Brewery Drivers Local 133, Teamsters

National Labor Relations Board - Board Decisions

Jun 8, 1971

190 N.L.R.B. 766 (N.L.R.B. 1971)

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brewery Drivers, Chauffeurs & Helpers Local Union
No. 133, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers
of America (St. Louis Stag Sales, Inc.) and Tom J.
Dubis. Case 14-CB-2070
June 8, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On February 11, 1971, Trial Examiner Lloyd Bu-
chanan issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the Gen-
eral Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and Respondent filed
an answering brief in support of the Trial Examiner's
Decision.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, except as modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner as modified below and hereby or-
ders that Respondent, Brewery Drivers, Chauffeurs &
Helpers Local Union No. 133, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, its officers, agents,
and representatives, shall take the action set forth in the
Trial Examiner's recommended Order, as so modified:
1. Delete paragraph 1 (b) and reletter paragraphs 1
(c) and (d) as 1(b) and (c).
2. Add the following as paragraphs 2(a) and (b), the
present paragraphs 2(a), (b), and (c) being relettered as
2(c), (d), and (e):
"(a) Make whole Tom J. Dubis for any loss of earn-
ings suffered as a result of the discrimination against
him in the manner set forth in this Decision."
"(b) Notify St. Louis Stag Sales, Inc., in writing, that
it has no objection to Dubis' employment and will not
discriminate against him in referral for employment
pursuant to its hiring hall procedures, and mail a copy
of such notice to Dubis."
3. Substitute the attached notice for the Trial Ex-
aminer's notice.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT inform any individual seeking
employment that he cannot be put on the job refer-
ral list unless he is in the Union.
WE WILL make whole Tom J. Dubis for any
loss of earnings suffered as a result of the discrimi-
nation against him.
WE WILL notify St. Louis Stag Sales, Inc., St.
Louis, Missouri, and mail copies of such notice to
Tom J. Dubis, that Tom J. Dubis will have full use
of the hiring hall facilities without discrimination
in connection with referrals for employment.
WE WILL NOT cause or attempt to cause St.
Louis Stag Sales, Inc., or any other employer to
discriminate against employees in violation of Sec-
tion 8(a)(3) of the Act.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
Respondent filed no exceptions to the Trial Examiner's Decision
We find merit in the General Counsel's exceptions to the Trial Ex-
aminer's failure to provide either a make-whole remedy for the loss of
earnings to Tom J Dubis resulting from Respondent's unlawful refusal to
refer, or notification to the Employer that Dubis will have full use of Re-
spondent's referral facilities without discrimination Local Union 136 Mus-
kingum Valley District Council of the United Brotherhood of Carpenters and
Joiners ofAmerica, AFL-CIO, and its Agent Harold Jackson (Frank Vlack
Company), 165 NLRB 1040 We shall order Respondent to make Dubis
whole for any loss of earnings suffered by him as a result of the discrimina-
tion against him Such payment shall be equal to the amount of wages he
would have earned but for the discrimination, as computed in accordance
with the Board's formula in F W Woolworth Company 90 NLRB 289,
together with interest thereon at the rate of 6 percent per annum, as pro-
vided in Isis Plumbing & Heating Co., 138 NLRB 716
190 NLRB No. 141
BREWERY DRIVERS,
CHAUFFEURS & HELPERS
LOCAL UNION No.
133, AFFILIATED WITH
INTERNATIONAL
BROTHERHOOD
OF TEAMSTERS,
CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
BREWERY DRIVERS LOCAL 133, TEAMSTERS
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 210 North 12th Boulevard, Room 448, St.
Louis, Missouri 63101, Telephone 314-622-4167.
TRIAL EXAMINER'S DECISION
LLOYD BUCHANAN, Trial Examiner: The complaint
herein (issued August 14, 1970; charge filed July 7, 1970)
alleges that the Union has violated Section 8(b)(2) of the
National Labor Relations Act, as amended, 73 Stat. 519, by
failing and refusing to refer or approve Dubis for employment
at the Company, for reasons other than his failure to tender
periodic dues and initiation fees; and Section 8(b)(1)(A) of the
Act by said acts and by informing Dubis that he could not
be put on the job referral list unless he were in the Union The
answer denies the allegations of violation.
Opened on October 5, 1970, at St. Louis, Missouri, the case
was tried before me on October 6. Counsel were heard in oral
argument at the conclusion of the trial. Briefs have filed by
the General Counsel and the Union.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT (WITH REASONS
THEREFOR) AND CONCLUSIONS OF LAW
I THE COMPANY'S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's status as a Missouri
corporation, the nature and extent of its business as a whole-
sale seller and distributor of beer, and its engagement in
commerce within the meaning of the Act are admitted. I find
and conclude accordingly. I also find and conclude that, as
admitted, the Union is a labor organization within the mean-
ing of the Act.
It THE ALLEGED VIOLATION OF
SECTION 8(B)(2) AND 8(BE(l)(A)
The complaint cites "a contractual obligation and estab-
lished custom"; but, quite correctly, it does not cite these as
violative. Violation is alleged to have occurred in connection
with certain activities of the Union vis-a-vis Dubis. Thus
while various provisions of the contract have been cited, it is
not claimed nor does it appear that these are themselves
violative or more than valid provisions for assignment to jobs
according to seniority and regardless of union membership.
Requirements mentioned during the trial that requests for
assignment be made to the Union by telephone early in the
morning and that notice by an employer that is has employed
an applicant be given to the Union are likewise not under
attack. Neither is any other provision of the contract cited as
violative. As for "established custom," we have no proof of
that beyond what may be regarded as an admission in the
answer but, again, not alleged to be violative. The question
767
simply is whether, in the face of a provision and practice
which empowered and therefore required the Union to refer
job applicants, there has been unlawful restraint on Dubis
and failure and refusal to refer or approve him for employ-
ment at the Company.
Dubis, a high school teacher, first applied to the Union for
summer employment in 1967. Over the telephone he asked
someone at the Union Hall to place him on the hiring list; and
the next day the Hall called him and referred him for a job
with this company. He worked 2 or 3 days a week that
summer for a total of 40 to 45 days. Sometimes January,
president of the Company, told him to return the following
day; at other times, January called him at home for further
employment. Dubis did not notify the Union of such calls.
January explained that the Company directs new applicants
to the Union and tells casual employees to report to the
Union Hall when, after a few days' work, they are no longer
needed.
When sent to the Company, Dubis had reported to January
and told him that the Union had sent him out as a driver.
January thereafter told him that he (Dubis) would not have
to communicate with the Union: January would call him at
home and "rehire" him from time to time. Dubis did not join
the Union in 1967: He testified that he did not think he
worked enough time to be required to join.
Employed elsewhere in 1968,' Dubis called the Company
about the end of May 1969 or early in June for summer work.
January told him to call the Union Hall and said that he
would call and ask the Union to send Dubis out. The latter
did call the next day and asked that his name be placed on
the Union's work list; and that same afternoon the Union
called Dubis and sent him to the Company, where he went
to work immediately. Again the practice as here indicated
was for the applicant, after many months when he was not
employed in the industry, to call the Union for referral for
initial employment but not thereafter.
During the summer of 1969 Dubis worked for the Com-
pany full time, 5 days a week. Pursuant to the contract he
joined the Union and paid initiation fees and dues.' Certain
differences arose between the Union and Dubis about August
1969, and in September he was fined $100; he has not paid
the fine.
Despite the General Counsel's insistence at the trial, aban-
doned in his brief, and the assistance or advice which he
received in this connection, the reason for the fine is quite
irrelevant. (A reference of mine to "condition other than that
he tendered dues and initiation fees" was incorrectly tran-
scribed, but it requires no formal correction since it is clearly
contrary to what I several times stated on the record concern-
ing this item.)
In August 1969, while Dubis and Girard, the Union's
secretary-treasurer, were arguing about the matter which pre-
sumably led to the fine, the latter threatened: "Well, Dubis,
' It appears that Dubis also worked for the Company for 3 days during
Christmas week in 1967 and for 3 days during the same period in 1968
Without specific recollection, but based on his knowledge of company prac-
tice, January testified that the Company must have checked with the Union
before employing Dubis during the short but busy holiday season The
Union maintains that it has no record concerning Dubis (and therefore his
employment in the industry) prior to 1969 The requirement and the prac-
tice are sufficiently established by the contract and the events in 1969
' Despite the contract provision which declares that all who have been
employed in related classifications with one employer for less than 1 year
are class C employees and are given seniority rights after 5 consecutive
workdays of employment, the provision has been interpreted by the parties
to mean that, after 5 consecutive days of employment, employees move into
class C with seniority rights The difference does not affect the instant
situation Our concern is with the question of application and referral
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you go ahead and finish up the summer , there is nothing we
can do about it this year ... you can finish up this year but
we'll see to it that you don 't get to work next year ." This was
received as "background " and presumably to explain the
alleged violations in 1970 which , as we shall see, require no
background explanation by the General Counsel . With proof
of restraint and refusal to refer , it is incumbent on the Union
to explain and justify its acts.
We come now to the events alleged as violative . Whether
or not Dubis ' employment might lawfully have been affected
by a strike in the industry which commenced about May 21,
1970, and continued until June 26, had he been referred by
the Union and put to work , may be left for consideration at
another time . Our concern (if repetition here will be more
persuasive than at the teal) is whether there was an unlawful
restraint or an unlawful refusal to refer.
In the latter part of May 1970' Dubis called January, asked
concerning work for the summer , and was told that , as soon
as Dubis was ready , January would call the Union Hall and
ask that they send Dubis out. When Dubis remarked that he
had not paid the fine imposed the year before , January told
him to straighten that out first.
About a day later Dubis called and asked Taylor , the union
president , whether he could come in , pay the fine , and go to
work . Taylor replied that he did not know : Dubis would have
to speak with Girard . Two or three days thereafter Dubis
called and asked Girard whether he could come in, pay the
fine, and go to work . Girard replied that a strike was "in
process" and that he could not be referred until it was settled;
and then added that Dubis "would have to appear before the
executive committee as to whether [he] would be able to be
allowed to pay the fine and be reinstated in the union." When
Dubis called Girard again in the latter part of June concern-
ing his appearing before the Executive Board , Girard told
him in line with his threat in 1969, that he was not wanted
and could not get back into the Union.
Were it claimed that Girard here connected payment of the
fine, but not referral for work (which was Dubis' concern),
with reinstatement in the Union , we need not rely on a con-
trary interpretation and inference , however reasonable. Du-
bis' understanding that when Girard told him that he could
not get back into the Union he meant that he could not go
to work either , as Girard had threatened, is a fair and natural
construction of what Girard was telling him, particularly
since it was clear that Dubis had called at the beginning of
the summer season and wanted to go to work . Further, in a
pretrial affidavit which he adopted at the trial , Girard de-
clared.
You are not in good standing if you have an outstanding
fine that hasn 't been paid and Dubis cannot renew his
membership until he pays the fine . Dubs' question of me
on the telephone was to getting back into the Union,
however he cannot go back on the casual out-of-work list
until he renews his membership . Once a man is a mem-
ber of the Union he has to stay in good standing in order
to be referred out of the Hall. We would not refer Dubis
until he gets in good standing by paying his fine, but we
are willing to accept payment of his fine and reinstate
him and then dispatch him out . We dispatch casuals
prior to them becoming members but once they have the
31 days in and become members they have to stay in
good standing to get dispatched out of the Hall.
If, as Girard testified , Dubis never called in the morning
to be placed on the out-of-work list , the latter had already
called and been told by Girard that placement on the list and
referral were conditioned on his payment of the fine and
reinstatement in the Union after appearance before the Ex-
ecutive Committee . It was thus futile for Dubis to call in the
morning for assignment without first meeting the unlawful
conditions which Girard imposed . As for the alleged neces-
sity for calling in the morning, we recall that Dubis had never
been required to do this: he had been referred when he called
and after a request by the Company.
I have not overlooked the contract provision in this con-
nection , specifically , article III , sec. 2 , which reads in part as
follows:
1.-Selection of applicants for referral to jobs shall be on
a non-discriminatory basis and shall not be based on or
in any way affected by union membership , by-laws,
rules, regulations , constitutional provisions , or any other
aspect or obligation of Union membership , policies, or
requirements.
Girard 's reasons and refusal to refer Dubis violated the ex-
press terms of the contract ; they also violated Section
8(b)(1)(A) and (2) of the Act, and I so find and conclude.
The unlawful conditions imposed by Girard were repeated
and emphasized by Grossmann , the Union 's financial secre-
tary. Dubis called and spoke with Grossmann on July 7,
asking that he be placed on the referral list even though he
was not in the Union . Grossmann replied that he could not
put Dubis on the referral list unless he were a union member,
and that he could not get back into the Union .' Grossmann
at the trial adopted an affidavit which he had previously
executed and in which he had declared , inter alia , as follows:
Dubis then said to me, "Can I get back on the referral
list in the morning?" I answered , "Not until you get
straight with the Local." Dubis then said again, "You
mean I can't get back on the referral list ?" I again said,
"Not until you get straight with the Local ." My refer-
ence to "get straight with the Local " had to do with the
$100 fine that Dubis got back in September , 1969, at
which time he was told that he could not reinstate in the
Local until he paid that fine. Dubis has never paid the
fine so he cannot reinstate and he cannot go on the
out-of-work list and be referred out for work until he has
gotten back in good standing with the Local by paying
his fine.
In connection with the fine, we have further evidence of the
Company 's understanding and interpretation of the contract,
as requiring union referral , in January 's statement that he
thought that Dubis had to pay the fine if he wanted to work;
and that if Dubis was short of money, he would help him.
Describing in detail the practice of men calling the Union
early each morning for referral , Grossmann did not suggest,
indeed he denied to Dubis, that the latter could be put on the
referral list if he called early in the morning. To the extent
that the Company could make its own arrangement with
casuals off the street and then notify the Union, this was done,
as with Dubis previously with the Union's approval. The
contract provides as follows in article III:
Section 1 .-The parties recognize that the Union is in
a position to be of assistance to the Employer in recruit-
ing new help . The Employer , therefore, agrees to notify
the Union whenever additional employees are needed
and also whenever new employees are hired , and the
Employer further agrees to give any applicants furnished
' In view of Dubis' discussion with January , his call to the Union, and his ' Aside from the violation here, Grossmann now confirmed and sup-
second call in which reference was made to the strike now current , this was ported the understanding of all concerned and shed further light on Girard's
apparently before the strike commenced refusal to refer on May 26
BREWERY DRIVERS LOCAL 133, TEAMSTERS 769
by the Union every consideration consistent with the
provisions of the National Labor Relations Act as
amended.
While the practice was loose, every hiring, whether ini-
tiated at the Company or at the Union, called for the approval
by the latter. If the Company failed to abide by the require-
ments at any time,' the issue was at this time in 1970 clearly
drawn and the Union would be aware of any violation of such
requirements.
The Union's disapproval in Dubis' case was quite clear; as
was the emphasis throughout on prior referral. That the
Company thus recognized its obligation under the contract
and abided by such procedure is seen in January's statement
to Dubis concerning the procedure to be followed when the
latter applied in May 1970.
The provision for notice to be given by an employer when
new employees are hired is in conjunction with, and in addi-
tion to, the earlier notice to be given whenever additional
employees are needed. It is not a disjunctive substitute for the
required prior notice, but a union bookkeeping aid for listing
after an employee is hired-necessary for membership and
dues-paying requirements and for such other purposes as may
seem fit to the Union. In keeping with the transfer to the
Union of the initial right to act when employees are needed
is the limitation on such transfer expressed in the following
provision, article III, sec. 2, 2, of the contract:
The Employer retains the right to reject any job appli-
cant referred by the Union except for the seniority rights
specified in Section 9 of Article VI.
Finally, it is clear that the Union similarly interpreted the
contract and acted thereon. Girard declared:
The Local 133 contract with St. Louis Stag contains a
referral system which requires that employers obtain all
of their employees through the Local referral system.
When the Employer calls us for men, if we are not able
to fill the request the Employer is permitted to hire off
of the street but as a practical matter it is very seldom
that we are not able to fill requests.
The allegation here is of violation of Section 8(b)(1)(A). I
find and conclude that it has been sustained.
The violations found herein are no less such if, as the
answer alleges, all of the Union's actions herein "were under-
taken in the normal conduct of the affairs of their business."
If this may be taken as an admission of a violative custom,
it does not add to the violation already found or to the appro-
priate remedy. We recall also that such custom is not alleged
to be violative.
Upon the foregoing findings of fact, conclusions of law, and
' We recall that January cited company practice in connection with Du-
bis' employment at Christmas time in 1967 and 1968
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended-
ORDER6
Respondent, Brewery Drivers, Chauffeurs & Helpers Local
Union No. 133, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Informing any individual seeking employment that he
cannot be put on the job referral list unless he is in the Union.
(b) Failing or refusing to refer for employment any appli-
cant for reasons other than failure to tender periodic dues and
initiation fees uniformly required as a condition of acquiring
or retaining membership in the Union.
(c) Causing or attempting to cause St Louis Stag Sales,
Inc., or any other employer to discriminate against employees
in violation of Section 8(a)(3) of the Act.
(d) In any other manner restraining or coercing employees
in the exercise of the rights guaranteed in Section 7 of the Act,
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of the at-
tached notice marked "Appendix."' Copies of said notice, on
forms provided by the Regional Director for Region 14, shall
be posted by the Union, after being duly signed by its repre-
sentative, immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its members are
customarily posted. Reasonable steps shall be taken by the
Union to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Promptly furnish to the Regional Director for Region
14, copies.of the Appendix for posting, the Company willing,
at its place of business in St. Louis, Missouri.
(c) Notify the Regional Director for Region 14, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.,
In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and order , and all objections thereto shall
be deemed waived for all purposes
' In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN OR-
DER OF THE NATIONAL LABOR RELATIONS BOARD "
In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified to read "Notify
the Regional Director for Region 14, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith "