Teamsters Local 792 (Johnson Bros.)

TEAMSTERS LOCAL 792 (JOHNSON BROS.) Local 792, Allied Sales Drivers, Ambulance, Beer Brewery, Grain Elevator, Retail Liquor, Livery, Malt House, Spring Water, Soft Drink, Taxi- cab, Vending Drivers, Helpers, Inside Employ- ees and General Workers Union, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America and Bryan Jamison, Attorney, for and on behalf of Johnson ' Bros. Wholesale Liquor Co. Case 18-CB-1590 26 February 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 8 October 1986 Administrative Law Judge Marvin Roth issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the Charging Party filed ' an answering brief, and the General Counsel filed a Statement of Cross-Ex- ceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,1 and conclusions and to adopt the recommended Order2 as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below Wand orders that the Re- spondent, Local 792, Allied Sales Drivers, Ambu- lance, Beer Brewery, Grain Elevator, Retail Liquor, Livery, Malt House, Spring Water, Soft Drink, Taxicab, Vending Drivers, Helpers, Inside Employees and General Workers Union, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(b). ' The judge inadvertently used the word "Company" instead of "Union" in sec. III,B, L. 49 We correct this error. 8 The General Counsel has requested that the Order include a visita- torial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondent, under the Federal Rules of Civil Proce- dure under the supervision of the United States court of appeals enforc- ing this Order. Under the circumstances of this case, we find it unneces- sary to include such a clause. Accordingly, we deny the General Coun- sel's request, 8 We shall modify the judge's recommended Order and notice to con- tain the Board's standard language for narrow cease-and-desist orders against unions 111 "(b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section T of the Act." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS 130ARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered' us to post and abide by this notice. WE WILL NOT impose fines or other discipline on employees who crossed or worked behind our picket line during the strike against Johnson Bros., Wholesale. Liquor Co. in December 11985, in con- travention of the strike-contract settlement agree- ment between the parties. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind the fines imposed on Harold Edelman, Melvin Emerson, Larry DeSmith, ]Doug- las Forester, Donald Johnson, James Reiter, and Richard Schneider, and remove all records of the disciplinary actions against them, and notify each of them in writing that this has been done. WE WILL refund any such fines or part thereof that has been paid, with interest. LOCAL 792, ALLIED SALES DRIVERS, AMBULANCE, BEER BREWERY, GRAIN ELEVATOR, RETAIL LIQUOR, LIVERY, MALT HOUSE, SPRING WATER, SOFT DRINK, TAXICAB, VENDING DRIVERS,, HELPERS , INSIDE EMPLOYEES AND GENERAL WORKERS UNION, AFFILIATED WITH INTERNA- TIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA Robert V. Johnson, Esq., for the General Counsel. Richard Williams, Esq., of Minneapolis, Minnesota, for the Respondent. Steven C. Miller, Esq., of Minneapolis, Minnesota, for the Charging Party". DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge. This case was heard at Minneapolis, Minnesota, on 13 August 283 NLRB No. 20 112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1986.-1 The charge was filed- on I 1 March by Bryan Ja- mison, attorney, for and on behalf of Johnson Bros. Wholesale Liquor Co. (Company). The complaint, which issued on 21 July, alleges that Local 792, Allied Sales Drivers, Ambulance, Beer Brewery, Grain Elevator, Retail Liquor, Livery, Malt House, Spring Water, Soft Drink, Taxicab, Vending Drivers, Helpers, Inside Em- ployees and General Workers Union, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Union or Re- spondent) violated Section 8(b)(1)(A) of the National Labor Relations Act. The gravamen of the complaint is that the Union allegedly imposed court collectible fines on seven company employees who crossed the Union's picket line and continued to work during an economic strike, notwithstanding that the Company and the Union entered into a strike settlement agreement that allegedly provided in pertinent part that the Union would not impose internal discipline on its members as a' result of their conduct during the strike. The Union's answer denies the commission of the alleged unfair labor prac- tices. All parties were afforded full opportunity to par- ticipate, to present' relevant evidence, to argue orally, and to file briefs. On the entire record in this case2 and from my obser- vation of the demeanor of the witnesses, and having con- sidered the arguments of counsel and the briefs submitted by the General Counsel, the Company, and the Union, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company, a Minnesota corporation with an office and place of business in St. Paul, Minnesota, is engaged in the wholesale and distribution of liquor and related products. In the operation of its business, the Company annually receives at its St. Paul facility goods and mate- rials valued in excess of $50,000 directly from points out- side of Minnesota, and annually ships from its St. Paul facility goods and materials valued in excess of $50,000 directly to points outside of Minnesota. I find that the Company is' an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE RESPONDENT LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Union is the collective-bargaining- representative of a unit of the Company's employees, including drivers and warehouse personnel, at the St. Paul facility. On Thursday, 19 December, the Union commenced a lawful strike and picketing at the St. Paul facility in support of ' All dates herein are for the period from I December 1985 through 30 November 1986 unless otherwise indicated 2 Errors in the official transcript of proceedings have been noted and corrected its efforts to secure a successor collective-bargaining contract. The strike lasted throughout 3 workdays (19, 20, and 21 December). On Sunday, 22, December, the Company and the Union reached agreement on the terms of a successor contract. In the interim, seven unit em- ployees (Harold Edelman, Melvin Emerson, Larry DeS- mith, Douglas Forester, Donald Johnson, James Reiter and Richard Schneider), all union members, crossed the Union's picket line and continued to work3 On Sunday, 22 December, the Company and the Union met in a lengthy session at the offices of the Fed- eral Mediation and Conciliation Service (FMC), includ- ing both formal negotiations and so-called off-the-record or side-bar discussions, which culminated in agreement on the terms of a new contract. Company Attorney Martin Garden prepared a memorandum of agreement that was signed by representatives of both parties. The agreement specifically provided in item six of seven listed items in the memorandum: "Contract language as agreed to-and both parties agree that there will be no retaliation against anyone." Donald Gerdesmeier, president and business agent of Teamsters Local 503, was a member of the Union's ne- gotiating team, and actively participated in the negotia- tions. Gerdesmeier had recently negotiated a contract be- tween his own local and another wholesale liquor firm, and the president of the area Teamsters' Joint Council requested him to participate in the Union's negotiations.4 Gerdesmeier testified concerning an off-the-record or side-bar discussion between himself, Company Attorney Garden, and Federal Mediator Earl Smith, at which time they reviewed Garden's draft of the proposed memoran- dum of agreement. Attorney Bryan Jamison, Garden's associate, was also present. Gerdesmeier testified in sum as follows: He objected to Jamison's presence at what he considered to be an off-the-record conversation. Garden said that Jamison was present to take notes, whereupon Gerdesmeier replied that if he were quoted, he 'would stick the notes up Garden's nose. They reviewed the lan- guage of the proposed memorandum. After reaching agreement on wages, they discussed item 6. Garden said he was concerned that the Union would,pursue pending unfair labor practice charges, and was also concerned about sabotage by returning strikers'and "things of a get even nature." Gerdesmeier said that he was concerned about discipline of returning strikers for picket line activ- ity, and possible reprisals against them, and that he would talk to the Union about the matter. Gerdesmeier went to speak to Union Secretary-Treasurer Bryant, and then returned to his conversation with Garden and Smith, telling them that the Union concurred in the memorandum, and that they could sign the document.5 a It is immaterial how the employees managed to cross the picket line I'assume, for the purpose of this case, that as contended by the Union, they hid in the back of a van that was driven across the picket line by a management employee. 4 In its brief, the Union refers to Gerdesmeier as a "mediator." How- ever, in its answer the Union admitted that Gerdesmeier was an interme- diary "on behalf of" the Union, and that he personally handled negotia- tions of the clause at issue in this case. 5' I excluded ' testimony by Gerdesmeier concerning his conversation with Bryant. TEAMSTERS LOCAL 792 (JOHNSON BROS.) There was no further discussion about the "no retalia- tion" clause. Gerdesmeier was vague and equivocal about some aspects of the conversation. He testified that Garden gave specific examples of sabotage, such as breakage, but then qualified his testimony by saying that Garden said "words to that effect." Gerdesmeier testified that he could not recall whether Garden said there would not be any "shit" by either side, or whether the mediator said that the same went for the Union. Garden, who was present as a General Counsel witness, testified that prior to the conversation on 22 December, he ex- pressed concern to Gerdesmeier that Secretary -Treasurer Bryant would be vengeful because seven of his members crossed the picket line, and that he could not agree to a final settlement unless there was a clear understanding that there would be no retaliation. Garden further testi- fied that when they reviewed the proposed memorandum of agreement, Gerdesmeier did not object to the lan- guage of item 6. Garden testified that he said in effect that "we didn't want any shit from either party," adding that the Company would not be able to fire any strikers, that mediator Smith said "the union likewise," and that Gerdesmeier made no comment about the no-retaliation clause. Garden testified that at a later date, he tele- phoned Gerdesmeier and complained that the Union was disciplining the employees. Gerdesmeier stated, and Garden agreed, that there was no discussion at the 22 December meeting about whether the no-retaliation clause limited the Union's ability to apply internal disci- pline to its members . However, Garden asserted that "we had a broad no retaliation agreement " and that this meant there would be no fines against anybody. Gerdes- meier disagreed with this interpretation. Attorney Ja- mison, who was presented as a charging party , witness, substantially corroborated Garden's testimony concern- ing the 22 December meeting. Jamison testified that the first time the parties had a side -bar meeting, Gerdesmeier questioned his presence, and told Garden that "if you ever try to use those notes, I'm going to shove them up your ass." However, Gerdesmeier did not again refer to Jamison's presence at such meetings . Jamison testified that when they discussed the proposed memorandum, Garden explained: "I've added a no retaliation clause. There is not going to be any shit going from either way. The Company may try to fire some strikers, they can't." Mediator Smith then commented, "The same goes for the Union." There was no further discussion of item 6. Jamison specifically testified that there was no mention of the pending charges or acts of sabotage . Jamison's tes- timony was corroborated by his notes at the meeting, which were presented in evidence by the Union. I credit Garden and Jamison.6 As indicated, Gerdes- meier's testimony was vague and equivocal in important 6 Their testimony, like that of Gerdesmeter, may properly be consid- ered as evidence in this case. There is no Board policy that precludes an attorney from testifying in a Board proceeding concerning matters of which he has personal knowledge Indeed, neither Garden nor Jamison participated as trial counsel in this case , although Board policy does not require such abstention Operating Engineers Local 9 (Fountain Sand), 210 NLRB 129 fn. 1 (1974) There is also no Board policy that precludes tes- timony concerning so-called off-the-record conversations during contract negotiations, or which precludes testimony by persons who heard such conversations, regardless of whether their presence was accepted or even 113 respects. Gerdesmeier's version of the 22 December con- versation was also improbable in one significant respect. If Garden, an experienced attorney, were concerned about the continuing pendency of unfair labor practice charges, then it is probable that he would have expressly provided in the memorandum of agreement that the Union request withdrawal of such charges. It is also probable that Garden would have conditioned the entire agreement on approval of such withdrawal by the Board's Regional Director. However, he did not request withdrawal of the pending charges (which concerned statements by the Company to its employees in corre- spondence and meetings) until 14 January, some 3 weeks after the parties reached agreement on a contract. There- fore, it is evident that at least in the Union 's view, with- drawal of the charges was unrelated to its obligations under item 6 of the memorandum of agreement. It is undisputed that by identicalletters dated 25 Feb- ruary, the Union by its president, Steven Lucht, notified six of the seven employees who crossed the picket line (all but Larry DeSmith) as follows: On January 10, 1986, you were sent notice of a hearing to be held before the Executive Board on Wednesday, January 22, 1986. This hearing was to determine whether or not disciplinary action should be taken against you for crossing the picket lines and working during the recent strike at Johnson Bros. Liquors. The hearing was held and you, did not appear. The Executive Board hearing committee, chaired by Vice-President Anthony Tiemann, examined the evidence and reached the following conclusions: On the basis of an investigation of the facts pre- sented and signed affidavits submitted, you worked while a strike was in progress at your employers [sic] place of business. The Board assessed a fine against you in the amount of $1400.00. The Board however determined that one-half of the fine would be forgiven, therefore, you owe your union Local 792 the amount of $700.00 for working while a strike was in progress. DeSmith appeared at the Union's executive board hear- ing, was assessed a fine in the amount of $1200 , of which one-half was forgiven, and he paid the remaining $600. The other employees did not pay their fines. None of the fines were rescinded. Douglas Forester filed an appeal with Teamsters Joint Counsel No. 32, but received no reply. The Union admits that it imposed the fines be- cause the employees crossed its picket line and worked for the Company while its strike was in progress. B. Concluding Findings I find that the Union negotiated and executed an agreement with the Company whereby it agreed that it would not impose internal discipline on its members as a result of their conduct during the strike. Therefore, the known by the other participants Indeed, it was the Union that sought to introduce testimony concerning the conversation on 22 December, over the objection of the General Counsel and the Company 114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Company violated Section 8(b)(1)(A) by imposing such discipline. Office Employees Local ' 129, 267 NLRB ' 1017 (1983); Hospital Workers Local 250 (Associated Hospitals), 254 NLRB 834 (1981); Hospital Workers -Local 250 (Da- mero'n Hospital), `248 NLRB 1390 (1980); Retail Clerks Local 1364 (Food Employers), 240 NLRB 1127 (1979); Stationary Engineers Local 39 (San Jose Hospital), 240 NLRB 1122 (1979). The first two decisions cited above are particularly in point. In Associated Hospitals, which involved an arbitration decision in settlement of a strike, the administrative law judge specifically held that the phrase "no retaliation" applied to union discipline of its members for their conduct during the strike. Office Em- ployees involved an oral agreement that provided that there would be "no reprisals by either side against strik- ers or nonstrikers." The parties never expressly referred to internal union charges. Nevertheless, the Board, af- firmed the 'administrative law judge's determination that in the context of a strike settlement agreement, the quoted language applied to such charges. The terms "re- taliation" and "reprisal" are, insofar as pertinent, synony- mous, i.e., they refer in sum to acts of putting or inflict- ing in return, as with an injury or wrong . Webster's Third New International Dictionary (G & C Merriam Co., 1981). A no-retaliation agreement in the-context of a strike set- tlement, as here, should be given its generally accepted meaning, in light of applicable Board precedent, unless extrinsic evidence -indicates that the parties intended oth- erwise.7 The credited evidence adduced at the hearing confirms rather' than contradicts the General Counsel's position. First, at no time did the parties say or agree that the no- retaliation clause would not apply to internal union disci- pline. -Indeed, prior - to writing up the memorandum of agreement, Attorney Garden made clear to the Union that the Company wanted a clear understanding that there would be no retaliation by the Union against em- ployees who crossed the picket line. It is undisputed that nothing else was said between the parties on this subject at any other time during the negotiations and, specifical- ly, that nothing was said when the parties went over the clause at issue. Therefore, as internal union discipline would constitute "retaliation" under both Board law and plain English, the clause should be so interpreted. 7 I do not agree with the General Counsel's argument (Br. 3-4) that I am precluded by the parol evidence rule from considering any evidence of the parties' intent beyond the language of the agreement itself. The question presented is one of contract interpretation , which should be gov- erned by the mtentions of the parties NLRB v. Ortiz Funeral Home Corp, 651 F 2d 136, 139-140 (2d Cir. 1981). This is also a case involving the alleged relinquishment of a right protected by Section 7 and Section 8(b)(1)(A) of the Act. Compare Indianapolis Power Co, 273 NLRB 1715 (1985), revd. and remanded sub nom Electrical Workers IBEW Local 1395 a NLRB, 797 F.2d 1027 (D C Cir 1986). Indeed, in Office Employ- ees, the most recent decision relied on by the General Counsel, the ad- ministrative law judge expressly took into consideration the negotiations and other statements by the parties. This is not a case such as those cited by the General Counsel Hawaii Teamsters Local 996 (Dairymen 's Assn.), III NLRB 1220 (1955), Seattle Bakers' Bureau, 101 NLRB 1344 (1953), and Peterson & Lytle, 60 NLRB 1070 (1945), in which a party seeks to present evidence of a prior or contemporaneous understanding that would clearly be at variance with or supplemental to the written agree- ment. Rather the meaning of the written agreement itself is at issue, and therefore the parties may adduce evidence concerning their discussions, or lack of discussion, concerning the clause Second, the agreement in context would make no sense unless it covered internal union discipline. At the hear- ing, the Union -argued in sum that by the no-retaliation clause, the parties agreed that the Union would with- draw its charges against the Company, there would- be no sabotage by employees, the Company would not re- taliate against returning strikers, and the Company would not take disciplinary action against employees because of picket line misconduct . However, it is questionable at best whether the pendency of unfair labor . practices would be regarded as an act of "retaliation." For the rea- sons previously discussed, the evidence indicates that the Company was not concerned about the pending charges, and the Union did not contemplate that they were cov- ered by the agreement . In its brief (Br. 4) the Union at- taches significance to the fact that the agreement re- ferred to "both parties," i.e., the Company and the Union, and "does not incorporate, by its terms, individ- ual union members." However, the agreement in Office, Employees similarly referred to reprisals `''by either side." If I were to carry the Union's argument to its logical conclusion, it would mean that the agreement might not apply to , acts of sabotage because such acts might consti- tute individual rather than union action . However, inter- nal union discipline would constitute union action, i.e., action by one of the parties to the agreement . Moreover, company discrimination against returning strikers and acts of sabotage by returning strikers would constitute, respectively, unlawful and unprotected conduct, whether the parties had an agreement . It is unlikely that the par- ties would be concerned that the other refrain from doing that which in any event would be unlawful. Rather, it is probable that the parties, in the interest of reaching a "settlement providing for industrial peace" agreed to refrain from doing that which they could or might lawfully do in the absence of an agreement. Office Employees, supra, 267 NLRB at 1021 (1981). Therefore, it is evident that the ' Company agreed to refrain from taking disciplinary action against employees because of picket line misconduct, and the Union agreed that it would not impose internal discipline on its members as a result of their conduct during the strike.8 CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within-the mean- ing of Section 2(5) of the Act. 3. By imposing fines on Harold Edelman, Melvin Em- erson, Larry DeSmith, Douglas Forester, Donald John- son, James Reiter, and Richard Schneider, in contraven- tion of a strike-contract settlement agreement between the Company and the Union, the Union engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act.' 8 I reject the General Counsel's alternative argument that the fines were unlawful at least in part because they were unreasonable in amount In determining the lawfulness of union fines on members or former mem- bers, the Board does not consider whether the fines are reasonable in amount. NLRB v. Boeing Co, 412 U S. 67 (1973) TEAMSTERS LOCAL 792 (JOHNSON BROS.) 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Union has committed violations of Section 8(b)(1)(A) of the Act, I shall recommend that it be required to cease and desist therefrom and from like or related conduct, to post appropriate notices, and to furnish and give appropriate notices to the Company. I shall further recommend that the Union be ordered to re- scind the fines imposed on the above-named employees, remove all records of the disciplinary actions taken against them, and to refund any such fines or part there- of that has been paid, with interest thereon to be com- puted in the manner and amount prescribed in Florida Steel Corp., 231 NLRB 651 (1977).9 I am rejecting the General Counsel's request for a visitatorial clause be- cause the General Counsel has failed to demonstrate that there are circumstances in this case that warrant such a remedy. See Rebel Coal Co., 279 NLRB 141 fn. 2 (1986). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edlo ORDER The Respondent, Local 792, Allied Sales Drivers, Am- bulance, Beer Brewery, Grain Elevator, Retail Liquor, Livery, Malt House, Spring Water, Soft Drink, Taxicab, Vending Drivers, Helpers, Inside Employees and Gener- al Workers Union, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representa- tives, shall 1. Cease and desist from (a) Imposing fines or other discipline on employees who crossed or worked behind its picket line during the strike against Johnson Bros., Wholesale Liquor Co. in 8 See generally Isis Plumbing Co, 138 NLRB 716, 717-721 (1962) 10 If no exceptions are filed as provided by Sec. 10246 of the Board's Rules and Regulations, ' the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 115 December 1985, in contravention of the strike-conduct settlement agreement between the parties. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the fines imposed on Harold Edelman, Melvin Emerson, Larry DeSmith, Douglas Forester, Donald Johnson, James Reiter, and Richard Schneider, remove all records of the disciplinary actions against them, and notify each of them in writing that this has been done. (b) Refund any such fines or part thereof that has been paid, with interest, as set forth in the remedy section of this decision. (c) Post at its offices and meeting halls, copies of the attached notice marked "Appendix."" 1 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Furnish to the Regional Director for Region 18, signed copies of the notice for posting, if Johnson Bros. Wholesale Liquor Co. is willing, at its St. Paul facility, in the places where notices to employees are customarily posted. Copies of the notice, to be furnished, by the Re- gional Director for Region 18, after being signed by Re- spondent's representative, shall be forthwith returned to the Regional Director for posting. (e) Notify the Regional Director in writing within 20 days from the date of this Order, what steps the Re- spondent has taken to comply. 11 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."