F. J. Burns Draying, Inc.Download PDFNational Labor Relations Board - Board DecisionsOct 4, 1960129 N.L.R.B. 252 (N.L.R.B. 1960) Copy Citation 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it assumed the reinstatements were properly made, an unfair labor practice was committed by each of the discharges and backpay would be due to the dates of the reinstatements . However, the evidence established that neither reinstatement was -legally sufficient . Albert Kaufman was shorted 5 cents an hour, and Prentis Kauf- man was not offered his former job in the shipping department despite the fact that Rochinski desired his return . Indeed, Kaufman 's undenied testimony concern- ing Rochinski 's statements showed Herberger 's letter to be only a self-serving decla- ration in attempted support of the alleged ground for Kaufman 's discharge, not a bona fide offer of reinstatement to his former position . Kaufman 's failure to com- plain or to reject the offer did not absolve Respondent of its duty to offer him rein- statement to the position from which it unlawfully discharged him. III. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist thereform and that it take certain affirmative action of the type conventionally ordered in such cases, as provided under recom- mendations below, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. For reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease and desist order. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Charging Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of section 8(a) (1) of the Act. 3. By discharging Prentis C. Kaufman on September 11, 1959, Albert V. Kauf- man on September 14, 1959, and L. E. Davis on December 31, 1959, Respondent engaged in discrimination to discourage membership in the Charging Union, thereby engaging in unfair labor practices proscribed by Section 8(a) (3) and (1) of the Act. 4. The aforesaid unfair labor practices having occurred in connection with the operation of Respondent's business as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and substantially affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.) F. J. Burns Draying, Inc . and George Fabian Teamsters , Chauffeurs , Warehousemen and Helpers of America, International Brotherhood of Teamsters and Auto Truck Drivers, Local 85 and George Fabian . Cases Nos. 20-CA-1797 and 20-CB-748. October 4, 1960 DECISION AND ORDER Upon charges duly filed by George Fabian, the General Counsel of the National Labor Relations Board, by the Regional Director for the Twentieth Region, issued a consolidated complaint dated March 25, 1960, against F. J. Burns Draying, Inc. (herein called the Re- spondent Company), and Teamsters, Chauffeurs, Warehousemen and Helpers of America, International Brotherhood of Teamsters and Auto Truck Drivers, Local 85 (herein called the Respondent Union), 129 NLRB No. 26. F. J. BURNS DRAYING, INC. 253 alleging that the Respondent Company and the Respondent Union had engaged in and were engaging in certain unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charges, complaint, and notice of hearing before a Trial Examiner were duly served upon the Respondent Company, the Respondent Union, and the Charging Party. With respect to the unfair labor practices, the complaint alleges, in substance, that the Respondent Company, at the request of the Re- spondent Union, discharged George Fabian on or about February 12,1960, because Fabian was not a member of Respondent Union, and that Respondent Company knew or had reasonable grounds to be- lieve that such membership was denied or terminated by Respondent Union for reasons other than the failure of Fabian to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership. The complaint also alleges, in substance, that the Respondent Union caused the Respondent Com- pany to discharge George Fabian on or about February 12, 1960, because of his lack of membership in Respondent Union when Fabian's membership had been denied or terminated on some ground other than his failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership. The conduct of the Respondent Company in discharging Fabian is alleged to be an unfair labor practice violative of Section 8 (a) (1) and (3) of the Act. The conduct of the Respondent Union in causing the discharge of Fabian is alleged to be an unfair labor practice violative of Section 8 (b) (1) (A) and (2) of the Act. On May 3, 1960, all parties to this proceeding entered into a stipula- tion of facts, and on the same date jointly requested the transfer of this proceeding directly to the Board for findings of fact, conclusions of law, and Decision and Order. The request states that the parties have waived their rights to the filing of an answer, a hearing before a Trial Examiner, the issuance of an Intermediate Report, and the filing of exceptions and briefs. The request provides further that the charges, consolidated complaint, and stipulation of f acts constitute the entire record in the case. On May 10, 1960, the Board granted the Parties' request to transfer the case to the Board. Upon the basis of the Parties' stipulation of facts and the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY The Respondent Employer, a California corporation, maintains its principal office and place of business at 516 Townsend Street, San 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Francisco, California, where it is engaged in the business of intrastate and interstate operations as a common carrier of general commerce. In the course of its trucking operations within the State of California, the Respondent Company, during the past year derived a gross in- come in excess of $200,000 from operations which were performed for establishments shipping in excess of $50,000 worth of their products to points outside the State of California. During the same period it received in excess of $50,000 in revenue pursuant to contracts or ar- rangements with, and/or as agent for various common carriers operat- ing among the several States, who annually derive an income in excess ,of $50,000 from such operations. Upon the above-admitted facts, we find that the Respondent Com- pany is engaged in commerce within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction in this case. U. TIDE LABOR ORGANIZATION INVOLVED Teamsters, Chauffeurs, Warehousemen and Helpers of America, International Brotherhood of Teamsters and Auto Truck Drivers, Local 85, is a labor organization as defined in Section 2(5) of the Act. M. THE UNFAIR LABOR PRACTICES The facts as stipulated show that the Respondent Company and Respondent Union are Parties to a collective-bargaining agreement effective as of July 1, 1959, and expiring June 30, 1961, which con- tains the following provision : UNION MEMBERSHIP : All employees shall apply for mem- bership in the Union on or after the thirtieth day following the beginning of his [sic] employment, or the effective date of this Agreement, whichever is later, and as a condition of employment shall maintain their membership in the Union in good standing. George Fabian commenced employment with the Respondent Com- pany approximately January 11, 1957. After suffering injuries, he was granted an indefinite leave of absence by the Respondent Com- pany on April 14, 1959. He did not take a withdrawal from the Respondent Union and became delinquent in his dues in October 1959. He was reinstated to his former position by Respondent Company on September 3, 1959, without a clearance from the Respondent Union. About the latter part of January 1960, Respondent Company was notified by Michael V. Fahey, business representative of Respondent Union, that Fabian was in arrears in dues payments and that in view of the terms of the collective-bargaining agreement, Fabian could not work until he was reinstated in the Respondent Union. Joseph Ratto, president of Respondent Company, advised Fabian of this situation and, by way of assistance in settling the matter, ad- F. J. BURNS DRAYING, INC. 255 vanced payment of 1 week's wages to Fabian. On February 4, 1960, Fabian proceeded to the headquarters of Respondent Union and made payment of $116.50 to cover the initiation fees and 3 months' back dues, which was the amount of money required to put him in good standing. Fabian received the customary receipt for these payments. On February 8, 1960, Fabian received an undated letter from the Respondent Union which informed him that his "reinstatement was accepted at the meeting February 4, 1960." Up to this time Fabian had not been laid off by the Respondent Company. On February 5, 1960, Business Representative Fahey was informed by his office that Fabian's application for reinstatement had been turned down at the membership meeting held at Respondent Union's headquarters on February 4, 1960. On the same day Fahey contacted the supervisor of the Respondent Company and advised him that Fabian's reinstatement had not been approved by the union member- ship. The supervisor informed Fahey that he had been shown a letter of reinstatement from the Respondent Union and that Fabian was presently working. Fahey checked with his office again and de- termined that the reinstatement letter had been sent out through error. About February 10, 1960, Fahey notified the Respondent Company about the mistake and requested that Fabian be discharged. Fahey further informed the Respondent that Fabian would have to appear before the Respondent Union's executive board in order to be rein- stated and continue on the job. Pursuant to this conversation between Fahey and the Respondent Company, Fabian was discharged by the Respondent Company on February 12, 1960. On February 18, 1960, at a meeting of the executive board, Fabian's reinstatement applica- tion was rejected. On March 25, 1960, the Respondent Company restored Fabian to his former position and he has continued to work since that date. He has, however, received no backpay for the period from February 12 to March 25, 1960. Section 8(b) (2) of the Act prohibits a labor organization from causing or attempting to cause an employer to discriminate, in regard to the hire,, tenure, or any term or condition of employment of any employee covered by a valid union security agreement" . . . with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." Section 8(a) (3) of the Act prohibits an employer from justifying any discrimination practiced against any employee covered by a valid union-security agreement in regard to his hire, tenure, or any term, or condition of employment based on the employee's nonmembership in a labor organization if the employer has "reasonable grounds for believing that membership was denied or terminated for reasons 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." In the instant case Fabian admittedly paid to the Respondent Union the amount of initiation fees and dues required to put him in good standing. The money was accepted by the Respondent Union and Fabian was formally notified that his reinstatement had been accepted. So far as Fabian was concerned his delinquent status had been cured and he was in full compliance with the terms of the collective-bargain- ing agreement. We do not believe that Respondent Union could thereafter revoke notice of his reinstatement on the ground that such notice has been sent to him "through error." Employees, required as a condition of employment to maintain membership in a union, are entitled to rely upon official statements and letters affirming their membership status for purposes of retaining employment. We find that when Respondent Union accepted the money tendered by Fabian and notified him of his reinstatement, Respondent Union waived its right to demand Fabian's discharge for failure to comply with the terms of its union-security agreement. We further find that, as the Respondent Company had knowledge of the fact that Fabian had tendered the required dues and initiation fees, which tender had been accepted, it had reasonable cause to believe that Fabian's reinstate- ment in the Union was denied for some reason other than nonpayment of these sums. Accordingly, we conclude that the Respondent Union violated Section 8(b) (2) and (1) (A) of the Act by causing the Respondent Company to discharge Fabian, and that the Respondent Company violated Section 8(a) (3) and (1) of the Act by acceding to the Respondent Union's demand.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, oc- curring in connection with the operations of the Respondent Company set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, we shall order that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Inasmuch as the Respondent Company has already reinstated George Fabian to his former position, we shall order the Respondent Union to notify the Respondent Company in writing, and furnish a 1 Technvcolor Motion Picture Corporation , 122 NLRB 73. F. J. BURNS DRAYING, INC. 257 copy to Fabian, that it has withdrawn its objections to the employ- ment of Fabian by the Respondent Company and accedes to the Re- spondent Company's reinstatement of Fabian. Since we have found that the Respondent Union and Respondent Company are both responsible for the discrimination suffered by Fabian, we shall order that they jointly and severally make Fabian whole for the loss of pay he may have suffered by reason of the dis- crimination against him, by payment to Fabian of a sum of money equal to that which he normally would have earned as wages from February 12 to March 25, 1960, less his net earnings during said period.' Such backpay shall be computed in accordance with the formula established in F. W. Woolworth Company.3 We shall further require, in accordance with our usual practice, that the Respondent Company, upon request, make available to the Board and its agents all pertinent records necessary to compute the amount of backpay due. CONCLUSIONS OF LAW 1. The Respondent Union, Teamsters, Chauffeurs, Warehousemen and Helpers of America, International Brotherhood of Teamsters and Auto Truck Drivers, Local 85 is a labor organization within the mean- ing of Section 2 (5) of the Act. 2. By causing the Respondent Company to discriminate against George Fabian, an employee with respect to whom membership was terminated and denied by the Respondent Union because of some ground other than his failure to tender the periodic dues and initia- tion fees uniformly required as a condition of acquiring or retaining membership, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) and (1) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of George Fabian at the demand of the Respondent Union under a contract making membership a condition of continued employment but with reasonable grounds for believing that Fabian's membership in the Respondent Union was being terminated and denied on some ground other than his failure to tender the periodic dues and initia- tion fees uniformly required as a condition of acquiring or retaining membership, the Respondent Company has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2 Cros8ett Lumber Company, 8 NLRB 440. 8 90 NLRB 289. 586439-61-vol 129-1S 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. The Respondent Union, Teamsters, Chauffeurs, Warehousemen and Helpers of America, International Brotherhood of Teamsters and Auto Truck Drivers, Local 85, its officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause the Respondent Company, its officers, agents, successors, or assigns to discriminate against George Fabian in regard to his hire or tenure of employment or any term or condition of employment because of his nonmembership in the Re- spondent Union, except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 195J. (b) In any like or related manner restraining or coercing employees of the Respondent Company, its successors, or assigns in the exercise of the right guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify the Respondent Company that the Union has no objec- tion to the employment of George Fabian. (b) Jointly and severally with the Respondent Company make George Fabian whole in the manner set for in the section entitled "The Remedy." (b) Post at its office and place of business in San Francisco, Cali- fornia, and at all locations where notices to members are customarily posted, copies of the notice attached hereto marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by a representative of the Respondent Union, be posted by it immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, de- faced, or covered by any other material. (c) Additional copies of the notice hereto attached and marked "Appendix A" shall be signed by a representative of the Respondent Union and forthwith returned to the Regional Director for the Twen- tieth Region. These notices shall be posted, at places where notices + In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." F. J. BURNS DRAYING, INC. 259 to the Respondent Company's employees at its San Francisco, Cali- fornia, place of business are customarily posted. (d) Notify the Regional Director for the Twentieth Region, in writing, within 10 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. B. The Respondent Company, F. J. Burns Draying, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Encouraging membership in the Respondent Union by dis- ,charging George Fabian for his nonmembership in the Respondent Union or by discrimination against him in any manner in regard to his hire or tenure of employment or any term or condition of em- ployment because of his nonmembership in the Respondent Union, except as authorized by Section 8(a) (3) of the Act as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with the Respondent Union make George Fabian whole in the manner set forth in the section entitled "The Remedy." (b) Preserve, upon request, and make available to the Board or its .agents all pertinent records necessary to insure expeditious compliance with this Order. (c) Post at its place of business at San Francisco, California, copies .of the notice attached hereto marked "Appendix B." 5 Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being duly signed by the Respondent Company's representative, be posted by it immediately upon receipt thereof at its San Francisco, California, place of business and be maintained by it for 60 consecutive days thereafter in conspicuous places includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Company to insure -that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twentieth Region, in writing, within 10 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. CHAIRMAN LEEDOM and MEMBER KIMBALL took no part in the con- sideration of the above Decision and Order. 5 See footnote 4, supra. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT cause or attempt to cause F. J. Burns Draying, Inc., its officers, agents, successors , or assigns to discriminate against George Fabian in regard to his hire or tenure of employ- ment or any term or condition of employment because of non- membership in the Respondent Union, except as authorized by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL NOT in any like or related manner restrain or coerce employees of the above-named company, its officers, agents, suc- cessors, and assigns in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL jointly and severally with the above-named company make George Fabian whole for any loss of money. he may have suffered as a result of the discrimination against him. WE HAVE no objection to the employment of George Fabian by the above-named company. TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, INTERNA- TIONAL BROTHERHOOD OF TEAMSTERS AND AUTO TRUCK DRIVERS , LOCAL 85, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT encourage membership in Teamsters, Chauffeurs, Warehousemen and Helpers of America, International Brother- hood of Teamsters and Auto Truck Drivers, Local 85, by dis- charging George Fabian from employment for his nonmember- ship in said labor organization or by discriminating against him OVERNITE TRANSPORTATION COMPANY 261 in any other manner in regard to his hire or tenure of employment or any term or condition of employment for such nonmembership, -except as authorized by Section 8(a) (3) of the Act, as modified ,by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL jointly and severally with the above-named Union make George Fabian whole for any loss of money he may have suffered as a result of the discrimination against him. F. J. BURNS DRAYING, INC., Company. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. ,Overnite Transportation Company and International Brother- hood of Teamsters , Chauffeurs , Warehousemen & Helpers of America, Local Union No. 55 'Overnite Transportation Company and General Drivers, Ware- housemen and Helpers Local Union No. 509 ,Overnite Transportation Company and Robert L. McNeil , Harold R. Clegg, Harley Clegg, R. W. Hutchinson , John A. McClure, Walter T. McClure, Wayne A. McClure, and Clyde A. Stamey. Cases Nos. 11-CA-1327, 11-CA-1317, 11-CA-1318, 11-CA-1319, 11-CA-1320,11-CA-1373, 11-CA-1382,11-CA-1383, 11-CA-1396, 11-CA-1397, 11-CA-1398, 11-CA-1399, and 11-CA-1400. Octo- ber 5, 1960 DECISION AND ORDER On June 3, 1960, Trial Examiner Ralph Winkler issued his Inter- mediate Report 1 in the above-entitled proceeding, finding that the 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 copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor i The Intermediate Report contains two minor misstatements which do not affect the Trial Examiner's ultimate conclusions. Accordingly, we note the following corrections : In the last sentence of the first full paragraph on p. 274 of the Intermediate Report, "Mr. 11 ;Laney heard Carter remark . .." should read "Mrs. Laney heard Carter remark . . . In the last sentence of the paragraph ending at the top of p. 277 of the Intermediate Report "The Columbia terminal had . . .'+' should read "The,Charlotte terminal had .. . . 129 NLRB No. 28. Copy with citationCopy as parenthetical citation