F. J. Burns Draying, Inc.

National Labor Relations Board - Board Decisions

Oct 4, 1960

129 N.L.R.B. 252 (N.L.R.B. 1960)

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.