his regular full-time employment as a police officer. In order to engage in outside employment, Anderson, like all police officers, was required to secure a work permit from the chief of police authorizing such employment. Anderson did in fact secure work permits, renewed every 6 months, authorizing his employment by Smiser Freight. The Oakland Police Department by printed general order has specified certain 197 NLRB No. 46 BROTHERHOOD OF TEAMSTERS , LOCAL 70 "Requirements of Outside Employment." Included in the requirements, inter alia, are requirements that "members shall not work: In any employment where the labor supply is adequate" or "In excess of sixteen (16) hours per week under the terms of the permit, except as may be specifically authorized and designated on the permit." ,On January 8, 1971, Anderson was working at Smiser Freight on authority of a permit issued by the chief of police under date of October 2, 1970, and expiring April 12, 1971. On November 20, 1970, in Case 20-RC-9716, a petition for certification of representation was filed by the Respondent Union with Region 20 of the Board for a unit of truckdrivers and dockmen employed by Smiser Freight at its Oakland terminal. The election took place between 8 and 9 a.m. on January 8, 1971, at Smiser Freight's premises. Six votes were cast for the Respondent Union, three against, and there were five challenged ballots. The employee who acted as union observer at the election challenged Anderson's ballot on the instructions of Respondent's business agent, Robert Windsor. Mr. Wind- sor testified that he instructed the challenge to Anderson's ballot on the basis that Anderson was no longer an employee of Smiser Freight. Windsor testified that he reached this conclusion on the basis of a conversation with Respondent Union's president, James Muniz, who had informed him that the chief of police had revoked Anderson's permit to work at Smiser Freight.' B. The Events Preceding Anderson's Relinquishment of His Employment at Smiser Freight During the Union's organizational campaign, it came to the attention of Union Representatives Muniz and Wind- sor that Anderson was a police officer of the City of Oakland who was "moonlighting" at Smiser Freight. It is reasonable to conclude, in view of the fact that Anderson was not a union member and had not signed a union authorization or pledge card, and in view of the further fact that the Union challenged Anderson's ballot at the Board election, that the Union believed he would cast a negative vote in the Board-conducted election on January 8, 1971. Union President Muniz concedes by his testimony that he contacted Oakland Chief of Police Gaines a day or two before the election to protest Anderson's employment at Smiser Freight. In that conversation, Muniz testifies he told Gaines that the Union was organizing the employees at Smiser Freight and that the Union had a policy against its members holding city jobs and also working in the trucking industry. Muniz testified it has long been the union policy against "dual employment or moonlighting." Muniz testified that in a second conversation with Chief Gaines, a day or two following his first phone conversa- tion, Gaines told him that Anderson's permit, "he was going to-or it had been revoked." i In his report on objections and challenged ballots dated August 17, 1971, the Regional Director at San Francisco overruled the Union's challenge to Anderson's ballot, finding that Anderson was an employee of Smiser Freight on the eligibility date and also at the time of the election on January 8, 1971 The Regional Director found that Anderson's work permit was revoked at approximately 9 30 am on January 8, 1971, after the 263 Chief Gaines testified that he received a phone call from a Teamster representative on January 8, 1971. Gaines testified his recollection of the phone conversation as follows: "There was a labor-management dispute in regard to the Company for which Sergeant Anderson had been issued this permit-and Sgt. Anderson's employment there was depriving union persons of employment." Chief Gaines testified he replied as follows: "The substance of the conversation, as I recall, was in view of our work permit procedures, which, as I recall, I related one provision for not issuing the permit and consequently for revoking, would be if the employment of the policeman was depriving somebody of work, the permit would be revoked." Chief Gaines also testified that in this same conversation with the Teamster representative, he "ex- pressed concern about a member of the police department being employed at a place where a management-union dispute was in effect." Chief Gaines told the Teamster representative, who I find to be Mr. Muniz, that he "would revoke the permit." Reiterating his reasons for revoking Anderson's work permit, Chief Gaines testified: "It [Anderson's employment at Smiser Freight] was depriving union persons of employment and the second considera- tion, of course, was that there was a dispute going on, a National Labor Relations dispute. That was the influence, those two reasons." Testifying further, Gaines said that the principal basis for withdrawing Anderson's permit was the police department regulation requiring that "members ,[of the police department] shall not work . . . in any employment where the labor supply is adequate." Chief Gaines testified further that the revocation of Anderson's permit was totally within his own discretion, and there were no threats made by the Teamster representative. He also testified, and I find, that he did not contact Smiser Freight or communicate to them his action on revoking Anderson's permit. Mr. Anderson testified that after voting in the Board election on the morning of January 8, he reported for work with the police department at 8:30 a.m. at which time he was notified to contact Chief Gaines by phone, which he did from his police callbox. Anderson's testimonial version of his phone conversation with Chief Gaines is as follows: "Chief Gaines advised me that two union representatives from Local 70 had present- ed themselves at his office and raised objection to my employment at Smiser Freight on the basis I was precluding employment of union personnel. . . . I indicat- ed to the Chief that I thought the reason for the presentation at that time was due to the fact of the Union election having taken place in which I voted that morning. After some discussion, the Chief advised me that due to the department's position on labor-management disputes, he would rather the department not be placed in the. position of being a pawn in the labor-management disagreement and he was going to revoke my permit." It is undisputed that the work permit was then and there revoked in this election, following which he relinquished his employment with Smiser Freight. Under date of October 18, 1971, the Board, among other things, sustained the Regional Director 's action overruling the Union 's challenge to Anderson's ballot A revised tally of ballots was issued by the Regional Director on October 26, 1971, certifying that six ballots were cast for the Union and six against. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD phone conversation, and Chief Gaines made a written memorandum of the revocation that same morning of January 8. Following this phone conversation with Chief Gaines, Anderson contacted Smiser Freight and informed the manager that his work permit had been revoked and he therefore would not be able to come to work that afternoon.2 - C. Analysis and Conclusionary Findings It is clear from the record that at least one of the objects of the union representatives was to prevent Anderson's ballot from being cast or counted in the January 8 Board election. This is established by Muniz's conversation with Gaines protesting the employment of Anderson at Smiser Freight, the challenge to his ballot, and the fact that Anderson did not sign a union authorization or pledge card during the union organizational campaign which it is fair to conclude had been conducted for several weeks prior to the January 8, 1971 election date. Notwithstanding Muniz's testimony that the Union has a general policy against dual employment or "moonlighting" and that some of its contracts so provide, it must be noted that in the instant situation the Union did not represent Smiser Freight employees and had no contract with that company. I find that although Muniz's protest to Chief Gaines may have been in part motivated by a desire to prevent moonlighting, its prime thrust was to cancel out a probable negative vote which would be cast by Anderson. Indeed, Muniz conceded by his testimony that he told Chief Gaines that the Union was organizing the employees at Smiser Freight. I further find, in accordance with Chief Gaines' testimony, that Gaines' decision to revoke Anderson's permit was reached without any threat from Muniz and was based on three considerations: (1) the police depart- ment regulation requiring that police officers shall not work in any employment where the labor supply is adequate, (2) Anderson's employment was depriving a union person of employment, and (3) there existed a labor dispute at Smiser Freight in which the police department did not want to be in any manner involved. It is undisputed, and I find, that upon revocation of his permit on January 8, 1971, Anderson quit his part-time job at Smiser Freight rather than risk discipline or loss of valuable job rights as a police sergeant with the Oakland Police Department. The General Counsel's complaint at paragraph VI alleges that "Since on or about January 8, 1971, and continuing to date, Respondent has caused and/or attempted to cause Smiser to discriminate against its employee Roy J. Anderson in violation of Section 8(a)(3) of the Act. Paragraph VII of the complaint alleges further that the conduct described in paragraph VI constitutes an 2 Anderson's work permit was reinstated by Chief Gaines on September 27, 1971, following a letter from Smiser Freight as follows We need and are going to hire a part-time employee, here at our Oakland-San Francisco Terminal, at 4310 Jensen Street in Oakland We have asked Sergeant Jack Anderson to fill this part time position Our reasons for wanting Jack are that he has worked for us before and did an outstandingjob So, as you can see with his past experience and his excellent ability, unfair labor practice within the meaning of Section 8(b)(2) and (1)(A) of the Act. There is no evidence in the record that the Union attempted to cause or caused Smiser Freight to discrimi- nate against Anderson. It is equally clear that there is a total absence of any evidence that Smiser Freight did in fact discriminate against Anderson. Anderson voluntarily quit his employment at Snuser in preference to running the risk of violating police department regulations by working in outside employment without a permit. It may be urged that the allegations of the complaint should be liberally construed, and if there is substantial evidence to support a finding of any violation of Section 8(b)(1)(A) or (2), especially where the matter has been fully litigated, the pleadings should not be technically construed to defeat the finding of such violation. I have concluded that the issues have been fully litigated so as to justify determining whether Section 8(b)(2) or 8(b)(1)(A) of the Act have in any respect been violated by the events which transpired leading to Anderson's decision to quit his part- time employment at Smiser Freight. Champion Powermotive Machinery Co., 152 NLRB 300; Howard Campbell Co., 159 NLRB 1525; Heights Funeral Home, 159 NLRB 723; Famco, Inc., 158 NLRB 111; Fashion Fair, 157 NLRB 1645; Springfield Garment Mfg. Co., 152 NLRB 1043; Randolph Rubber Co., 152 NLRB 496. The evidence clearly establishes that Mr. Muniz attempt- ed to cause and did cause Chief Gaines to discriminate with respect to Anderson's outside employment. But his conduct may not be held to violate Section 8(b)(2) of the Act. Section 8(b)(2) of the Act provides, in pertinent part, that "It shall be an unfair labor practice for a labor organization or its agent to cause or attempt to cause an employer (emphasis supplied) to discriminate against an employee in violation of subsection (a)(3)." But it is pointed out that the Oakland Police Department is not an "employer" within the definition of Section 2(2) of the Act which provides in pertinent part that "the term employer ... shall not include . . . any State or political subdivision thereof...." It is clear that the Oakland Police Depart- ment is an integral part of a political subdivision of the State of California. I have concluded, however, and I find, that the conduct of Union Representative Muniz violated Section 8(b)(1)(A) of the Act, in that it restrained and coerced employees in the exercise of their Section 7 rights to refrain from union activity or assistance to the Union. As I have pointed out earlier in this decision, Anderson was not a member of the Union and he did not sign a union authorization or pledge card. Muniz, in protesting to Chief Gaines concerning Anderson's employment at Smiser, complained that Anderson was depriving a union man of employment and that there was a management-union dispute at Smiser Freight. This conduct by Muniz, calculated to eliminate makes for good relationship, and job fullfillment [sic] We feel that this would in no way interfere with his regular duties at the Oakland Police Department. Smiser Freight Service is presently a non -union Company, and we do not foresee a change in this status in the near future Thank you for your consideration in this matter, hoping that you will agree to this parttime employment by Jack Anderson. BROTHERHOOD OF TEAMSTERS , LOCAL 70 Anderson's employment, served as a warning not only to employee Anderson but to all other Sn}iser employees that nonadherence to the Union would result in action by the Union adverse to or threatening the employee 's job tenure. Compare Radio Officers Union v. N.LR.B., 347 U.S. 17. The Board has frequently held that coercion and restraint in violation of Section 8(b)(1)(A) or its counter- part Section 8(a)(1), practiced by a labor organization or an employer which results in job loss by an employee, entitles that employee to the same remedy of reinstatement and backpay as would be accorded an employee unlawful- ly discriminated against in violation of Section 8(b)(2) or (a)(3).3 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Smiser Freight described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, it will be recommended that it be ordered to cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent's unlawful conduct caused Roy J. Anderson's work permit to be revoked, I shall recommend that the Respondent be ordered to make Roy J. Anderson whole for any loss of earnings he may have sustained at Smiser Freight as a result of Respondent's unlawful conduct. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Sam-Jo, Inc., d/b/a Smiser Freight Service is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Brotherhood of Teamsters & Auto Truck Drivers Union, Local 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent herein, is a labor organization within the meaning of Section 2(5) of the Act. 3. By attempting to cause and causing Roy J. Ander- son's work permit to be revoked, Respondent has coerced 3 See for example Electro Motive Mfg Co, Inc, 158 NLRB 534; Dal-Tex Optical Company, Inc, 131 NLRB 715, 731, enfd 310 F 2d 58 (C A 5); Better Monkey Grip Company, 115 NLRB 1170, enfd . 243 F.2d 836 (C A 5), Bricklayers, Masons and Plasterers International Local Union No 18 of Missouri (Ferguson Tile and Marble Company), 151 NLRB 160, 164, Theo Hamm Brewing Company, 151 NLRB 397, 411; Los Angeles County District Council of Carpenters (Robt E L Parker Co), 123 NLRB 342, Miranda Fuel Co, 125 NLRB 454, United Brotherhood of Carpenters (Endicott Church Furniture Co), 125 NLRB 853 4 In the event no exceptions are filed as provided by Sec. 102.46 of the 265 and restrained Roy J. Anderson and other employees in the exercise of certain rights guaranteed to them by Section 7 of the Act, to refrain from joining or assisting the Respondent; and thereby the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not engaged in other unfair labor practices as alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I, hereby, issue the following recommended: 4 ORDER Respondent, Brotherhood of Teamsters & Auto Truck Drivers, Local 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Coercing and restraining employees in the exercise of rights guaranteed by Section 7 of the Act to refrain from joining the Respondent, or from in any manner assisting it, by conduct of the Respondent in seeking to have work permits issued.by the Oakland Police Department to police officers revoked because such police officer exercised his right to not join or assist the Respondent. (b) In any like or related manner restraining or coercing employees in the exercise of their tights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act. (a) Make whole Roy J. Anderson for any loss of pay he may have suffered as a result of his loss of employment at Smiser Freight Service during the period January 8 to September 27, 1971, in the manner set forth in "The Remedy" section herein. (b) Notify the Oakland Police Department and Smiser Freight Service, in writing, that the Respondent has no objection to Roy J. Anderson's employment by Smiser Freight Service. (c) Post at its business offices and meeting halls copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 days thereafter, in conspicuous places, including all places where notices to members of Respondent are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 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 8 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Furnish the Regional Director for Region 20 with signed copies of the aforesaid notice, in the number designated by the Regional Director, for posting by Smiser Freight Service, if it is willing, at places where it customarily posts notices to employees. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith .6 6 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "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 " 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 restrain and coerce employees in the exercise of their rights under Section 7 of the Act, to refrain from membership or assistance to Brotherhood of Teamsters & Auto Truck Drivers, Local 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, by causing or attempting to cause the Oakland Police Department or any other governmental, state, county, city or munici- pal agency to revoke the work pernut of any employee of Smiser Freight Service because that employee refused to join, support, or assist the aforesaid labor organization. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. We have no objection to Roy J. Anderson's employment by Smiser Freight Service. WE WILL make Roy J. Anderson whole for any loss of pay he suffered at Smiser Freight Service from January 8, 1971 to September 27, 1971, due to the revocation of his work permit by the Oakland Police Department. Dated By BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS, LOCAL 70, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) (Representative) (Title) This is fan official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 13018 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, Califor- nia 94102, Telephone 415-556-0335.