Explo, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1978

235 N.L.R.B. 918 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Explo, Inc. and Joseph Monetti
Building Material, Truck Drivers, Chauffeurs, and
Helpers, Local No. 282, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Joseph Monetti. Cases 2-
CA-14729 and 2-CB-6581
April 12, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On December 6, 1977, Administrative Law Judge
Abraham Frank issued the attached Decision in this
proceeding. Thereafter, the Respondent Union and
the Respondent Employer filed exceptions and sup-
porting briefs.
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, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found, and we
agree, that the Respondent Union violated Section
8(b)(1)(A) and (2) of the Act through its business
agent's appointing, for personal reasons, his son-in-
law and a friend as union stewards and thereby
securing for them certain employment advantages at
the expense of other employees, which advantages
resulted, inter alia, in the immediate layoff of
employee Monetti. The Administrative Law Judge,
without setting forth any specific rationale, also
found, as alleged in the complaint, that the Respon-
dent Employer violated Section 8(a)(3) and (1) of the
Act through its acquiescence in the Union's unlawful
conduct. However, the Respondent Employer, in
granting superseniority to the newly appointed stew-
ards, was simply complying with the provisions of a
lawful steward superseniority clause in its contract
with the Union.2 Furthermore, it was in no position
to contest the validity of the appointments or to
interfere with the naming of its agents. In these
circumstances, absent proof of the Respondent Em-
ployer's knowledge that in giving effect to the
I The Respondent Union has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established policy
not to overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In Building Material, Truck Drivers, Chauffeurs, and Helpers, Local No.
235 NLRB No. 127
superseniority clause it was abetting the Respondent
Union's unlawful discrimination against Monetti and
possibly other Explo employees, we see no basis for
finding that the Respondent Employer was also
responsible for the unlawful conduct. Consequently,
we find that it did not violate the act as found by the
Administrative Law Judge. We shall, therefore,
dismiss the 8(a)(3) and (1) allegations of the com-
plaint.
REMEDY
Having found above that the Respondent Union
violated Section 8(b)(1)(A) and (2) of the Act we
shall order that it cease and desist from engaging in
such conduct and that it take certain affirmative
action to remedy its violations. However, as the
Respondent Union's unlawful conduct is in essence a
willful repetition of similar conduct previously found
unlawful and as such conduct has resulted in the loss
of employment by employees, we find that its
misconduct is of an egregious nature necessitating a
broad order requiring that the Respondent Union
cease and desist from interfering in any other manner
with employees' protected rights. We shall, therefore,
include such a provision in our order.
Also we shall order the Respondent Union to
rescind the appointments of Robert Kelleher and
Donald McGrath as stewards and to make Joseph
Monetti and any other employees affected by its
unfair labor practices whole for any losses suffered
by them as a result of its unlawful conduct with
interest thereon to be computed in the manner
prescribed in F W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231 NLRB
651 (1977). 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the Respondent Union,
Building Materials, Truck Drivers, Chauffeurs, and
Helpers, Local No. 282, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, its officers, agents, and representa-
tives, shall:
1. Cease and desist from:
(a) Restraining and coercing employees by discrim-
inatorily, arbitrarily, and in violation of the duty of
282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Explo, Inc.), 229 NLRB 347 (1977), the Union was
found to have violated Sec. 8(bXI)(A) and (2) of the Act by appointing
Kelleher, the business agent's son-in-law, shop steward and by reprimand-
ing the employees who protested the appointment. The Employer was not,
however, a party to that proceeding.
3 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
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EXPLO, INC.
fair representation appointing shop stewards with
superseniority, and assistant shop stewards, thereby
attempting to cause Explo, Inc., to discriminate
against employees in violation of Section 8(a)(3) of
the Act.
(b) In any other manner restraining or coercing
employees in the exercise of rights guaranteed them
in Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act.
(a) Rescind the appointments of Robert Kelleher
as shop steward and Donald McGrath as assistant
shop steward at Explo, Inc.
(b) Restore Joseph Monetti and other affected
Explo, Inc., employees to their rightful positions on
the seniority roster at Explo, Inc., and make them
whole for losses suffered by them as a result of its
unlawful conduct in the manner set forth in the
remedy section of this Decision.
(c) Post at its business offices, union halls, and
meeting halls copies of the attached notice marked
"Appendix." 4 Copies of said notice, on forms provid-
ed by the Regional Director for Region 2, after being
duly signed by its representative, shall be posted by
the Respondent Union immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by the
Respondent Union to insure that said notice is not
altered, defaced, or covered by any other material.
(d) Forward signed copies of the Appendix to the
Regional Director for Region 2 for posting by Explo,
Inc., if willing, at its facility at 590 Zarega Avenue,
Bronx, New York.
(e) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint, insofar
as it alleges violations of the Act by Explo, Inc., be
dismissed.
4 In the event that this 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain and coerce employees by
arbitrarily, discriminatorily, and in violation of
our duty of fair representation appointing shop
stewards with superseniority, and assistant shop
stewards, thereby attempting to cause employers
to discriminate against employees in violation of
Section 8(a)(3) of the Act.
WE WILL NOT in any other manner restrain and
coerce employees in the exercise of rights guaran-
teed them in Section 7 of the Act.
WE WILL rescind the appointments of Robert
Kelleher as shop steward and Donald McGrath
as assistant shop steward at Explo, Inc.
WE WILL restore Joseph Monetti and other
affected Explo employees to their rightful posi-
tions on the seniority roster at Explo, Inc., and
make them whole for any losses they may have
suffered as a result of our unlawful conduct in
appointing Kelleher and McGrath to be respec-
tively a shop steward and assistant shop steward.
BUILDING MATERIAL,
TRUCK DRIVERS,
CHAUFFEURS, AND
HELPERS, LOCAL No.
282, INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
DECISION
ABRAHAM FRANK, Administrative Law Judge: The
charges in this consolidated case were filed on February 24,
1977, and the complaint, alleging violations of Section
8(a)(1) and (3), as to Respondent Employer, and 8(bX)(1)(A)
and (2) as to Respondent Union, issued on April 22, 1977.
The hearing was held on July 6-7, 1977, at New York, New
York. Respondent Union filed a brief, which has been duly
considered.
Explo, Inc., a New York corporation, with its principal
place of business at 590 Zarega Avenue, Bronx, New York,
is engaged in the business of wholesaleing and distributing
explosives. I find Respondent Explo, Inc., is engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
Respondent Union, Building Material, Truck Drivers,
Chauffeurs, and Helpers, Local No. 282, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the
meaning of the Act.
The issue in this case is whether Respondent Union
violated the Act and caused Respondent Explo to violate
the Act by appointing Robert Kelleher shop steward with
superseniority at Respondent's Explo's Bronx facility, and
Donald McGrath assistant shop steward, thereby causing
Respondent Explo to deny Joseph Monetti and possibly
other Explo employees employment to which they other-
wise would be entitled.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Prior Decision
The instant case is a sequel to a Decision and Order of
the Board reported at 229 NLRB 347 (1977). The same
Respondent Union, the same Employer, and the same
employees are involved. In that case the Board affirmed
Administrative Law Judge John M. Dyer's Decision that
Respondent Union had violated Section 8(b)(lXA) and (2)
by appointing Robert Kelleher shop steward for Explo's
employees on February 9, 1976. The Board adopted
Administrative Law Judge Dyer's Order that such appoint-
ment be rescinded and that the employees of Explo,
particularly Arthur Munson and Joseph Monetti, be made
whole for any loss of pay suffered by them by reason of
Respondent Union's discrimination against them.
Administrative Law Judge Dyer's Decision reviews in
pertinent detail the history and background facts with
respect to the employment of Explo's employees, the
seniority status of various employees, and Respondent
Union's efforts to appoint Robert Kelleher, the son-in-law
of Respondent Union's business agent Jack Dee, shop
steward at Explo's Bronx facility. Briefly, Kelleher was
appointed shop steward at Explo on July 31, 1975. Under
the Union's contract with Explo, the shop steward enjoys
superseniority. The appointment of Kelleher reduced the
job opportunities of Monetti and Munson, who were low
on the seniority list, but higher than Kelleher. On August 5,
1975, a majority of Explo employees protested to the
Union's executive board the removal of their prior steward
Bell, and the appointment of Kelleher. The employees'
protest was set for hearing the following September.
However, before the hearing took place, Dee rescinded the
appointment of Kelleher and reappointed Bell. The Explo
employees did not pursue the matter further.
In November 1975, Monetti accepted a nomination to
run for office as a business agent on a slate in opposition to
the incumbent union officers. The incumbents won. There-
after, although Dee had awarded Monetti seniority over
employee Donald McGrath the previous March, Dee
informed the Company that he had made a mistake and
offered the Company the option of determining seniority as
between these two employees. The Company declined the
offer. On December 31, 1975, Dee tossed a coin. Monetti,
who had boycotted the coin tossing gamble, won and
retained his seniority. On January 3, 1976, Kelleher filed
charges against Explo employees Mooney, Howie, and
Munson on the ground that they had violated the union
bylaws by not attending union meetings. On the same date
McGrath filed charges against Bell alleging that he had not
been performing his steward duties. A hearing was held
before the Union's executive board on January 29, 1976.
Apparently, the hearing was poorly conducted with consid-
erable name-calling and shouting and little, of anything,
offered in the way of probative evidence. During the course
of the hearing Bell resigned his stewardship and his
resignation was accepted by the Union several days later.
On February 19, 1976, Mooney, Howie, and Munson
were informed that they had violated the Union's constitu-
tion by failing to attend union meetings and were repri-
manded and directed to be more attentive to their duties.
Thereafter, Mooney, Howie, and Munson appealed the
decision of the executive board to the joint council. Dee
asked Howie to drop the appeal and Howie agreed to do so
if Dee would withdraw the charges. At the time of the
hearing before Judge Dyer the matter had not been
resolved.
On February 9, 1976, Dee again appointed Kelleher shop
steward. The result was that Monetti was laid off and
Munson moved to the status of an extra, substituting for
Bell who was on leave. Both Monetti and Munson
vigorously protested Dee's action. Bell retired in June,
Munson became a regular employee, and Monetti became
a regular substitute. Absent Kelleher's appointment, Mon-
etti's employment would have been that of Munson.
The Board affirmed Administrative Law Judge Dyer's
conclusion that the charges, the hearing, and the reprimand
amounted to a strategem to intimidate the Explo union
members. The Board also affirmed Judge Dyer's further
conclusion that the appointment of Kelleher in February
as shop steward with superseniority was arbitrary, invidi-
ous, and discriminatory and violated the Union's duty of
fair representation to the Explo union members.
The Instant Case
The record in the instant case reveals the following:
On December 15, 1976, Dee rescinded the appointment
of Kelleher as shop steward at Explo. On that date Explo
had four regular employees: Stan Howie, Dennis Mooney,
Arthur Munson, and Joseph Monetti, with seniority in that
order. Four other employees, Kelleher, McGrath, Ken
Steiner, and Hank Avelin claimed seniority rights. The
Union's contract with Explo, which was in the process of
renegotiation at this time, provided that seniority would
not be deemed breached if a laid-off employee was rehired
within I year after his layoff.
Explo's payroll records show that Kelleher worked a
substantial number of weeks in 1976 and 1977. McGrath
worked 3 weeks and I day in 1976 and I week and 1 day in
the first quarter of 1977. Steiner worked I day in the fourth
quarter of 1976 and I day in the third quarter of 1977.
Avelin worked I week in the first quarter during the period
ending February I, 1976, and I day in the fourth quarter of
1976. He did not work in 1977.
On December 17, 1976, Dee held a meeting with the
Explo employees to discuss contract negotiations and the
selection of a shop steward. Although no employee of
Explo had previously served on the negotiating committee,
Dee appointed Howie and Mooney to be members of the
committee. On this occasion Monetti protested the right of
Kelleher, McGrath, Steiner, and Avelin to participate in a
vote for shop steward. Monetti told Dee that, according to
the NLRB ruling, Kelleher, McGrath, or any friends and
relatives of the Union could not be shop steward at Explo.
Dee responded, "Bullshit." Monetti or Howie also told Dee
that the employees had voted for Mooney to be shop
steward. Dee replied that they could be brought up on
charges by the Union's executive board or the Union
would bring them up on charges.
On December 20, 1976, the date scheduled for the
meeting with Respondent Explo to negotiate the contract,
Howie and Mooney told Dee they did not want to be on
the committee. Dee told Howie that Dee wanted Steiner
and Avelin to work one day at Explo and to be paid by
920
EXPLO, INC.
Explo for a day's work. Dee said that, if Howie and
Mooney did not give Steiner and Avelin the opportunity,
Howie and Mooney would be "screwing them off the list-
off that seniority list." Howie and Mooney agreed to serve
on the negotiating committee, thereby providing a day's
work for Steiner and Avelin.
On December 22, 1976, Dee, held another meeting at
Explo's premises. Present were the eight employees who
claimed seniority at Explo. The four regular employees
protested the meeting. Dee called a recess, then adjourned
the meeting.
On or about January 7, 1977, the Union's executive
board decided that the four junior employees at Explo had
a position on the seniority list. The decision of the
executive board was approved by the general membership
in a meeting on January 27, 1977.
On February 8, 1977, Dee held still another meeting with
the eight Explo employees. This meeting was scheduled for
the purpose of nominating and electing a shop steward.
Howie protested holding the election because he did not
think it was right for the four junior employees to come in
and manage the four men who worked steady. Neverthe-
less, the election was held. Kelleher nominated McGrath.
Monetti nominated Howie. The result was a tie, 4-4. Dee
said he would take it back to the lawyers.
On February 23, 1977, Dee approached Monetti at the
Explo facility and told Monetti that the Union had decided
to put Kelleher back as shop steward. Monetti said, "I
guess I'll go back to the NLRB." Dee replied, "I guess so."
On February 24, 1977, Dee notified the Explo employees
that there would be a meeting the next day, February 25, at
which the employees could vote to oppose Dee's appoint-
ment of Kelleher as shop steward and McGrath as assistant
shop steward.' Monetti did not attend that meeting. The
vote was 4-3 to approve the appointments.
As a consequence of the Union's appointment of Kelleh-
er as shop steward with superseniority, Respondent Explo,
on February 24, 1977, placed Monetti fifth on the seniority
list rather than fourth. Since that date Monetti has not
worked regularly for Explo.
On March 17, 1977, Howie, Mooney, Munson, and
Monetti protested to the executive board the action of Dee
in permitting men no longer employed at Explo to vote for
shop steward, the installation of Kelleher as shop steward,
and the naming of McGrath as assistant shop steward, a
position not theretofore known in the Union.
Conclusions
The question before me is whether Respondent Union
deliberately repeated its unlawful conduct of February 9,
1976, by reappointing Kelleher shop steward on February
24, 1977, and McGrath assistant shop steward, after
rescinding Kelleher's appointment on December 15, 1976.
The sequence of events set forth above make it clear that
Respondent Union, rather than complying with the dcci-
I The assistant shop steward takes the place of the shop steward in the
latter's absence.
2 The new contract, eliminating the restriction on senionty, although
retroactive to July 1, 1976, was not yet in effect.
3 Dairylea Cooperative Inc., supra; Pattern Makers' Association of Detroit
and Vicinity, Pattern Makers' League of North America, AFL-CIO, 233
NLRB 430 (1977).
sion of Administrative Law Judge Dyer, immediately took
steps to evade that decision while going through the
motions of compliance. On December 17, 1976, Dee
insisted on appointing Howie and Mooney members of the
Union's negotiating committee although they were reluc-
tant to be absent from their jobs and were unskilled in
contract negotiations. Dee's purpose, as stated to Howie,
was to provide a day's employment at Explo for Avelin and
Steiner and thereby protect their seniority status. 2 As
employees with seniority status, Avelin and Steiner would
be eligible to vote for shop steward. Threatening the
regular employees with new charges under the Union's
constitution if they elected their own shop steward, Dee
conducted an election on February 8, 1976, that resulted in
a predictable tie vote. Dee then appointed Kelleher shop
steward and McGrath assistant shop steward, a position
theretofore unknown at Explo. Purporting to be following
Administrative Law Judge Dyer's recommended Order,
Dee offered the Explo employees an opportunity on
February 25, 1977, to oppose or veto his appointments.
With the four junior employees voting, Dee could be
reasonably assured that no such veto would be forthcom-
ing even if Monetti, discouraged by the Union's tactics,
had decided to cast his vote against the appointments.
Respondent Union contends that Kelleher was elected
shop steward by the Explo employees. Respondent also
argues that Dairylea Cooperative Inc., 219 NLRB 656
(1975), which permits limited superseniority for shop
stewards, is an exception to the doctrine of fair representa-
tion. Respondent Union is wrong on both counts. Dee
testified that there was to be no election following his
appointments of Kelleher and McGrath, "that any opposi-
tion to the nomination, this is where to make it, the date
(February 25, 1977)." Contrary to Respondent Union,
Dairylea does not grant a union carte blanche authority to
appoint or elect a union steward without regard to the
discriminatory impact on other unit employees. In Dairylea
the Board recognized that the presence of a shop steward
on the job works to the benefit of all unit members. It is a
necessary concomitant to a union's statutory responsibility
to effectively administer a collective-bargaining agreement.
In these circumstances the Board has held that the shop
steward's superseniority for purposes of layoff and recall is
presumptively valid and the discriminatory impact on
other unit employees incidental to their general benefit. 3
The presumption is rebuttable. A union is not a fiefdom
from which benefits and favors may be awarded arbitrarily
and discriminatorily to friends, in-laws, and associates of
union officials in derogation of employee representation
rights.4
Traditionally, the position of shop steward at Explo had
been held by an employee of the highest seniority, thereby
avoiding any discrimination against other unit employees.
Dee's efforts to guarantee a job for Kelleher began in 1975
when jobs became scarce or nonexistent in his jurisdiction.
There is no showing that Kelleher or McGrath possessed
4 See Allied Supermarkets Inc., 233 NLRB 535 (1977), where the Board
noted in fn. I that even lawful superseniority may be abused and made
unlawful where a union official replaces a steward with the Union official's
brother-in-law prior to a massive layoff.
921
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exceptional qualifications for the position of steward at
Explo.
The background evidence in the prior case and the
evidence in the instant case persuade me that Dee discrimi-
natorily, arbitrarily, and in violation of the Union's duty of
fair representation used his union position to assure job
security for Kelleher and McGrath at the expense of
Monetti and possibly other Explo employees. In this
respect he was aided and abetted by the Union's executive
board, which approved his actions.
I find no merit in Respondent Union's argument that it
was complying with Administrative Law Judge Dyer's
decision by submitting the appointment of Kelleher and
McGrath to the Explo employees to veto, if they so desired.
In the first place, there can be no partial compliance with
an Administrative Law Judge's decision and recommended
Order. That portion of Administrative Law Judge Dyer's
recommended Order, which requires that employees vote
for the selection of a shop steward, was not adopted by the
Board. In the second place, as indicated above, Respon-
dent Union's alleged partial compliance was not in good
faith, but a patent ruse to accomplish indirectly what
Administrative Law Judge Dyer had directly forbidden.
Accordingly, I find that Respondent Union by appoint-
ing Kelleher shop steward and McGrath assistant shop
steward at Explo Inc. on February 24, 1977, restrained and
coerced the employees at Explo within the meaning of
Section 8(bX)IXA) of the Act and violated Section 8(bX2)
of the Act by causing Respondent Explo to discriminate
against Monetti and possibly other Explo employees within
the meaning of Section 8(aX3) of the Act.
I find that Respondent Explo, Inc., by acquiescing in
Respondent Union's unlawful conduct, discriminated
against Monetti and possibly other Explo employees in
violation of Section 8(aX3) and (1) of the Act.
[Recommended Order omitted from publication.]
922