F & C Transfer Co., Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1985

277 N.L.R.B. 591 (N.L.R.B. 1985)

F & C TRANSFER CO. 591
F & C Transfer Co., Inc. and Ray Prieto and Paper
Products and Miscellaneous Drivers, Ware-
housemen and Helpers , Local 27, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Party
to the Contract. Case 22-CA-13361
20 November 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 117 June 1985 Administrative Law Judge
Steven Davis issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
the General Counsel filed cross-exceptions and a
supporting brief, and the Respondent filed a brief
in response to the General Counsel's cross-excep-
tions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, i and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, F & C
Transfer Co., Inc., Jersey City, New Jersey, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order.
The complaint alleges that Respondent (a) threatened
its employees with discharge to discourage them from
joining Paper Products and Miscellaneous Drivers,
Warehousemen and Helpers, Local 27, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Union), (b) afforded higher
wages and greater benefits to employees who are mem-
bers of the Union than it has afforded to employees who
are not members of the Union thereby rendering unlaw-
ful assistance to the Union and encouraging membership
in the Union, (c) imposed onerous and more rigorous
terms and conditions of employment on employee Felix
Ortega by assigning him to more arduous and less agree-
able work, and (d) discharged its employee Ray Prieto
because he attempted to, or did, join, support, or assist
the Union.
Respondent's answer denied the material allegations of
the complaint, and on 7 February 1985, the case was
heard before me in Newark, New Jersey.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent , a corporation having an office and place
of business in Jersey City, New Jersey , has been engaged
in the interstate and intrastate transportation of freight.
During the past year, Respondent derived gross revenues
in excess of $50,000 from the provision of interstate
freight transportation services . Respondent admits and I
find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), eni'd. 188 F 2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings
Gary A . Carlson, Esq., for the General Counsel.
Joel Spivak, Esq . (Solotoff & Spivak, Esq.), of Great Neck,
New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on
a charge and a first amended charge filed by Ray Prieto
on 26 July and 28 September 1984, respectively, a com-
plaint was issued on 28 September 1984 against F & C
Transfer Co., Inc. (Respondent).
II. ALLEGED UNFAIR LABOR PRACTICES
Respondent has had a collective-bargaining agreement
with the Union since at least 1981. Their current con-
tract, which runs from October 1982 to September 1985,
provides for coverage of employees including all chauf-
feurs, helpers, and warehousemen. The contract also
contains a union-security clause requiring membership in
the Union after 30 days.
Respondent's drivers pick up bonded and unbonded
freight. Bonded freight are goods for which import
duties have not yet been paid. In order to receive such
freight, the driver must show a bond card to U.S. Cus-
toms agents who are the custodians of the merchandise.
In order to obtain a bond card, the driver must present
the U.S. Customs Service with a letter from his employ-
er verifying his employment and requesting that he be
bonded, and he must complete an application. A. bond
card is issued by the Customs Service about 2 months
later.
277 NLRB No. 71
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The Facts
1. The alleged discrimination against Ortega and
Prieto
Ray Prieto has been employed by Respondent since
June 1981 as a truckdriver, and immediately became
aware that the Union represented certain drivers.
In July or August 1981, Joseph Cipollal called Preito
into his office, and told him that he learned that he
wanted to join the Union, and warned that if he joined
the Union he would have to lay him off or discharge
him. Cipolla added that he could not afford to pay ev-
eryone union wages . Prieto replied that he wanted better
pay and greater benefits. Cipolla said that he would give
Prieto a raise and promised that things would "work out
better" for him in the future. He received a raise of $25
per week a couple of months later.
In mid-March 1984, driver Felix Ortega joined the
Union.2 For about 1 week thereafter, Ortega was as-
signed to perform work on the platform, loading and un-
loading trailers . Ortega, who did not object to the assign-
ment, did not do any driving that week and his regular
vehicle was assigned to Prieto. Employees testified that
generally, the drivers, including Ortega, help load and
unload their vehicles, and all drivers work on the plat-
form if they are required to unload the trucks at the end
of the day.3 Prieto testified that on arriving with a full
trailer the driver unloads it, and if they were not busy
they would load the pallets. Driver Holowell stated that
generally drivers like to be on the move, and not in one
place for a full day, and that they do not like to do
manual work, but if it is part of the job, they recognize
that they must do it. In commenting on the difficulty of
the platform work, Holowell stated that such work was
harder than driving if one had to unload a 40-foot trailer
alone.
Following his week on the platform, Ortega was reas-
signed to driving duties and given a rental vehicle to op-
erate, which required manual loading and unloading of
its cargo.4 After about 1 week he was reassigned to his
regular vehicle.
About 1 week after Ortega joined the Union, union
representatives visited Respondent's premises on 22
March 1984. They gave applications to Prieto and other
nonmembers . Prieto completed an application and gave it
to the agent. The representative then spoke in private
with Cipolla and then Cipolla and the agents told the
men that they must have a bond card in order to obtain
union membership.5 Only I nonmember, Benjamin
i It was stipulated that Cipolla is an owner of Respondent, and admit-
ted that he is its dispatcher
2 His union application is dated 16 March.
3 Prieto stated that although drivers regularly load and unload vehi-
cles, they do not do so continuously, for I week at a time as Ortega did.
However, Preito acknowledged that upon his return from a 7-month
layoff in January 1984, he worked on the platform for 3 weeks before he
resumed his driving duties.
4 Prieto asserted that the rental vehicle was unsafe, but was unable to
specify what was wrong with it He said that it may not have had signal
lights and he did not think the wipers were working The only improper
equipment that Presto testified to was that it did not have mud flaps
6 That was the first time that Prieto heard of such a requirement
Bowman, had a bond card at that time, and he was ac-
cepted for membership.'
There is some confusion as to what occurred next
Prieto first testified that he was threatened by Cipolla in
late March after the 22 March meeting, and then Cipolla
gave him a letter to help him obtain a bond card. In con-
trast, Prieto also stated that he was given the letter in
May or June 1984 and then threatened.
Regarding the threat, Prieto testified that Cipolla
spoke to him alone in the drivers room.? Cipolla told
him that if he followed Ortega's footsteps, he would be
out of a job faster than he could "blink an eye." Prieto
asked if he was threatening him, and Cipolla replied that
he was "promising." Prieto then said that all he wanted
was a raise, better benefits, and medical coverage. Ci-
polla answered that "we'll work on this."
About 10 July, Prieto told Cipolla that he had a court
hearing and would not be at work on 10 July. On that
day, Prieto picked up his bond card at the U.S. Customs
Service and went to the Union. At the Union he told of-
ficial Pat Crapanzano that he wanted to join. Crapanzano
asked if he had a bond card and Prieto showed it to him.
Crapanzano told him to sign up, and the Union accepted
a $100 payment toward the initiation fee of $400. Prieto
never told Respondent that he received a bond card or
joined the Union that day.
Daniel Masiello, a union agent, testified generally that
upon receiving a completed application for membership
the new member is given a ledger number, and his name,
address, and employer's name is put onto a ledger card
and entered into a computer. The completed checkoff
authorization form is then mailed to the employer
that day or the next few days . . . or depending on
the time of the month we may wait until the end of
the month when we send out the pre-billing and last
month's dues receipts to the company which is the
practice every month since the pre-billing has been
initiated.
It appears that Preito's information was properly en-
tered into the computer and he was assigned ledger
number 11797 about 10 July. That number appears to
conform chronologically with the numbers assigned to
Ortega-11710, who joined about 16 March and
Bowman-11716, who joined on 22 March. In addition,
the Union's computer issued a receipt for the partial pay-
ment of the initiation fees. It thus appears that, notwith-
standing Respondent's objections to Masiello's testimony,
Prieto's application was processed in a routine and regu-
lar manner.
On 16 July, prior to coming to work, Prieto phoned
Cipolla "in advance" because he did not want to cause
problems for himself. He told Cipolla that he was unable
to find a babysitter for his 12-year-old daughter and re-
quested permission to bring her to work and have her
6 Prieto stated that Bowman and Ortega had bond cards before he
began work with Respondent in 1981.
7 In his pretrial affidavit, Prieto stated that Ortega stood outside the
room but was able to hear the conversation. This does not contradict his
hearing testimony that he spoke to Cipolla alone in the driver's room.
F & C TRANSFER CO.
accompany him on the truck.8 Cipolla "cautioned" and
"warned" him that it was contrary to insurance regula-
tions and policy to have an unauthorized passenger in
the truck because that person would not be covered by
Respondent's insurance policy. Prieto responded that he
would take the day off and lose a day's pay rather than
lose his job. Cipolla then told him that he should come
to work with his daughter because he was needed, but
told him not to do it again because it was against the
regulations. Prieto brought his daughter to work and she
accompanied him in the truck that day.
On 19 July, Prieto reported to work with his daughter.
He did not call in advance because he did not have time
to do so. Cipolla saw his daughter getting into the truck
and told Prieto that he warned him about having unau-
thorized passengers because it was against insurance
company policy. Prieto replied that there was nothing he
could do because he could not leave his daughter home
alone. He offered to leave work and lose a day 's pay. Ci-
polla answered , "I have no choice . I'm going to have to
let you work because I need you today." He also told
Prieto to drive carefully.
Upon his return to Respondent 's premises at the end of
the day, Prieto was told by Cipolla that he had to let
him go because (a) Respondent 's president Andrew De
Giamo saw his daughter in the truck and (b) he was in-
volved in a fatal accident and the insurance company did
not want him driving.
The accident, which occurred in January 1983, took
place when Prieto, driving a passenger car, was involved
in a multicar collision , resulting in one fatality. Prieto,
who was not driving a Respondent vehicle and was off
duty, received no summons , and his license was neither
suspended nor revoked, but he did attend Department of
Motor Vehicle hearings as a witness at which he was
found innocent of any wrongdoing.
Respondent has no written policy concerning carrying
unauthorized passengers on its vehicles. Prieto's testimo-
ny that no one has been disciplined for having such a
rider was not contradicted.
Three employees in addition to Prieto testified con-
cerning nonemployee passengers on Respondent 's vehi-
cles.
Benjamin Bowman stated that his son rode with him
one or two times in prior summers. Cipolla told him not
to bring his son any more , which Bowman described as
"sort of a warning." In the summer of 1984, Bowman
"took a chance" and again brought his son. Cipolla told
him that it was against the rules, "I can't have it," and
Bowman no longer brought his son . Bowman further
stated that he believed that Cipolla told each driver who
brought his child that it was "against the rules and
policy."
William Hollowell stated that he told Cipolla that his
14-year-old son would accompany him on the truck in
the summer of 1983, and Cipolla did not reply, although
at other times Cipolla told the drivers that it was against
s In view of Prieto 's testimony that he called in advance in order to
avoid problems , I find that he called Cipoila for the purpose of seeking
authorization to take his daughter to work I do not credit his testimony
that he was calling simply to announce that he could not work that day
593
insurance policies to have unauthorized passengers in the
truck . However, Cipolla never told him not to bring
such passenger again . During the time that Hollowell's
son came to work , Cipolla asked him if his son wanted
to earn a day's pay by working with another driver.
Hollowell refused the offer.
William Simpson testified that nearly every driver, at
one time or another, has an unauthorized passenger in his
vehicle, and that he taught Cipolla's 16-or 177year-old
son in his truck 2 or 3 years ago.
Preito testified that it was "common practice" for
drivers to have their children ride with them during
work hours , but did not know whether Cipolla saw such
passengers or warned the drivers.9
2. The alleged illegal assistance to the Union
The complaint alleges that Respondent has afforded
higher wages and greater benefits to employees who are
members of the Union than it has afforded to employees
who are not union members.
The documentary evidence which includes the collec-
tive-bargaining agreement , payroll records, the monthly
reports that Respondent submits in payment of the
Union's pension and welfare fund, and the parties' stipu-
lation concerning the employees ' union membership
status, supports a finding that Respondent (a) made pen-
sion and welfare contributions on behalf of its employees
who were union members and did not make such pay-
ments in behalf of its employees who were not union
members, (b) paid its employees who were union mem-
bers a higher wage rate than those who were not union
members and, (c) when union dues were first deducted
from the pay of a new member, his pay rate was immedi-
ately increased to the rate received by other union mem-
bers and at the 1 October effective date of contractual
increases in wages, the new member received a wage
raise.
Thus, the records show that Bowman and Ortega,
who joined the Union in March 1984 , received weekly
wages of $448 each in early April, and at the same time
Respondent began making pension and welfare contribu-
tions in their behalf.
The records also showed that only those drivers who
had bond cards were union members. The parties' collec-
tive-bargaining contract, on its face, applies to all chauf-
feurs, helpers , warehousemen , and others. There is no
distinction drawn in the agreement between those having
bond cards and those who do not.
B. Analysis
1. Ortega
Following Ortega's joining the Union, he was assigned
for 1 week to the platform where he loaded and unload-
ed vehicles . Following that , he was reassigned for I
9 In view of the testimony of Bowman and Hollowell regarding Cipol-
la's comments to them concerning their children as passengers, I need not
discuss the testimony of Prieto and others that Cipolla must have known
that drivers rode with unauthorized passengers because of their presence
in the driver 's room and the lack of public transportation near Respond-
ent's facility.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
week to driving duties and given a rental vehicle which
required manual loading and unloading. During his week
on the platform, Ortega's regular vehicle was assigned to
Prieto. Ortega did not testify.
Although these assignments , coming immediately after
Ortega joined the Union, are suspicious and may perhaps
have been unlawfully motivated, I find that the evidence
is insufficient to support a finding that Respondent im-
posed onerous and more rigorous terms and conditions
of employment on Ortega by assigning him to more ar-
duous and less agreeable work, as alleged in the com-
plaint. No animus was demonstrated toward Ortega be-
cause he joined the Union. Although Respondent offered
no explanation for assigning Ortega to the platform and
giving his vehicle to Prieto (a) employees testified that
they regularly load and unload vehicles (but not continu-
ously for 1 week), (b) Prieto performed such work for 3
weeks upon returning from layoff, and (c) drivers testi-
fied that although they may not like to perform such
manual work they recognize that they must do it if it is
part of the job.
Accordingly, it appears that the work Ortega was as-
signed to perform was a regular part of the driver's
duties and although it may have been less agreeable it
was recognized by other drivers that when required,
such tasks had to be performed as part of their assign-
ment. Purolator Products, 270 NLRB 694 (1984). I ac-
cordingly find no violation of the Act with respect to
Ortega.
2. Prieto
I find that the uncontradicted statement by Cipolla to
Prieto that if he followed in Ortega's footsteps he would
be out of a job faster than he could blink an eye, was an
umistakable reference to Ortega's joining the Union and
was an unlawful threat to discharge Prieto. This remark
by Cipolla was consistent with Cipolla's similar uncon-
tradicted remark to him 3 years earlier when Cipolla in-
formed him that if he joined the Union he would have to
lay off or fire him. Although no finding of violation may
be based upon the 1981 remark because it is barred by
Section 10(b) of the Act, that statement may be consid-
ered in determining the Respondent's motive. Machinists
Lodge 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411 (1960).
The General Counsel alleges that Prieto was dis-
charged because he attempted to or did join or support
the Union . His case-in-chief shows that Prieto was inter-
ested in the Union as early as 1981 and he was told by
Cipolla at that time that Respondent could not afford to
pay everyone union wages and that if he joined the
Union he would be laid off or discharged. Prieto's inter-
est in the Union continued and was know by Respond-
ent, Thus, I have found that Prieto was unlawfully
threatened with discharge in March 1984, if he followed
Ortega's example of joining the Union, and Prieto was
present that month in a group of employees who had
signed cards and were told by Cipolla that only bond
card holders were eligible for union membership.
A fair inference may be drawn that Respondent re-
ceived the dues-checkoff authorization form on or before
19 July and thus knew that Prieto had joined the Union.
I base this inference on the past practice of the Union
with respect to the procedure it followed when Felix
Ortega and Benjamin Bowman joined the Union. Ac-
cording to union agent Masiello, the member signs the
application and also a dues-checkoff authorization form.
The dues-authorization form is then sent by the Union to
the employer. Ortega signed an application for the Union
on 16 March 1984. The Union welfare and pension con-
tributions report for March, prepared by Respondent,
states that contributions were made for Ortega for 1
week and 4 days that month. Respondent was thus aware
that Ortega became a union member as of a least 20
March-4 days after he signed the application.
Similarly, Bowman signed an application on 22 March.
The union contributions report states that pension and
welfare payments were first made in his behalf for the
entire month of April which began on 2 April, a
Monday. Respondent was thus aware that Bowman
became a union member as of at least 2 April- 11 days
after he signed the application.
The parties stipulated that the pension and welfare
contributions were made by Respondent in behalf of
union members, and it is thus clear that the dues authori-
zation forms of Ortega and Bowman were received by
Respondent 4 and 11 days, respectively, after they signed
their union applications. Prieto's application was proc-
essed on 10 July upon his partial payment of the initi-
ation fee, and on 19 July he was discharged. An infer-
ence may properly be drawn that his dues checkoff form
was received by Respondent on or before 19 July-9
days after his application was processed. Union Agent
Masiello's testimony supports such a fording. He stated
that the dues authorization form is sent to the employer
"that day or the next few days." Although he also testi-
fied that, depending on the time of the month, the Union
sometimes waits until the end of the month, it appears
that is done only when the application is signed or proc-
essed toward the latter part of the month. It thus appears
that Prieto's form, which was processed on 10 July, was
sent out in a matter of days because the cards of Ortega
and Bowman being processed later in the month, on 16
and 22 March, respectively, were mailed in a timely
manner to Respondent. t o
I, accordingly, find that Prieto's dues-authorization
form was received by Respondent before 19 July or on
19 July but before he was discharged.
Respondent's animus toward Prieto is clear. It advised
him in 1981 that it could not afford to pay everyone
union wages and it would discharge him if he tried to
join. The threat to discharge was repeated in March
1984.
This animus is not diminished by the fact that Re-
spondent helped Prieto obtain a bond card by providing
him with a letter for the Customs Service which enabled
10 Respondent 's payroll records are inconclusive on this issue Ortega's
record indicates that in the week ending 5 April, $46 or 2 months dues
were deducted from his pay But the following week , ending 12 April, a
$46 credit was entered on the form
Bowman's payroll record indicated that in the week ending 5 April,
$23 or 1 month's dues was deducted from his earnings, but in the follow-
ing week ending 12 April a $23 credit was entered on his form Inasmuch
as no testimony was offered to explain these payroll records, it is impossi-
ble to make any significant findings concerning these entries.
F & C TRANSFER CO.
him to procure that card. It is to Respondent's benefit to
have its employees bonded so that they alone may sign
for bonded freight, rather than have to assign a bonded
driver to go to the pier to sign for the merchandise. Re-
spondent apparently was willing to have its drivers
bonded and utilize such certification only until they
sought union membership. Such membership carried
with it increased wages and pension and welfare contri-
butions which were substantial. Thus, when Ortega and
Bowman joined the Union in March 1984, Ortega's
weekly wages were increased from $383 to $448 for a
40-hour week, and Bowman's weekly wages were raised
from $398 to $448. Later, on 1 October 1982, both re-
ceived a $20-per week raise pursuant to the contract.
Similarly, Respondent made weekly contributions to the
Union of $43 for welfare and $63 for pension for each
employee when they joined the Union. Thus, union
membership involved a substantial, increased cost to Re-
spondent-$48911 per month for Ortega and $47412 for
Bowman.
Respondent's desire to avoid these extra costs is evi-
denced by its 1981 uncontradicted remark to Prieto that
it could not afford to pay everyone union wages. Clearly
the motive for his discharge was Respondent's wish to
prevent him from joining the Union. The knowledge that
Respondent possessed of Prieto's union activities and his
continued interest in membership; the animus displayed
toward him as evidenced by the undenied threats to dis-
charge him if he joined the Union; the motive for the
discharge in Respondent's alleged inability to pay union
wages; and the timing of the discharge coming shortly
after he visited the Union and his application for mem-
bership was processed, which included the receipt by
Respondent of the dues-authorization form, all combine
to warrant a finding that the General Counsel has made
a prima facie showing that Prieto's protected activity
was a motivating factor in Respondent's decision to dis-
charge him. Wright Line, 251 NLRB 1083 (1980).
Respondent has the burden of showing that it would
have taken the same action against Prieto in the absence
of his union activities. Wright Line, supra. I find that it
has not met its burden.
The reasons given Prieto at the time of his discharge
were that (a) Respondent's president saw Prieto's daugh-
ter in the truck and (b) Respondent's insurance company
did not want him to drive, due to his prior accident.13
The second reason, that Prieto was being discharged
because of the accident and Respondent's insurance com-
pany did not want him driving its vehicles, is clearly pre-
textual. The accident occurred in January 1983, 1-1/2
years before the discharge, and involved Prieto driving a
private passenger car while off duty. His driver's license
was not suspended or revoked, he received no summons
i i wages of $448 less $383 equals $65 per month Weekly pension and
welfare contributions totalling $106 equal $424 per month Thus, $65 and
$424 equals $489
12 Wages of $448 less $398 equals $50 per month, plus monthly pen-
sion and welfare contributions of $424 equals $474
13 Prieto's testimony that he was given that second reason at the time
of his discharge is believed Respondent's argument that Prieto's failure
to mention that reason in his pretrial affidavit renders his testimony in-
credible is rejected Presto's testimony as to his discharge interview was
not contradicted by Respondent, who did not call any witnesses
595
for violations, and was cleared of any wrongdoing in a
Department of Motor Vehicles proceeding. Nothing was
apparently said to him about the accident by Respondent
until his discharge, and he was permitted by it to contin-
ue to operate its vehicles continuously until he was ter-
minated. No evidence was adduced of any communica-
tion between Respondent and its insurance company con-
cerning the accident or Prieto's fitness to drive.
The first reason, the carrying of his daughter on the
truck, is equally invalid, although slightly more trouble-
some.
On 16 and 19 July Prieto brought his daughter to
work and was expressly permitted by Respondent's
owner and dispatcher Cipolla to take her on the truck
with him. Prieto admits that on both days he was
warned that it was against insurance company policy to
carry unauthorized passengers and was told on 16 July
not to do it again.
However, Cipolla, being fully aware that Prieto again
disobeyed orders, failed to warn him that he would be
discharged if he brought his daughter, but rather, in con-
trast, authorized his carriage of his daughter. Moreover,
although Cipolla could have fired Prieto on the spot for
his actions, he did not do so and did not threaten him
with discharge. In this regard there is no evidence that
prior to 19 July any discipline was ever given to drivers
who carried unauthorized passengers nor was there any
evidence that any drivers were threatened with discipline
or discharged for such conduct. Rather, in contrast, it
appears that other drivers in the past carried their chil-
dren but were not disciplined for doing so, although they
were sometimes warned for such behavior. NLRB Y.
Transportation Management Corp., 462 U.S. 393 (1983).
Such inconsistent and disparate treatment diminishes Re-
spondent's asserted justification for its discharge of
Prieto. Brigadier Industries, 267 NLRB 559, 566 (1983);
Moore Co., 264 NLRB 1212, 1214 (1982).
I accordingly find and conclude that Respondent has
failed to demonstrate that it would have taken the same
action against Prieto in the absence of his union activi-
ties.
3. The alleged illegal assistance to the Union
The parties' collective-bargaining contract, on its face,
applies to all drivers. The drivers, mechanic, and helper
work on the same premises and report to Cipolla. The
drivers do identical work-they work the same hours,
are dispatched by Cipolla, drive the same types of
trucks, and service the same customers. They thus share
a genuine community of interest.
The collective-bargaining agreement provides that Re-
spondent "recognizes and acknowledges that the Union
is the sole and exclusive bargaining agency [sic] for the
purpose of collective bargaining . . . for all classifica-
tions of employees listed in the wage schedule of this
Agreement," which includes chauffeurs, helpers and
warehousemen. It is thus clear that the Union is the ex-
clusive bargaining agent for member and nonmember
employees, and Respondent could not, without violating
the Act, discriminate in wages solely on the basis of such
membership. Radio Officers v. NLRB, 347 U.S. 17, 47
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1954); Schorr Stern Food Corp., 227 NLRB 1650, 1653-
1654 (1977).
It is admitted and I find that Respondent paid the con-
tractual wage rate to and made pension and welfare con-
tributions for all union members in the bargaining unit,
but paid significantly less wages to and did not make
contributions for the employees in the unit who were not
members of the Union. This it cannot lawfully do. Kauf-
man DeDell Printing, 251 NLRB 78, 79-80 (1980).
Respondent concedes that the contract is silent as to
bonded or nonbonded employees, and argues that the
parties' practice was that the contract would be- applied
only to those employees who had bond cards and that
only such employees were in the bargaining unit. I reject
this argument.
As set forth above, the contract on its face applies to
all chauffeurs. There is no mention in the contract of any
distinction between' employees who have or do not have
bond cards.14 Parol evidence may not be used to estab-
lish that the Union represents only bonded drivers where
,the contract states otherwise. Schoor Stern Food Corp.,
supra.
Moreover there was no evidence that the "practice" of
applying the contract only to bond card holders was in
effect at any time before 22 March. It was obviously ap-
plied selectively, apparently at the behest of Respondent,
which, according to Prieto's undenied testimony, stated
that it could not afford to pay every driver union wages.
The Union was apparently not even aware of this "prac-
tice" because, at its 22 March visit to the shop, its agents
distributed application cards to all the nonmembers with-
out first asking them if they held bond cards. It was only
after a consultation with Respondent that the union rep-
resentatives announced that only bond card holders were
eligible for union membership.' s
It is thus clear that contractual wages and benefits
were provided for union members because they were
union members and not because they obtained bond
cards. Thus, Bowman and Ortega, who apparently had
bond cards before the 22 March visit to the shop by the
Union, did not receive such contractual advances until
they became union members. It was therefore the acqui-
sition of union membership that triggered wage increases
and other benefits for the employees permitted to join
the union.
For the foregoing reasons, I find that Respondent vio-
lated Section 8(a)(2) and (1) of the Act by applying the
terms of the collective-bargaining contract only to union
members. This compensated employees for union mem-
bership and thus unlawfully assisted the Union. Also, by
making these benefits available only to union members,
nonunion unit employees were restrained in their rights
to refrain from becoming members of the Union in viola-
tion of Section 8(a)(1) of the Act. It is further found that
14 The drivers having bond cards do the same work as nonbonded em-
ployees, with the only exception being that only the bonded drivers may
sign for bonded merchandise However once signed for, the nonbonded
worker may transport the goods The difference, therefore, between
bonded and nonbonded workers is insignificant.
rs The Union's constitution and bylaws, which would have set forth
such a qualification for membership if one existed, was not offered in evi-
dence
Respondent, by providing greater remuneration in the
form of higher wage rates and other contractual benefits
to union members than to nonunion members for the
work which unit members performed, thereby discrimi-
nated in regard to terms and conditions of employment
in a manner which would tend to encourage membership
in a labor organization. I therefore conclude that the Re-
spondent violated Section 8(a)(3) and (1) of the Act.
CONCLUSIONS -OF LAW
1. Respondent F & C Transfer Co., Inc. is, and at all
times material herein has been, an employer engaged in
commerce within the meaning of the Act.
2. By failing to apply the terms of its collective-bar-
gaining contract to its employees in the collective-bar-
gaining unit who are not members of Local 27, Intema-
tional Brotherhood of Teamsters, and by otherwise fail-
ing or refusing to grant such employees wage increases
and to make contributions to pension and welfare funds
because such employees are not members of the Union,
and by rendering unlawful assistance and support to the
Union by discriminating in regard to the hire or tenure
or terms or conditions of employment of its employees,
thereby either discouraging or encouraging membership
in a labor organization, Respondent has violated Section
8(a)(1), (2), and (3) of the Act.
3. By discharging Ray Prieto on 19 July 1984 for at-
tempting to join or for joining and supporting or assist-
ing the Union, the Respondent violated Section 8(a)(1)
and (3) of the Act.
4. By threatening its employees with discharge if they
joined the Union, Respondent violated Section 8(a)(1) of
the Act.
5. Respondent has not violated the Act , as alleged in
the complaint, by imposing onerous and more rigorous
terms and conditions of employment on Felix Ortega by
assigning him to more arduous and less agreeable work.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has committed certain
unfair labor practices, I shall recommend that Respond.
ent cease and desist and take certain affirmative actions
designed to effectuate the policies of the Act.
The complaint alleges that Respondent discriminated
against its nonunion employees with respect to wages
and benefits. On the basis of the entire record in this
case, it seems clear that all the Respondent' s nonunion
employees who are or have been employed in the rele-
vant unit since 26 January 198416 have suffered identical
discriminatory treatment. Accordingly, it is recommend-
ed that Respondent make whole all past and present non-
union employees, similarly situated, who were employed
by Respondent in work classifications embraced by the
unit set forth in the current collective-bargaining agree-
16 26 January 1984 is the date 6 months prior to the filing and service
of the charge herein, commencing the period cognizable under Sec. 10(b)
of the Act
F & C TRANSFER CO.
ment during the period since 26 January 1984, for any
loss of pay or other benefits they may have suffered by
reason of Respondent's failure to apply the terms and
conditions of the collective-bargaining agreement to
theme in the same manner as it did to its union employees.
Reimbursement shall be made for any losses suffered by
nonunion employees by reason of the discrimination
against them, together with interest thereon, in accord-
ance with Isis Plumbing Co., 138 NLRB 716 (1962), as
modified by Florida Steel Corp., 231 NLRB 651 (1977).
Having found that Respondent unlawfully discharged
Ray Prieto on 19 July 1984, I recommend that Respond-
ent be ordered to reinstate him and make him whole for
any loss of earnings he may have suffered as a result of
the discrimination against him. The amount of backpay
shall be computed in the manner set forth in Isis Plumb-
ing Co., supra, as modified by Florida Steel Corp., supra.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'?
OR]DER
The Respondent, F & C Transportation Co., Inc.,
Jersey City, New Jersey, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Discriminating in regard to terms and conditions of
employment of employees by failing to grant them the
wages and benefits provided for in the collective-bar-
gaining agreement with Paper Products and Miscellane-
ous Drivers, Warehousemen and Helpers, Local 27, a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, because of the
employee's membership or lack of membership in that
labor organization.
(b) Discharging or in any other manner discriminating
against employees because they engage in union activi-
ties.
(c) Threatening employees with discharge if they
joined the Union or sought to be represented by it.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole all present and former nonunion em-
ployees in the collective-bargaining unit as set forth in
the current collective-bargaining contract in Respond-
ent's employ during the period since 26 January 1984,
for any loss of wages and other benefits and other terms
and conditions of employment they would have received
since that date but for the discrimination against them.
(b) Offer Ray Prieto immediate and full reinstatement
to his former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his se-
niority or any other rights or privileges previously en-
17 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
597
joyed, and make him whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section
of the decision.
(c) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this
has been done and that the discharge will not be used
against him in any way.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Jersey City facility copies of the at-
tached notice marked "Appendix.""' Copies of the
notice, on forms provided by the Regional Director for
Region 22, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations not specifically
found herein.
18 If 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 Nation-
al 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 EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminate in regard to terms and con-
ditions of employment of employees by failing to grant
them the wages and benefits provided for in the collec-
tive-bargaining agreement with Local 27, International
Brotherhood of Teamsters, because of the employees'
membership or lack of membership in that labor organi-
zation.
WE WILL NOT discharge or in any other manner dis-
criminate against employees because they engage in
union activities.
WE WILL NOT threaten employees with discharge if
they joined the Union or sought to be represented by it.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make whole all present and former nonunion
employees in the collective -bargaining unit , as set forth
in the current collective -bargaining contract, in Respond-
ent's employ during the period since 26 January 1984 for
any loss of wages and other benefits and other terms and
conditions of employment they would have received
since that date but for the discrimination against them.
WE WILL offer Ray Prieto immediate reinstatement to
his former job or , if that job no longer exists , to a sub-
stantially equivalent position , without prejudice to his se-
niority or any other rights or privileges previously en-
joyed and WE WILL make him whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings , plus interest.
WE WILL notify him that we have removed from our
files any reference to his discharge and that the dis-
charge will not be used against him in any way.
F & C TRANSFER CO., INC.