Teamsters Local 299 (McLean Trucking), 1250 (1984)

TEAMSTERS LOCAL 299 (MCLEAN TRUCKING) Local 299, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America (McLean Trucking Co.) and Gerald A.

LaBond. Case 7-CB-4840

19 June 1984 DECISION AND ORDER

BY CHAIRMAN DOTSON AND MEMBERS

HUNTER AND DENNIS

On 2 November 1983 Administrative Law Judge John H. West issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief and a cross-exception.

The National Labor Relations Board has delegated its authority in this proceeding to a threemember 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,I and conclusions as modified and to adopt the recommended Order.

The judge concluded that the Respondent violated Section 8(b)(l)(A) of the Act by failing to fairly represent its members employed by McLean Trucking Co. at its Detroit, Michigan terminal. We agree, but only for the following reasons.

The Respondent has represented McLean's employees at the Detroit facility for many years.

During the period relevant to this case, the employees were covered by the Teamsters National Master Freight Agreement and local supplements, effective from 1 April 1979 through 31 March 1982. That contract contained a no-strike provision which prohibited, with certain exceptions not relevant here, work stoppages authorized by the Union. In addition, the no-strike provision provided that no work stoppages would be considered to have been authorized by the Union unless (1) the Employer notified the Union by telegram that a work stoppage had taken place, and (2) the Union did not respond to the telegram. In other words, work stoppages would be deemed unauthorized if the Union did not respond to the Employer's telegraphic notification that a work stoppage was taking place. Also pursuant to the no-strike provision, employees participating in an unauthorized i The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).

We have carefully examined the record and find no basis for reversing the findings.

The Respondent's request for oral argument is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties.

270 NLRB No. 188 work stoppage lasting 24 hours or less could be subject to suspension by the Employer for up to 30 days with no recourse to the grievance procedure.

Employees participating in longer unauthorized work stoppages were subject to discharge, again with no grievance rights.

In September 1979 the Employer assigned a new terminal manager, Phillip Jennings, to the Detroit facility, and instructed him to improve the terminal's profitability. Jennings' early efforts in that regard included a tightening of the enforcement of work rules which led to some suspensions, discharges, and grievances. In late 1979 Jennings discussed with the Respondent's business agent George Langkil and the steward Murray Duncan the possibility of eliminating the positions, or 'bids,' then scheduled for the 7 a.m. to 3:30 p.m.

shift, but no immediate action was taken.

On 18 March 19802 Jennings had a meeting with the employees, at the request of Langkil and Duncan, at which employees expressed their concerns and displeasure regarding the possibility of Jennings' eliminating the three 7 a.m. to 3:30 p.m., or 'day-dock,' bids, his enforcement of certain work rules, and other matters. The employees who were scheduled to work during the meeting were paid by the Employer for the 2 hours the meeting lasted, and midnight shift employees who stayed at the terminal beyond their normal quitting time to attend the meeting were paid overtime. The following day, Jennings announced that 10 employees would be laid off and the 'day-dock' bids would be eliminated as of 24 March. 3

Thereafter, employees who were not to be laid off were informed that they could bump to another bid according to their seniority and, on 21 March, Jennings posted the new starting times for the affected employees.

According to the credited evidence, on 24

March the three employees whose 'day-dock' bids had been eliminated, along with Duncan, Langkil, and at least three other business agents, came to the timeclock area at 7 a.m. Langkil asked Jennings, who met the men at the timeclock, for the three employees' timecards, and Jennings refused.

Langkil announced that the Union was going to have a meeting, and Jennings replied that no meeting could take place at that time. The business agents nevertheless told the employees when they arrived to go to the breakroom because a meeting was taking place. At 8 a.m. an automatic buzzer sounded, signaling the start of a work shift, and Jennings had the dispatcher announce the start of 2 Hereinafter all dates are 1980.

3 The contract provided that the Employer could change the bids only on I November and I April of each year unless a layoff occurred, in which case bids could be changed when the layoff took effect.

1250

TEAMSTERS LOCAL 299 (MCLEAN TRUCKING) the shift over the public address system. Jennings then went to the breakroom and told the employees there he expected everyone to start working.

Jennings then told Langkil once more that no meeting would take place, and Langkil said no one would work until the 'day-dock' bids were reinstituted. At 8:30, when another shift was scheduled to begin, another public address announcement was made, Jennings told Langkil he wanted the employees to begin working, and Langkil again said that no one would work until the three former 'day-dock' employees were given back their bids.

At 10 a.m., pursuant to the no-strike provision described above, Jennings sent mailgrams to the Respondent's International president, the chairman of the Central Conference of Teamsters, and the Local president, Bob Lins, which asked whether the work stoppage was authorized. Jennings then informed Langkil of this fact and read the no-strike provision of the contract to him. The Employer received no response to the mailgrams. At or about 3 p.m., Lins came to the terminal and told Jennings that no one would work until 'I . . . tell you how the bids are going to be.' That night, during a meeting held at the union hall at or about 10 p.m.,

Lins told the employees that the midnight shift should report to work on time, and said, 'You can stay out 23 hours and 59 minutes, and they can't do anything to you.' The employees returned to work on the midnight shift. Subsequently, the Employer, pursuant to the contract, suspended for 30 days the employees who did not work on 24 March.

As noted, the judge concluded that the Respondent violated Section 8(b)(1)(A) of the Act by its actions of 24 March. He found that the Union instigated and caused a work stoppage in violation of the contract without informing the employees that the work stoppage violated the contract or that the violation subjected them to disciplinary action. The judge further found that by causing the work stoppage the Union used the majority of the unit employees as leverage and placed the interests of the three 'day-dock' employees above those of the other unit employees. Noting that the Supreme Court in Ford Motor Co. v. Huffman4 defined a union's duty of fair representation as requiring 'complete good faith and honesty of purpose in the exercise of its discretion,' and that pursuant to cases such as MirandaFuel Co.6 and Vaca v. Sipes6 unions have a fiduciary duty to the employees they represent, the judge found that the Respondent had a duty in this case, which it failed to meet, 'to make sure the employees were aware of the possi4 345 U.S. 330, 338 (1953).

140 NLRB 181 (1962), enf denied 326 F.2d 172 (2d Cir. 1963).

6 386 U.S. 171 (1967).

ble consequences of their action and extend to them a choice.' While we agree with the judge's conclusion that, under the standards of the cases cited by him, the Respondent violated its duty of fair representation owed to the employees who were suspended for 30 days, we do so for the reasons set forth below.

The Respondent's position communicated to the employees on 24 March, to the judge at the hearing, and to the Board in its exceptions is that the events of 24 March constituted a meeting which the Employer agreed to allow, similar to the meeting of 18 March, and not a work stoppage within the meaning of the contract. The credited evidence and all the circumstances surrounding that day's events, however, clearly show that the Union's position never was taken in good faith. The only evidence that Jennings agreed to a meeting is the discredited testimony of the Respondent's agents. The credited evidence shows not only that Jennings refused to permit a meeting, but also that Langkil and Lins told Jennings the employees would return to work if Jennings agreed to the Union's demand regarding the 'day-dock' bids. Further, in addition to sending the telegrams required by the no-strike clause, Jennings read to the union agents the contract language which expressly provided that employees engaging in an unauthorized work stoppage could be suspended for 30 days if the stoppage lasted 24 hours or less, or discharged if the stoppage lasted longer. Additionally, Lins' later statement to employees that they could not be disciplined if they refused to work '23 hours and 59 minutes' shows that the Respondent was well aware of the contractual provision governing its actions and establishes that the Union continued to mislead the employees concerning the consequences of those actions even while the Union was ending the 'unauthorized' work stoppage. These...