Auto Convoy Co., 1192 (1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

Auto Convoy Co. and Jesse S. Cabrera Teamsters, Chauffeurs, Warehousemen, Helpers and Food Processors, Local Union 657, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Jesse S. Cabrera. Cases 23CA-8818 and 23-CB-2632

13 September 1983 DECISION AND ORDER

BY CHAIRMAN DOTSON AND MEMBERS

ZIMMERMAN AND HUNTER

On 8 March 1983 Administrative Law Judge Donald R. Holley issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondents each filed an answering brief to the General Counsel's 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 attached Decision in light of the exceptions and briefs 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 Relations 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 alleged in the complaint that Respondent Union violated Sec. 8(b)X)(A) of the Act by threatening to terminate Jesse Cabrera from his job as the Union's business agent if Cabrera persisted in seeking a position on the Teamsters Joint Council. Since Cabrera was an employee of the Union when that threat occurred, we agree with the Administrative Law Judge that the unfair labor practice alleged against the Union, if any, would be circumscribed by Sec. 8(a)(l) of the Act, and not Sec. 8(b)(1)(A) as the General Counsel has alleged. Accordingly, we adopt the Administrative Law Judge's dismissal of this complaint allegation on the basis that the General Counsel has not properly framed the affirmative case to support a finding of any unfair labor practice. Accord: Typographical Union Local 650 (The Daily Breeze), 221

NLRB 1048.,fn. 1(1975).

DECISION

STATEMENT OF THE CASE

DONALD R. HOLLEY, Administrative Law Judge:

Upon charges filed by Jesse Cabrera (herein called Cabrera) against Teamsters, Chauffeurs, Warehousemen,

Helpers and Food Processors, Local Union 657, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called Respondent Union or Local 657) and Auto Convoy Co. (herein called Respondent Employer or Auto Convoy), the Regional Director for Region 23 of the National Labor Relations Board (herein called the Board) issued a consolidated complaint on April 28, 1982, alleging, in substance, that: Respondent Union violated Section 8(b)(l)(A) and (2) of the National Labor Relations Act, as amended (herein called the Act), in January 1982 by threatening to fire Cabrera from his job as a business agent of Local 657 if he ran for union office, and by thereafter causing Auto Convoy to terminate Cabrera from a truckdriver position because he had run for and been elected to the above-mentioned union office; and that Respondent Employer violated Section 8(a)(l) and (3) of the Act by discharging Cabrera from its employ at Respondent Union's request.

This case was heard in San Antonio, Texas, on September 30, 1982. All parties appeared and were afforded full opportunity to participate. Upon the entire record, including post-hearing briefs filed by the parties which have been carefully considered, I make the following:

FINDINGS OF FACT

1. JURISDICTION Auto Convoy Co., is limited partnership, with offices and places of business in various States of the United States and a place of business in San Antonio, Texas, is engaged in the shipping, transporting, and interlining by truck of new automobiles and trucks in intrastate and interstate commerce. During the 12-month period preceding issuance of the complaint herein, its gross revenue exceeded $500,000 and it received in excess of $50,000 for transporting vehicles directly to and from points located outside the State of Texas. It is admitted, and I find, that Respondent Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

   11. STATUS OF LABOR ORGANIZATION It is admitted, and I find, that Respondent Union is a labor organization within the meaning of Section 2(5) of the Act.

   Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts 1. Background Auto Convoy has terminals at nine locations in three States, i.e., Louisiana, Oklahoma, and Texas. Its terminals located at San Antonio and Houston, Texas, are the only operations immediately involved in this proceeding.

   Respondent Employer is a party to the National Master Automobile Transporters Agreement (herein called the Agreement).' Its truckdrivers at the various terminals are represented by different Teamster Locals.

   Thus, the record reveals that the drivers at the San An' The Agreement was placed in the record as G.C. Exh. 12.

   267 NLRB No. 97

   1192

   AUTO CONVOY CO.

   tonio terminal are represented by Respondent Union,

   Local 657, and that the drivers at its Houston, Texas, terminal are represented by Teamsters Local 988. At all times material, Raleigh Mull, Jr., has been the president and business manager of Respondent Union, and Preston Ketchman has been its secretary-treasurer. 2

   2. Cabrera's employment as a business agent and leave of absence Jesse Cabrera was hired by Auto Convoy as a truckdriver on February 28, 1974. In August 1980, while in layoff status, he was offered and accepted a position as a business agent with Respondent Union.

   Having accepted the business agent position, it was necessary for Cabrera to obtain a leave of absence from Auto Convoy to protect his right to return to driving if he decided he did not want to work for Respondent Union on a regular basis. Article 46 of the above-mentioned Agreement defines the rights of the parties in leave of absence situations stating (in pertinent part at p.

   104):

   Absence Section 1. Time Off for Union Activities: The Employer agrees to grant necessary and reasonable time off, without discrimination, without pay and without loss of seniority, to any employee designated by the Union in writing for a period not to exceed sixty (60) days to attend a labor convention or to service on official Union business.

   Section 2. Leave of Absence: Any employee desiring leave of absence from his employment shall secure written permission from both the Local Union and Employer. The maximum leave of absence shall be for a total of one hundred and eighty (180) days.

   During the period of absence, the employee shall not engage in gainful employment in the same industry in classification covered by this Agreement.

   Failure to comply with this provision shall result in the complete loss of seniority rights for the employees involved. Inability to work because of proven sickness or injury shall not result in the loss of seniority rights. The employee must make suitable arrangements for continuation of Health and Welfare and Pension payments before the leave may be approved by either Local Union or Employer.

   In 1980, R. Fischer, Jr., was Respondent Employer's director of labor relations. By letter dated August 13, 1980, Local 657's business manager, Mull, requested that Cabrera be given a 90-day leave of absence so he could work for Respondent Union.3

   By return letter dated August 15, 1980, Fisher granted the request.4

   On No2 It is admitted, and I find, that Mull and Ketchman are, and have been at all times material, agents of Respondent Union within the meaning of Sec. 2(13) of the Act. In addition, it is admitted, and I find, that C.

   Forest Guest is, and has been at all times material, a supervisor and an agent of Respondent Employer within the meaning of Sec. 2(i 1) and (13) of the Act.

   3 G.C. Exh. 2.

   ' G.C. Exh. 3.

   vember 10, 1980, Mull requested an additional 90-day leave of absence of Cabrera. 5

   By letter from Fisher to Mull dated November 13, Fisher granted the request, indicating the new 90-day leave of absence would start on November 10, 1980. Significantly, Fisher closed his November 13 letter stating: 6

   This will account for the 180 days leave of absence which can be granted under the contract. If at the end of this 90 day leave of absence additional time would be required same will have to be cleared by an appropriate committee.

   By letter dated January 20, 1981, Mull requested that Forest Guest, then Respondent Employer's assistant general manager, extend Cabrera's leave of absence an additional 90 days. Mull added a postscript which stated:7 'Forrest I would appreciate your consideration of this. It would be a favor to me.' With specific regard to Cabrera's situation, Guest testified that he spoke with Cabrera, who was policing the Agreement at Auto Convoy during 1981, several times about his leave of absence indicating to Cabrera that he needed to 'get his house in order and get the matter cleared up.' According to Guest, the last such discussion occurred on November 3 or 4, 1981, at which time he contends he informed Cabrera they were both in technical error because Cabrera had not gone through the appropriate committee structure to extend his leave of absence. Guest claims Cabrera laughed at the time and said he would take care of it. 8

   On December 31, 1981, Guest sent Cabrera a certified letter (copy to Mull), the body of which stated:9

   It has come to our attention that the leave of absence granted to you has long passed applicable terms and problems are now arising with your status as far as Health Welfare and Pension and other considerations.

   Therefore, please be informed by this letter that after January 15, 1982 the Company will no longer recognize your leave of absence. Please make...