Associated Transport, Inc.

National Labor Relations Board - Board Decisions

Feb 29, 1968

169 N.L.R.B. 1143 (N.L.R.B. 1968)

ASSOCIATED TRANSPORT, INC.
Associated Transport , Inc. and Harold C. James
Local 182 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Amer-
ica (Associated Transport , Inc.) and Harold C.
James . Cases 3-CA-2663 and 3-CB-839
February 29, 1968
PROPOSED AMENDED DECISION AND
SUPPLEMENTAL ORDER*
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, JENKINS, AND ZAGORIA
On December 27, 1965, a three-member panel of
the National Labor Relations Board exercising
powers delegated to it pursuant to the provisions of
Section 3(b) of the Act, issued its Decision and
Order in the above-entitled cases, finding that the
Respondent Employer and Respondent Union had
violated the National Labor Relations Act, as
amended, and ordered both Respondents to take
certain remedial action to effectuate the policies of
the Act. I
Upon its own motion, the Board has decided to
reconsider the Decision and Order of the panel.
The Board having reconsidered the matter, upon
the entire record in these cases, has decided to
withdraw that portion of the Decision and Order
directed to Respondent Employer, Associated
Transport, Inc., for the reasons stated below.2
The Board is now of the view that the complaint
alleging violations of Section 8(a)(3) and (1) by
Respondent Employer should be dismissed in its
entirety.
Section 8(a)(3) of the Act provides in relevant
part:
That no employer shall justify any discrimina-
tion against an employee for nonmembership
in a labor organization ... (B) if he has
reasonable grounds for believing that member-
ship was denied or terminated for reasons other
than the failure of the employee to tender the
periodic dues and the initiation fees uniformly
required as a condition of acquiring or retaining
membership.
The Charging Party, James, was delinquent in the
payment of dues to Respondent Union. We have
nevertheless found the Respondent Union violated
Section 8(b)(2) and 8(b)(1)(A) in causing James'
discharge because it had never properly apprised
him that he was required to join the Union under
the existing union-security clause. However, there
* Absent exceptions, the Board, on March 27, 1968, adopted as its final
Order herein the Proposed Amended Decision and Supplemental order
' 156 NLRB 335.
Member Fanning, who did not participate in the original panel deci-
sion, has considered the entire record in this proceeding, including the
Trial Examiner's Decision, the exceptions and the supporting brief He
has reviewed the rulings of the Trial Examiner made at the hearing and
1143
is - no evidence that Respondent Employer was
aware of Respondent Union's failure to perform the
fiduciary duty it owed James. According to James'
own testimony, at the interview with Terminal
Manager Hays at which he was told of his suspen-
sion or discharge, he asked Hays the reason for the
action against him. Hays replied, "It has something
to do with your dues . . . ." James did not protest
that he had paid his dues or that he had not been
properly informed of his dues obligation. Instead,
he said only that he would call the Union as soon as
he returned home. In these circumstances, we find
that Respondent Employer did not have reasonable
cause to believe that Respondent Union had ter-
minated or denied James' membership for reasons
other than his failure to tender the periodic dues
uniformly required as a condition of acquiring or
retaining membership.3 Accordingly, we find that
Respondent Employer has not violated Section
8(a)(3) and (1) of the Act.
PROPOSED AMENDED REMEDY
Having found that Respondent Union has vio-
lated Section 8(b)(1)(A) and (b)(2) of the Act, we
shall order it to cease and desist from engaging in
such conduct in the future and affirmatively to take
such action as will dissipate the effects of its unfair
labor practices. We shall order Respondent Union
to notify Respondent Employer, in writing, with a
copy to Harold C. James, that it withdraws its ob-
jections to Respondent Employer's employment of
James and does not oppose his reinstatement or the
restoration of his seniority as it existed on
December 31, 1964, the date of his discharge or
suspension.
We shall also order the Union to make James
whole for any loss of pay suffered by reason of dis-
crimination against him, by payment to him of a
sum of money equal to the amount he would nor-
mally have earned as wages, from the date of the
discrimination until James' reinstatement, less his
net earnings during this period. The loss of earnings
shall be computed in the manner prescribed in F.
W. Woolworth Company, 90 NLRB 289, and with
interest on the backpay due in accordance with
Board policy set out in Isis Plumbing & Heating
Co., 138 NLRB 716.
PROPOSED AMENDED ADDITIONAL CONCLUSION
OF LAW
Substitute the following for Trial Examiner's con-
clusion of law numbered 3.
finds that no prejudicial error was committed. In agreement with the panel
he affirms such rulings. Also, in agreement with the panel he adopts the
findings, conclusions, and recommendations of the' Trial Examiner only to
the extent they are consistent with the original panel Decision and Order
and with this Proposed Amended Decision and Supplemental Order
3 Special Machine and Engineering Company, 109 NLRB 838.
169 NLRB No. 164
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"3. By causing Respondent Associated Trans-
port, Inc. to discharge Harold C. James for reasons
other than his failure to tender periodic dues and ini-
tiation fees, Respondent Union violated Section
8(b)(2) and (1)(A) of the Act."
Delete the Trial Examiner's conclusion of law
numbered 4 and renumber the succeeding conclu-
sions of law consecutively.
PROPOSED SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board vacates its previous Order of
December 27, 1965, with respect to that portion
directed to Respondent Employer, Associated
Transport, Inc., North Tonawanda, New York, and
hereby orders that the complaint alleging violations
of the Act by Respondent Employer be dismissed
in its entirety.
IT IS ALSO ORDERED that the words "Jointly and
severally with Respondent Employer" be deleted
from section 2(a) of the Order directed to Re-
spondent Union.
NOTICE
The parties are hereby notified that they have 20
days from the date of issuance of this Proposed
Amended Decision and Supplemental Order within
which to file exceptions thereto and supporting
briefs with the Board in Washington, D.C.
MEMBER JENKINS , dissenting in part:
I agree with my colleagues' conclusions that the
Respondent Union violated Section 8(b)(2) and
8(b)(1)(A) in causing James' discharge because it
had never properly apprised him that he was
required to join the Union under the existing union-
security clause. For the following reasons, I dis-
agree with their dismissal of Section 8(a)(3) and (1)
allegations of similar violations by the Employer:
The Employer hired James as an over-the-road
truckdriver in August 1956 at its North Tonawan-
da, New York, terminal. James worked continu-
ously for the Employer as an over-the-road driver
until December 31, 1964, when he was discharged
at the request of Respondent Union. During James'
entire period of employment Teamsters' Local 449
was the collective-bargaining representative of, the
Employer's over-the-road drivers.4 Additionally,
Joseph Hays, Jr., the Employer 's terminal manager
at North Tonawanda, testified that the Employer al-
ways administered the collective-bargaining agree-
ment covering the over-the-road drivers with Local
449, dealing particularly with Anthony Sorrentino,
business agent of that Local. Moreover, according
to Hays, he believed that all the Employer's over-
the-road drivers were members of Local 449, and
that the Local grievance committee established to
consider grievances involving the Employer's over-
the-road drivers was comprised of representatives
of Local 449 and no other Teamsters local. Finally,
Rockwell F. DePerno, president of Respondent
Union, in effect admitted that the grievance
procedure established in the contract required an
over-the-road driver employed by the Employer to
file all grievances with a representative of Local
449 since Respondent Employer was within the ju-
risdiction of Local 449.
In these circumstances, the sudden demand for
James' discharge made by DePerno, a union
representative with whom the Employer did not
normally deal, on behalf of a Local with which the
Employer had no dealings, placed the Employer
under an obligation at least to investigate the cir-
cumstances of the demand and to determine
whether it was his responsibility under the Agree-
ment to accede to the demand.
A brief investigation would have revealed that
Local 449 rejected James' application for member-
ship, refused to process his grievance, and that
membership in Local 449 was not available to him
on the same terms and conditions generally applica-
ble to all of the other over-the-road drivers in its
employ. Such investigation would have also
revealed that because James was denied member-
ship in Local 449, he became a member of Local
182 only after DePerno told him that unless he was
a union member he would not be permitted to pull
freight from the Utica terminal, which was within
the jurisdiction of Local 182; that he was thereafter
expelled from membership in Local 182 because of
nonpayment of dues but was never notified of such
expulsion; and finally that he was never apprised of
his membership obligations prior to his termination.
In short, such an investigation would have quickly
established the unlawful nature of the Union's de-
mand for James' discharge, and the curious
character of the circumstances catalogued above
should have impelled the investigation.5
Accordingly, I would hold that in acceding to the
Union's unlawful demand, the employer thereby
violated Section 8(a)(3) and (1) of the Act.6
My colleagues' dismissal of the 8(a)(3) and (1) al-
legations of the complaint overlooks a grave point
made by the General Counsel, that under the terms
of the 1964 Teamsters Agreement, only Local 449
had standing to enforce the union-security clause,
and that as Respondent Local 182 acted without
such legal right it violated Section 8(b)(2) of the Act
4 During this same period of time , Respondent's city drivers and dock
employees were represented by Teamsters' Local 375.
5 James' silence at the time of his discharge by the Employer is not sig-
nificant, for James had long been rejected by Local 449, had been expelled
by Local 182, and undoubtedly believed at that moment any protest on his
part would be fruitless and that his plight was indeed hopeless
s IUE, Frigidaire Local 801 [ General Motors Corp.] v. N.L.R.B , 307
F 2d 679 (C A D.C.), cert. denied 371 U.S 936
ASSOCIATED TRANSPORT, INC.
by causing James' discharge, and that Respondent
Employer violated 8(a)(3) by acquiescing in and ef-
fectuating a demand for his discharge not
authorized by the Agreement. The majority ab-
solves Respondent Employer of any unlawful con-
duct by assuming, arguendo, that Local 449 could
lawfully transfer James out of its jurisdiction to that
of Local 182, so as to require James to become and
remain a member of Local 182 in order to retain his
1145
job. If, in fact, the pertinent collective-bargaining
agreements (to which Respondent Employer was
bound) barred Local 182 from lawfully demanding
James' discharge, Respondent Employer clearly
would have violated Section 8(a)(3) in honoring
such demand. Thus the Board has in my view
dismissed the 8(a)(3) and (1) allegations without the
requisite consideration of the relevant evidence.