B. G. Costich & Sons, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1979

243 N.L.R.B. 79 (N.L.R.B. 1979)

B. G. (OSTI(CH & SONS. IN(C.
B. G. Costich & Sons, Inc.: East End Moving & Stor-
age, Inc.; Wm. J. Renner Carting Co., Inc.: and
Service Storage. Inc. and New York State Team-
sters Conference Pension and Retirement Fund and
Chauffeurs, Teamsters and Helpers, Local Union
No. 118, Party to the Contract. Cases 3 -CA 8453
4. 3 CA 8453-5, 3-CA 8453 8. and 3- CA 8453
Ii
June 26, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MIMHBRS PNI I ()
AN) TRt ISI)AI 1
On March 23. 1979, Administrative Law Judge Da-
vid S. Davidson issued the attached Decision in this
proceeding. Thereafter. Respondents filed exceptions
and a supporting brief:' and the General Counsel filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(h) of the
National Labor Relations Act, as amended, the Na-
tional abor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions an(d brief's
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge. except
that the remedy is modified to delete the provision lbr
a fixed rate of interest on the retroactive pa1 ments to
the Fund,2 and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National labor
Relations Act. as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondents B. G. Costich & Sons. Inc.:
East End Moving & Storage. Inc.: Wm. J. Renner
Carting Co., Inc.: and Service Storage, Inc., Roches-
ter, New York, their officers, agents, successors. and
I As the record adequatels presents the positions of the parties. he tnm-
ployer's request flr oral argument is herehs denied
I Because the prilvisions of employer benefit fund agreements .ire s:lriable
and complex, the Board does notl provide al the adudicator, stage ot i
proceeding for the additl(n of interest at fixed rate n unlawlulls withheld
fund payments We leave to the compliance stage the question whelher Re-
spondent must pay an) additional amounts into the henefit funds in order to
satisfy our "make-whole" remedy. These additional amounls mas he deler-
mined, depending upon the circumstances ol each case, by reference to pro-
visions in the documents governing the funds at issue and. vs here there are no
governing provisions, to evidence of any loss directly ittrlbut.lble the
unlawful ilthholding action, which might include the loss of return on n-
vestment of the prrtlin f funds withheld. additlonal adminlstratl e co,*s.
etc.. hut not collateral losses See Uern Hlfrter Opirl ( nltpllnV. 24(0 NI RB
1213 1979}.
assigns. shall take the action set forth in the said rec-
ommended Order.
)CI,(' SION
S l -I1-NI t l 1 1 II CI( S!
D)AxID S. DA\i)stO. Ad.nministrativ e l.aU Judge: The
charges in this case were iled on April 19. 1978. hb New
York State 'eamsters ('ontrence ension and Retirement
Fund, herein called the I-und. 1 he consolid.ated complaiint
issued on June 16. 1978. alleging that Respondents have
violated Section 8(a)(3) and (I of the Act bh making pen-
sion fund contributions to the und on behalf of1 casual
emplovees who are members of ('hauticurs. ITealmsters and
Ilelpers. ocal Union No. I 18. ile refusing to nmake such
palllen ts on behalf oft casual eplo sees \v ho are not mellm-
bers of I.ocal 118. In their ansVuer, Respondents den, the
commission oft' anx untair lahor practices.
A\ hearing was held belire me in Rochesler. Nessu York.
on September 28 and 29. 1978. At the conclusion of the
(ieneral Counsel's case, the General Counsel as permitted
to withdraw the complaint insofar as it relates Ito Boulter
('arting Co., Inc.. ('lanc, ('arting & Storage ('Co,. Inc..
George M. (lancs ('arting ( Co.. Inc.. (Glhobal \n allid Stor-
age. Iic.. (iottr, Corp., Mlichael J. R an d b a R an ('art-
ing ('o.. and Vogel Van & Storae of Rochester Inc., lea',-
ing to he decided the allegations a to B. (. (. )tich & Sons,.
Inc.. herein called ('ostich. ast E:id nMOilg & Storl-g.e
Inc.. here called L-ast Id. . J. Renner (artline Co.,
Inc.. herein called Renner. and Service Storlge. Inc.. herein
called Service. At the conclusion of the hearinig. the remainll-
ing Respondents 1moied t- lisissal ol' the coimplallit is Ito
therm aind ruling ;i as resericed The General Counsel a;id
Respondents ha\se iled bricl,
I pon the entire record in tils case. including m, ohbser-
v;ation o te iln1esses ;11ld their delmeanor. I make tle 1ol-
lo in e:
I:I,,)l(;rs \NI) ('ot( I t sI)Ns
1. 111 Ilt SIIS () RSP0(\I I
Respondents (ostich. Ltast nd. Renner. and Service are
engaged in the nloving and storage of household goods and
related services in Rochester, Nees York. AnnuallN each
derives gross revenues in excess of $S500(X) trom its llO ming
and storage operations performed pursua nt ti o conlractis
with or arrangements , itlh Lindl or as agents tr ',trllnis iin-
terstate commninion carriers. I tind that Respolldenlts are enl-
ployers engaged in coLrmmerce u ithin the meatinig of the
Act and that it u'ill effectuate the policies of the Act to
assert jurisdiction herein.
I 11. I AB(R (lR(i NIZAI[()N INS\tl 'l-li
Local 1 18 is a labor orgalizatilon w ithin the meaning t
the Act.
243 NLRB No. IS
I)'CISIONS O(): NATIONAL L.ABOR RELATIONS BOARI)
l. ilt Al Itil) tUNIAIR I AB(R PRA( II(l:S
A. The a vly
1. he agreements between the parties
Respondents are members of Rochester Truckmen's and
WarehousemCen's Association, herein called the Associ-
ation. and bargain jointly through the association with Lo-
cal 118. heN are parties to a collective-bargaining agree-
ment with I.ocal 118 effective from April 16, 1977, to April
15, 1980.
Article I provides that the agreement covers "all truck
driers, helpers, dockmen, warehousemen checkers, power-
lilt operators hostlers. riggers, rigger helpers, packers of
chi na and furniture, heavy hauling and freight, and such
olher employees as may be presently or hereafter represent-
ed b the ni n." It provides further that employees cov-
ered by the agreement shall include all employees used in
dockwork checking, stacking, loading, unloading, handling,
shipping. receiving, assembling. and allied work.
Article 2, Section 1 of that agreement provides that the
ciployer recognize I.ocal 118 "as the sole and exclusive
representative for all employees in the classification of work
covered by this Agreement fior the purposes of collective
hargainilig as provided by the National abor Relations
,Act."
Article 2 Section 2 entitled "Probationary Employees,"
provides lor a 30-day probationary period for new employ-
ecs ftler which they are to be placed on the regular senior-
itl list. but "This does not apply to employees who are
hired as replacements for employees who are on vacation or
are absent from work." It also provides as follows as to
casual employees:
In case olfdiscipline within the thirty (30) day period
the mrnployer shall notify the Local Union in writing.
Casual employees shall not come under this provision.
('asual employee is one hired to cover jobs caused
by vacations sickness, absenteeism and leaves of ab-
sence and cannot work more than five (5) months or
one hundred (100) work days without acquiring senior-
ity.
Casual employees of thirty (30) work days or more
shall be granted the first regular job openings and no
junior casual employee can be employed unless senior
casual is also employed or has earned his full day or
full week. Senior casual employees shall be granted
regular job before hiring any junior casual employees
as regular employees.
Any casual employee whose work is fifty per cent
(50W7) or more due to influx of business for thirty (30)
days or more automatically becomes a regular em-
ployee after thirty (30) days.
Regular employee is one hired to fill job designated
by Employer for a period of thirty (30) consecutive
work days, or any employee who has an earned senior-
ity as specified elsewhere herein.
Regular employees on laid off status must be re-
called to work in seniority order before any casual em-
ployees and casual employees of thirty (30) work days
or more shall hold casual seniority and shall be laid off
and rehired according to their casual seniority.
Article 23 of the agreement. entitled "Pension and Re-
tirement Fund," provides that the employer agrees to con-
tribute to the fund for "any and all of his employees cov-
ered by this Agreement" in specified amounts. It provides
further that the fund shall be open to participation by any
group of members belonging to a participating local and
*'any or all other employees of a participating Employer not
members of the Union." It provides further that it is under-
stood that the contributions to the fund provided therein
"are in the nature of compensation to the emploNec for the
purpose of inducing employment and continued elmploN-
ment in the industry and for the purpose of providing bene-
fits for himself and his dependents however intangible such
benefits mav be to the individual employee at any gi en
time."
In administering the pension fund, participating emplo\-
ers are usually required to sign a orm stipulation provid-
ing, among other things: "I. The employer agrees to con-
tribute for any and all of his regular ull-time and any and
all other employees covered by this Agreement" to the
fund.
It provides further:
7. The Pension Fund shall be open to participation
by any group of members belonging to a participating
I ocal Union and the employer maN contribute to the
New York State Teamsters ConIerence Pension & Re-
tirement Fund for employees working outside the juris-
diction of the C(ollective Bargaining Agreement in the
amounts indicated above. However, if these emplo ces
are included, the employer agrees to make contribu-
tions on all emplovcles in this categor subject to) the
same conditions and on the same basis as is provided
in this stipulation. and the employer also agrees to con-
tilue to nlake contributions on all o!f Ihew cmphOlees
tor as long as there shall be a Collective Bargaining
Agreement or Agreements between the employer and
the U nion subject to any and all rules and regulations
of decisions covering this group that are issued bh the
Board of Trustees.
8. The employer agrees that should he not make
contributions on 100`r7 of all his non-union employees
as required herein, the New York State Teamsters
Conference Pension & Retirement Fund will not pay
nor be liable or obligated to pay any Pension & Retire-
ment or other benefits to all his non-union employees
whatsoever, whether or not contributions were made
on such individuals, in which event the employer shall
pay to any or all such non-union employees any and
all Pension & Retirement or other benefits that such
employee or employees may have been entitled to or
are later entitled to until such time that the Pension
Board of Trustees of the New York State Teamsters
Conference Pension & Retirement Fund once again
extends coverage to this group and only under terms
decided solely by the Board of Trustees of the New
York State Teamsters Conference Pension & Retire-
ment Fund.
Under the plan administered and supported by the fund.
in order to be eligible to receive retirement benefits a par-
8(
B. (;. ('()STICH( & SONS. IN(
ticipanit lutst accuulaite t least 5 ,ars of credited ser-
Ice.'
2 'he declaratorl judgmelnl
In Janu;arr! 1978. metblhers ol the associationl. including
Respondents. commenced c il actlion in the Supreme
Court of New York. seeking among other things a declara-
tory judgment that the employer members of' the associ-
ation are not required hb the collectise-hargaining agree-
ment to make contributions to the und on behalf of
nonunion employees.'
On August 2. 1978. Justice Robert Ht. Watgner issued a
declaratory judgment in favor of the association. holding
that its ermployer members were obligated under the collec-
tive-bargaining agreement to make contributions to the
fund "only on behalf of employces who are members of'
I.ocal ULnion No. 118." Although the accompanying deci-
sion of the court contains some indication that the court
was under the impression that all casual employees were
not members of local 118 and were excluded rom cover-
age by the contract, it concluded that the intent of the par-
ties was to establish a closed shop and that for pension
purposes only union employees doing bargaining unit work
were covered by the contraclt.
A notice of appeal from the declaratory judgment has
been filed, and the appeal was pending at the time of the
hearing.
3. he practice \with respect to contributions to the fund
on behalf of casual employees and their employment
During the period from October 19. 1977, 6 months be-
fore the charges in this case were filed, until the date of the
hearing. Respondent Costich employed 27 casual employ-
ees, of whom only one was a member of Local 118. During
the same period Respondent East End employed 39 casual
employee. of whom 7 were members of Local 118: Respon-
dent Renner employed 15 casual employees. of whom one
was a member of Local 118: and Respondent Service em-
ployed 37 casual employees, of whom 8 were members of
Local 118. During this period each of these Respondents
made pension contributions to the fund on behalf of the
casuals who were members of Local 118. but not on behalf
of the remaining casuals who were not members of Local
118.
Casual employees are hired either through the New York
State Department of Labor or from lists of prospects main-
tained by Respondents. Casuals work as drivers, helpers. or
warehousemen as needed, and never perform work other
than that performed by regular bargaining unit employees.
Because they often lack experience, they usually require
more supervision than regular employees. They receive the
same hourly wage as regular employees receive, but do not
I Death and disabilily benefits may accrue after I year ot partilcipallon.
The rate of accrual of credits is geared to the contractual contribution rate
per hour. and credits can accrue in amounts as little as IlOth of a year
based on the total contribuion made in a parllcipant's behalf in the course
of a fiscal year
The collective-bargaining agreement contains a union-security clause In-
)rfar as appears. the only employees referred it as nonunion employees sere
casual employees who were not members of I.ocal 118.
receive fringe benefits other than the conlrlbutions to the
iund made on behalf' o uniolr meniber casuals. ()nc s iltl Ne
testified that Boulter made such conitributions oni behllll
its union casuals because the nion casuals er ce rmore expe-
rienced than the nonmember casuals.
As a rule. Respondents dLI nol tell nonmli¢inlber casuls
that thev have made contributionis to thie pension lfund on
behalf of union member casuals. but once a iioltlh lthie irfe
required by the terms of the stipulation \\ith the iIuld to
post in conspicuous places copies of' the rellitlalce fornl [o
the fund listing each emploecc on %khosc behalf colntribu-
tions have been made and the arnotiunls o llhe cltlrlibu-
tlons.i
B. ( ontludltf -noldn'
T'here is no dispute that casual eplol ees are emploees
within the meaning of the Act who are protected b, Sectlion
8(a)(3) of the Act against iscrirnilnialio n hich encouraLes
or discourages union membership. H(voweer. there re is-
sues raised as to the inclusion of the casual emplo Nees in the
contractual unit and as to whether the disparate I reatnient
of nonmember casuals is discriinationll I.hich encouraTes
union membership.
Initially, the General ('ounsel contends that .111 ;casual
employees are part of the contractual bargaining uilil. % h1ilC
Respondents contend that the s are not. Responlenis con-
tend that its position is consistent with the decision of the
court in the declaratory judgment action. However. while
one portion of the decision appears to state that all casuals
are excluded from the contractual unit. it reaches the con-
clusion that the contract covers all union members. includ-
ing casuals." but excludes all nonmember casuals. It thus
appears that in this proceeding neither the (ieneral ('ounsel
nor Respondents support the position take bs the court.
While the state court had jurisdiction to construe and en-
force the collective-bargaining agreement.' the Board is not
bound by the decision of the state court." Here. to the ex-
tent that the state court found that the contract established
a closed shop and covered casual employees who were
members of Local 118. while excluding casual employees
who were not, the decision establishes a members onl' con-
tractual unit which the Board would not find appropriate.'
Moreover, the construction of the agreement as establishing
a closed shop places it in conflict with the provisions of
Section 8(a)(3) of the Act. In these circumstaces. it is ap-
propriate to interpret the agreement independentl of the
decision in the state court."
One of the Respondents. Costich, stopped posting the Iorms, hen the
current collective-bargaining agreement became eflectise because t did not
sign a new stipulation with the lund In its case. each nlinth the teward
inspects the remittance form and verifies that the pay ments hae been made.
3 From their conduct it is clear that Respondents so, construed the decision
and order and continued their practice sith respect to conlrlhution, Io) the
fund.
C' harles Dond Be s Co. Inr v Curtnev. e ,al 368 t S 502 1962) Smith
v. Evening Nes) AtssoliaiOtn. 371 S 195 (19621
6Combustion Engin'ering (onmpar . I1n , 86 NiRB 1264. 12t,6 67 I 194
9 i
cf. N 1. R. B s 4llter E Hema nl. dbh:. Stlo s.s, lhriiisr 541 : 2.l 796
(9th (ilr 1976).
'ManuJacluring o4- x>ni.,'rAt Aes4o,lllan t (;relater S.u, )r, lin-. 194
NLRB 122. 1123 11972): Aaou P-,ler I.ygh (n)1atl, 64 NlRH 915
(1945)
('f. ( re v Ueonlthoire l ,,i rlr, (orp. 17S I S 26 1.272 119t,4
EI)t('ISI()NS ()1: NATIONAI. IABOR REI.ATIONS BOARI)
Contrary to the court decision. it is clear rom the lace of'
the agreement that it establishes a lawful union shop. rather
than a closed !,hop. and that nonmembers of Local 118 are
covered by its terms, even though theN man he required to
become members of ILocal 118 after finishing grace or pro-
bationary periods.
Furthermore, notwithstanding testimony of several wit-
nesses that they never negotiated with Local 118 on behalf
of casual employees, inclusion of provisions in the agree-
ment which have appeared in predecessor agreements for
many years shows that the parties have bargained over
terms of employment of casuals and have regulated em-
ployment of casuals by their agreements. Thus. the agree-
ment specifically provides that it covers all employees per-
forming the work described by its terms. While it denies
casual employees seniority after completion of a 30-day
probationary period and exempts casuals from a require-
ment of notification to Local 118 of disciplinary actions, it
provides for casual seniority and gives senior casual em-
ployees preferential hiring rights both for regular job open-
ings and casual employment. Although some of the provi-
sions in the agreement pertaining to casuals may he viewed
as intended to protect the jobs of regular employees against
erosion through abuse of the right to hire casual employees.
the preferential hiring rights given senior casuals are of no
benefit to regular employees and can only be viewed as
regulation of the terms and conditions of employment of
the casuals.'
In these circumstances. I find that the agreement was
intended to cover all casual employees, who, as has been
shown, perform the same work as regular employees. As
there is no evidence to show that inclusion in the contract
unit of the employees termed casual by the agreement in
this case conflicts with any policy of the Board."' I find that
the parties have established by a long bargaining history
units which include casual employees with regular employ-
ees performing the same work.
I find further that the Respondents' payment of pension
contributions to the fund for casuals who were members of
Local 118 at times when it did not make such payments for
nonmember casuals constituted discrimination in regard to
terms or conditions of employment which encourages union
membership. Respondents content that there were in fact
no benefits lost by nonmember casuals because they would
never receive pension or retirement benefits under the pen-
sion plan as they would never accumulate 15 credit years.
Respondents' contention, however, is premised on the as-
sumption that nonmember casuals will never become regu-
lar employees, an assumption that cannot be made in the
light of the provisions of the agreement which contemplate
that casual employees may become regular employees and
set forth the conditions under which the change of status is
to occur. Many employees, including nonmember casuals.
member casuals. and regular employees may never accu-
' In their briefl in connection with their contention that any discrimination
which may occur is de mnimin., Respondents appear to concede that casuals
are required to become members of the Uinion ater 30 dys olf casual em-
ployment. which would he inconsistent with a conclusion that the agreement
does not cover casual employees.
'l See 411-Work, Inc, 193 NLRB 918 (197 1); Rt Pil, Produ il.s, In,
121 NlRB 1172 (1958).
mulate 15 credit ears under the terms of the plan, but their
identity cannot he determined in the earl years of their
employment, and the agreement contemplates that not ev-
ery employee on whose behalf contributions are made will
ultimately receive a pension from the fund. Thus it provides
that contributions to the fund are compensation foir the pur-
pose of providing benefits "however intangible such bene-
fits may be to the individual employee at any given time."
But to the nonmember casual who ultimately becomes a
regular employee Respondents' failure to make payments
to the fund while he is not a member may result in his being
required ultimately to work longer than a member casual to
become eligible for a pension. I find that the failure to pay
pension contributions for nonmember casuals is discrimina-
tion with respect to terms of employment.
Respondents' also contend that anv discrimination is de
inini.y because it results in at most loss of one-tenth of a
credit for failure to contribute on behalf of an employee for
the first 30 days of his employment. However, the require-
ment that an employee work an additional 30 days to be
eligible for retirement is hardly trivial and may bear serious
consequences for an employee or his dependents in future
years. There is no indication that Respondents intend to
change their practice in the future, and the number of casu-
als affected by the practice is constantly expanding. I find
that the discrimination is not tic miniini.s.
Respondents contend further that there can be no finding
that discrimination in this case encouraged union member-
ship because there is no evidence that nonmember casuals
were aware that pension contributions were made on behalf
of member casuals. However. it is not necessars to show
that the specific discriminatees knew of Respondents' prac-
tice. Three of the Respondents posted their monthly remit-
tance reports of contributions to the Fund. and the fourth
showed its report to the shop steward. The purpose of this
disclosure was to insure that all contributions required by
the agreement were made. In these circumstances, it is rea-
sonable to infer that employees were aware of Respondents'
discriminatory practice.
Finally. Respondents contend that there is no evidence of
discriminatory intent and that no such intent can be found
where Respondents' conduct was confirmed by the declara-
tory judgment. However. "specific proof of intent is unnec-
essary where employer conduct inherently encourages or
discourages union membership."i The declaratory judg-
ment came long after Respondents adopted the practice of
making pension contributions for casuals based on their
union membership, and clearly was not the cause of it."
I Radio Offi'er' Union of/the ('onmmerial Telegraphers nwtion, A II .4 H
Buli/ Stealm.rhip ('umpanvl v. h L. R B. 347 U.S. 17. 45 (1954.
1 Respondent Renner contends that the evidence shows that it made cn-
tributions t, the pension fund n behalf of member casuals onl after being
advised ,of Justice Wagner's decision and order and that it should not be
found in violation eof the Act fur following that oirder. Als'in Renner. pres-
idenl ,of Respondent Renner. testified that during the period beginning ()cl,-
her 19. 1977. ii, the date of' the hearing. Respondert Renner emploved nl
oine member casual who was hired on August 16. 1978X and thai Ihe omtrl-
hution n his behalf was made ;lier Renner was adilsed ol the declsion ot
Justice Wagner and pursuant thereto. Although Renner also testificd thal ti
the best of his knowledge Respondent Renner had neer presiousl? enl-
pityed a member casual. in an aliid.l it g e tihe ( teera (' ountel on Ma 1 s
10. 1978. Renner stated that since 1955 Renner had mide conltributioin t o
the pension fund ion behalf ,lf member c;lsudll In the hlght I Ithli s llelient
82
B (i. (O()SII('1 & SONS. INt(
Moreo er. the State court decision did not purport to deter-
mine the lawfulness of the practice under the Xct and gave
no cause for Respondents to believe that the agreement as
construed did not violate Section 8(a)(3). find that Re-
spondents' conduct in this case inherentls encouraged
union membership and violated Section 8(a1)3) of the Act. '
While I have found above that casual emplo es were
included in the contractual bargaining unit e en i the c a-
suals had been found to be excluded froim the contractual
unit, the conclusion would nonetheless tbllow that Respon-
dents' practice with respect to pension fund contributions
for casuals was discriminatory.l4 While Respondents con-
tend that the reasoning of Radio Ofilcer' ,in x.
N.L.R.B.. ulprei, applies only where the two groups of' eiiim-
ployees who have been treated unequalll are represented
by a union in the same bargaining unit. the cases relied onl
by Respondents all involve situations in which a group of'
represented employees has been treated dlifferently front a
group of unrepresented employees." 'I hey do not stanld for
the proposition that an employer maN grant union meimbers
different benefits from those provided nonmembers v where
none of them are represented for purposes of collectise bat-
gaining and all of them perform the same work and other-
wise receive the same benefits. In the circumstances here
present the differing treatment is based solely on Lunilon
membership and violates the Act for the same reasons as set
forth above. I conclude that Respondents hate iolated
Section 8(a)(3) and ( I ) of the Act by making pension contri-
butions to the fund on behalf of only those of its casual
employees who were members of ocal 118.
IV. rFIlEF RMttDY
Having found that Respondents engaged in unfair labor
practices I shall recommend that they be ordered to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
As I have found that Respondents unlawfully discrimi-
nated against casual employees who were not members of
Local 118 by not making pension contributions on their
behalf while making such contributions on behalf of mem-
ber casuals, I shall recommend that Respondents be or-
dered to make the nonmember casuals whole b making
such contributions to the fund retroactively on their behalf
for the period from October 19. 1977. the date 6 months
before the charge was filed, until such time as Respondents
begin to make contributions to the fund on behalf of all
casual employees, to which shall be added interest to be
the conclusion is warranted that as in the case of the other Respondents
Renner did not institute contributions on behalf of the member casuals be-
cause of the court decision and that it had a longstanding practice of making
such contributions
i1 Prestige Bedding Compan. Inc. 212 NLRB 690¢ 1974)
14 It is clear that union membership cannot serve to distinguish casuals for
unit purposes. and all are either included in the unit or excluded from it
Respondents have offered no facts to show that the employment regularity of
member casuals differs from that of nonmember casuals. If evidence had
been adduced showing that member casuals are more in the nature of regular
part-time employees or have predictably regular employment while non-
member casuals work only sporadically, then a different set of conclusions
might well follow.
5 Meredith Corporation, 194 NLRB 588 (1971) The B F Go.drich (m-
pany, 195 NLRB 914 (1972); Intermounain Equipment Compani . \ 1. R B.,
239 F.2d 480 (9th Cir. 1956).
compuled Iii the itanner prescrithed In /'/ oa St'e/ ( ps-
r/au/o, 231 N IRB 65 (11977).'
('i%, It 11 S () t 1.%s
1 B. (. ( ostich & Sons. Inc.. i .ast lnd \1o ing & Stor
age, Inc.. W'n. . Rinncr (riliug (.. Inc1.. and S`scc
Storage Ic.. re cipli ls etigigAed in cliomlmlrce ss Ni
the meall inig of Sectioll 2(2) () a;ld (7) of the \t.
2. ('haliul'eur. I allllers and Helpers, local lin,n No.
I 18, is t labhor rgallllatioil ithin te ellalnlinl il Section
2(5) of' the \ci.
3. B discrlnllating aIga;inst caItsuall epnloCes s. ho are
not memnbers of I ocal 1 18 il regard to plnnlil tf pellsioii
contrihutlions to the Nes Yrkl; St;lte I atilsters ('o lllrence
Petnsiotn alld Retiremei!t I tild. Respoldetllts hasC cngaged
in unfair labor pra-;ctices ltleclinLg ctlllilerce , lhin tile
mearniti of Secttions )(I) and I) nd 216 itild (7) ot the
Act.
LJpol he lregolingL timlinis I tact. cllttlioLs it' 1at.
anid the eltire record. and llrsul l t Sectlioli t()t ol' the
:\ct. I hereb , issue 1the l oll nrig rectonlnlendld:
()RI)I R
Thele Respondenlts B. (. (o',tich & Sons, Ic'., ;ist End
NMo ing & Storage, Ic.. ni. JI Relner ('ar-ting ('o.. Inc.
alid Service Storage. Inc.. Rcheliter, Nev York, their offi-
cers. agents. uccessors. ad asigns. shall:
1. (ease and desist from:
(a) [)iscriminating against casual emplosees s ilh regard
to the pa mrent of pension funtld cntributions becaluse thes
are nt members ofC (ha ttt r. Teailsters a nd I elpers. -
cal 'nion No. 118.
(h) In an like or related miiniter inlerfcriing ith. re-
straining, or coercing emplosees ill the eercise sit their
right to enlgage in or retlraill t'ronl enigagilg in an, oir all the
activities specified i Section 7 oi the X\Ci.
2. lake the fll,)wing atfiimlaltise actitill which Is neces-
sarx Io etffecuate the policies )f the Ael:
(a) Make their casual emploces hole tfor ani loss oit
benefits they ma;l hase suftiered as a IrestIlt of' the discrimii-
nation against them hb miakinig contributlions to the New
York State Teamsters (onference Pfension ad Retirement
Fund in the manner set forth in the section of this I)ecision
entitled "The Reined."
Is See. generall. sis Plumbnlg & haIloli ( , 138 N IRB 71h i 1962) he
General Counsel asks that nterest he rdered at the rate it 9 pcrceli rather
than at the rate prescribed in Florrida Slee ( ,rp,rllrilt suprsl. on the griound
that financial events since the 1 rlda Sicl )ecision show s that its tirmula is
not adequate to make emplosees whole w hile I hbelive that there is force tis
the General (iunsel's argumentm h.i the Internil Revenue Sersice's adjusted
prime rate has not reflected current market nteresl rates since 1I?/rida Steel
was decided. I am constrained t llo Ihalt Deitossn until modified by the
Boa rd
i In the event ilo exceptions are filed a.1 prosided hs Sec 10246 of the
Rules and Regulations of the Natinal I ahor Relltionrs Board. the findings.
conclusions. and reconmended Order herein h.ll, a. prosided in Sec 102.48
of the Rules and Regulations. he adlpted hs he Boaid nd hecome it,
findings. cinclus.ions. and Order. and all ohiectlirs hercel. shall he deemed
waived for all purposes
[)IL(ISIONS OF: NATIONAL. I.ABOR RAI .ATIONS BOARI)
(b) Preserve and. upon request. make available to the
Board or its agents, fr examination and copying. all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records rel-
evant aind necessary to a determination of compliance with
paragraph (a) above.
(c) Post at their Rochester, New York, places of business
copies of the attached notice marked "Appendix."1 Copies
of said notice, on firms provided by the Regional [)irector
fir Region 3. after heing duly signed by Respondents' rep-
resentatives. shall be posted by them immediately upon re-
ceipt thereof and be maintained by them for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices are customarily posted. Reasonable steps
shall be taken by Respondents to insure that said notices
are not altered. det'aced. or covered by any other material.
(d) Notify the Regional Director for Region 3. in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
1 In the event that this Order is entiorced hy a Judgment o a United
States (,ot rt ot Appeals. the words in Ihe no.lice reading "Posted bh Order oi
the National I.abor Relaionls Board" shall read "Posled Pursuaint t .a Judg
ment ,of the Utnted States ( ourt o, Appeals f nlbrcing an O(rder of the N;a-
tional Labor Relalons oard "
APPENDIX
Notl(t I 't Ft lPIl o'lTS
PosII t BhY ORI)I R t)l IIt
NAI()ONAI LABOR RIi.AiII()NS BARI)
An Agency of the United States (;overnment
Wl wlL NOI discriminate against our casual em-
ployees with regard to pament of pension fund contri-
butions because thes are not members of (hauttffeurs.
Teamsters and Helpers I.ocal Union No. 1 18.
Wt: Wll1 NOI in an like or related manner interfere
with. restrain, of' coerce our employees in the exercise
of the right to engage in or to refrain from engaging in
any or all the actisities specified in Section 7 of' the
Act.
Wt: ull I make our casual employees whole for any
loss of' benefits they may have suffered as a result of' the
discrimination against them by making all contribu-
tions on their behalf to the New York State Teamsters
('onterence Pension and Retirement I und which we
have failed to make since October 19. 1977.
B. (. ('(tslt It & SONS. I(.: t'. \Sl I t:Ni M\ xl(; &
SIo)RA( , I N(.; WVM. J. RNNIR C(ARIN (CO.
IN( . ANt) SRVI(I STORA(G., IN( .
84