General Truck Drivers, Local 270

National Labor Relations Board - Board Decisions

Oct 31, 1970

186 N.L.R.B. 299 (N.L.R.B. 1970)

GENERAL TRUCK DRIVERS, LOCAL 270 299
General Truck Drivers, Chauffeurs , Warehousemen
and Helpers Local 270 , a/w International Brother-
hood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America , Ind. (Bulk Transport, Inc.)
and Archie L. Aples. Case 15-CB-1060
October 31, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On July 21, 1970, Trial Examiner Morton D.
Friedman issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the General
Counsel filed a brief in support of the Trial Examin-
er's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, General Truck Drivers,
Chauffeurs, Warehousemen and Helpers Local 270,
a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, Ind.,
New Orleans, Louisiana, its officers, agents, and
representatives, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
National Labor Relations Board, herein called the Board,
issued a complaint on April 29, 1970, against General
Truck Drivers, Chauffeurs, Warehousemen and Helpers
Local 270, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Ind.,
herein called the Respondent or the Union, alleging
violations of Section 8(b)(1)(A) and (2) of the National
Labor Relations Act, as amended (29 U.S.C. Sec. 151, et
seq. ), herein called the Act. In its duly filed answer to the
complaint the Respondent, while admitting certain allega-
tions of the complaint, denied the commission of any unfair
labor practices.
Pursuant to notice, the hearing in this case was held
before me at New Orleans, Louisiana, on June 2, 1970. All
parties were represented and were afforded full opportunity
to be heard, to introduce relevant evidence, to present oral
argument, and to file briefs. Oral argument was waived.
Briefs were filed by counsel for the General Counsel and
the Respondent. Upon consideration of the entire record,
including the briefs of the parties, and upon my observation
of each of the witnesses as they appeared before me, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Bulk Transport, Inc., herein called the Company, a
Louisiana corporation with its principal office and place of
business located at Port Allen, Louisiana, is engaged as a
contract carrier to haul bulk and pulverant material,
primarily bulk cement. As part of its operations, the
Company operates a terminal located at New Orleans,
Louisiana, which is the only facility involved in this
proceeding. During the year immediately preceding the
issuance of the complaint herein, a representative period,
the Company received annual gross receipts exceeding
$500,000 and received in excess of $50,000 for delivering
materials from points located in the State of Louisiana to
points located outside the State of Louisiana.
It is admitted, and I find, that the Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Respondent is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
Whether the Union fulfilled its duty to fully disclose to
Aples what the latter's obligations were pursuant to a valid
union security clause before causing Aples' discharge for
failure to perfect membership in the Union.
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Trial Examiner: Upon a charge
filed on February 26, 1970, by Archie L. Aples, an
individual, the Regional Director for Region 15 of the
B. The Evidence
At all times material to this case , the Respondent and the
Company, were parties to a collective -bargaining agree-
ment effective March 1, 1968 , for 3 years , covering the
186 NLRB No. 47
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company 's employees employed at its New Orleans,
Louisiana, terminal . This agreement contained, among
other things , a union-security provision which required that
all new employees shall become and remain members in
good standing of the Respondent , as a condition of
employment, on and after the 31st day following the
beginning of the employment . It is conceded that the
union-security provision is lawful.
Archie Lee Aples , was hired by the Company in July 1969
and worked as a truckdriver from that time until February
14, 1970, at which time he was "suspended" from
employment upon the demand of the Respondent which
sent a letter to the Company on February 12, 1970 , asking
the Company to suspend Aples' employment because Aples
had refused to abide by the collective-bargaining agree-
ment between the Company and the Respondent and had
failed to perfect his membership in the Respondent.
Thereafter , Aples remained unemployed by the Company
until some time in April 1970 when his . membership in the
Respondent was perfected and he was reinstated by the
Company.
Although Aples admittedly knew , probably some time in
November or December 1969, that some of the employees
of the Company were members of the Union , he testified
that no one representing the Respondent had ever
contacted him with regard to joining the Union . Confirm-
ing Aples' testimony , both Joseph Guidry, Sr., and
Raymond Lapino , of the Respondent , testified that neither
of them had ever spoken to Aples before the latter was
discharged on or about February 14, 1970.
The only testimony in the record from which it could
possibly be inferred that Aples might have had some
information about the Union from a person connected with
the Union was the testimony of Harold A . Hebert, now
assistant terminal manager of the Company but in 1969, at
the critical dates herein , the day dispatcher . Hebert testified
that he knew , of his own knowledge , that as a matter of
practice , Harold Roberts, the union steward at the
Company's facility , placed union forms on the timecards of
all new employees informing them of the Union . Aples, on
the other hand , testified that he never received or saw any
such form attached to his timecard which was usually
handed to him by the dispatcher . Even assuming that Aples
did receive such a union paper , or card , the record reveals
that the forms distributed by Roberts were nothing more
than checkoff authorizations and assignments which did
not in any way convey to the reader that the employees of
the Company had to become members of the Respondent.
Nor did this said checkoff authorization state the amount
of the initiation fees or the amount of the dues necessary to
be paid to join the Union or where or to whom such
payments were to be made , or that the employees of the
Company were subject to a union -security clause . In fact,
the authorization read in such terms as would make the
reader believe that it was purely voluntary.
Aples further admitted in his testimony that he learned of
the existence of a union at the Company's facility through
conversations with other employees . He attempted to find
out more about the Union by speaking to Hebert who told
him that the Employer did not take care of union matters
but that the union steward did. When Aples finally did
contact Roberts, the union steward , he was told by Roberts
that he was no longer the union steward and could do
nothing about the matter . Significantly , Roberts , the only
individual who could testify as to whether he told Aples the
details concerning the necessity to join the Union and how
to effectuate membership , was not called by the Respon-
dent although , when questioned , Respondent's counsel
admitted that Roberts probably was still working for the
Company.
Hebert testified that at one time he did tell Aples that the
latter had to join the Union . However , Hebert's testimony
was limited to this one statement with regard to the
information he gave to Aples . Hebert did not testify that he
told Aples how to join the Union, where to join the Union,
how much it would cost to join the Union, or any other
details . Aples denied that Hebert or anyone else told him he
had to join the Union.
Lapino, secretary-treasurer of the Respondent , testified
that at one telephone conversation subsequent to Aples'
discharge by the Company, Aples admitted that he did talk
to the union steward some time about 6 or 8 weeks prior to
the time of the "knock off' letter and that the steward did
tell Aples about the Union . Again , this testimony of Lapino
could have been confirmed by testimony of Roberts who,
significantly , was not called by the Respondent . According-
ly, I do not credit Lapino's statement . And even if it were
credited , I cannot infer that the mere testimony that Aples
was "told about the Union" was sufficient to establish that
Aples was told about the initiation fees , what the dues were,
where the money was to be paid, to whom it was to be paid
and other details with regard to the union-security
provisions of the contract.
The remaining testimony that Roberts told Aples the
necessary details about perfecting union membership was
the hearsay testimony of business agent Guidry to the effect
that on or about the 11th or 12th of February Roberts told
him that Roberts had talked to Aples and that Aples was
not going to sign . However, even if this matter were not
hearsay I would not credit Guidry . Guidry also testified
that after Aples had been laid off he, Guidry, spoke to
Robichaux, terminal manager for the Company, who told
him that Robichaux had talked to Aples and that Aples said
that he would take care of the union matter. However,
Robichaux testified that he never directly talked to Aples
with regard to the latter's joining the Union. Accordingly,
because Robichaux is not involved in the outcome of this
proceeding and Guidry is, I credit the testimony of
Robichaux and do not credit Guidry.
The balance of the testimony relating to Aples'
knowledge of the Union is mostly innuendo . Thus, there is
testimony by Robichaux that Respondent 's advertisements
for drivers offered the information that the job was a union
job offering union benefits . Additionally, it would seem to
be established that notices of union meetings of the
Respondent were periodically placed on the bulletin boards
of the Company 's facility for information to the employees.
Also, the paychecks issued by the Company contained a
GENERAL TRUCK DRIVERS , LOCAL 270
space marked for deductions of union dues. Finally, there
was evidence introduced to the effect that Aples was given
several warning letters by the Employer with regard to his
conduct as an employee and that on the bottom of each
letter was the notation "cc: Teamsters Local No. 270." 1
C. Concluding Findings
The sum of all of the foregoing testimony leads to the
conclusion and the finding that although Aples had some
knowledge of the fact that some of the employees of the
Employer were members of a union called Local 270 and
that Aples might, indeed, have had some knowledge that he
was required to join Local 270, it is also significant that the
testimony and other evidence failed to reveal that Aples
was told by anyone connected in an authoritative way with
the Respondent that Aples had to join the Union pursuant
to a union-security clause in the agreement between the
Respondent and the Company; what was required of Aples
in order to perfect such membership and how, when, and
where to perfect such membership. It should be noted in
connection therewith that assuming Aples had knowledge
at all with regard to any of these matters, such knowledge
was imparted to him not through representatives of the
Respondent but rather through other media such as posted
meeting notices or information supplied by the officials or
employees of the Company.
The Respondent contends that since Aples had knowl-
edge of the Respondent gained through means other than
that supplied by the Respondent, nevertheless, Aples was
duty bound to perfect his membership in the Respondent
and that his failure to do so warranted the Respondent to
cause Aples' separation from his employment. Counsel for
the General Counsel contends, on the other hand, that the
Respondent's failure to fully inform Aples of the latter's
obligations pursuant to the union-security provisions of the
contract, and the causing by the Respondent of the
discharge of Aples constituted discrimination within the
meaning of Section 8(b)(2) and 8(b)(1)(A) of the Act
regardless of any independent knowledge that Aples may
have acquired with regard to the Respondent from other
sources. I find merit in the contention of counsel for the
General Counsel.
The Board has long held that, "when a Union requires a
new employee to perfect membership under a lawful union
security agreement, it has a duty to notify the employee, at
some point, as to what his `membership' obligations are. To
permit a union to lawfully request the discharge of an
employee for failure to meet his dues paying obligations,
where the provisions relating to such obligations are not
disclosed to the employee, would be grossly inequitable and
contrary to the spirit of the Act." 2
And, "where the protection of an individual employee's
right to continued employment is to be balanced against the
statutorily restricted right of the union to enforce a union-
i I consider irrelevant the testimony with regard to what occurred
between Aples and union officials Guidry and Lapino subsequent to Aples'
discharge by the Employer with the exception of the testimony containing
possible admissions made by Aples
2 Philadelphia Sheraton Corporation, 136 NLRB 888, 896 See also
Building Construction Workers Union 113 (James Luterbach Construction
Co), 167 NLRB 39. Teamsters Local Union No 122 (August A Busch &
Co), 173NLRB No 194
301
security agreement requiring membership as a condition of
employment, a union must show that it has dealt fairly with
the employee and given him clear notice of what is required
of him. Absent such a demonstration the individual's rights
must be held paramount and protected." 3
A showing that the Respondent gave clear notice to Aples
of what was required of him to perfect his membership in
the Respondent is clearly absent in this case. Neither
Guidry nor Lapino, the Respondent's agents who testified
in this proceeding, did anything to inform Aples of the
extent of his obligations at least until after Aples' discharge.
Moreover, and even more significant, is the failure of the
Respondent to establish that Union Steward Roberts acted
to inform Aples of what was required of him. Certainly,
newspaper advertisements and notices of meetings on
bulletin boards, or checkoff forms such as used by the
Respondent do not explain to a new employee the
significance of a union-security clause or the penalty for
failure to comply therewith. The mere fact that an
employee might learn to a certain extent that a union is
available to him and provides certain benefits is a matter
distinct from the union's affirmative duty to inform an
employee that he must join a union by a specified date on
penalty of losing his job. Having failed to notify Aples of
the existence and extent of his obligations under the
collective-bargaining agreement, the Respondent could not
then lawfully seek his discharge for failure to satisfy the
obligation.4
Moreover, the Respondent's fiduciary duty to inform
Aples of the latter's obligation under the union security
provisions exists independently from the Company's
obligation, if any, to notify Aples. Thus, even assuming that
Hebert, the Company's dispatcher, told Aples that the latter
had to join the Union, this would not be a fulfillment of the
Respondent's duty to inform Aples fully as to his
obligations with regard to joining the Respondent.5 And
even assuming that Aples had sufficient independent
knowledge that there was a union in the picture to have
alerted him as a prudent individual under the circum-
stances to make further inquiries with regard to union
membership, he was under no obligation to seek out the
Respondent to make such inquiries. A union-security
clause is contained in a collective-bargaining agreement for
the sole benefit of the Union and the Respondent alone was
therefore under a fiduciary duty to inform Aples of the
extent of his obligation under that agreement .6
Accordingly, I find and conclude that under all the
circumstances of this case the Respondent violated Section
8(b)(1)(A) and 8(b)(2) of the Act when it demanded and
obtained Aples' discharge.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activity of Respondent set forth in section III, above,
3 Local 545, IUOE (Joseph Saraceno & Sons), 161 NLRB 1114, 1121
4 Granite City Steel Company, 169 NLRB No 144 Building Construction
Workers Union 113, supra, Local 98D International Union of Operating
Engineers (Construction Field Surveys), 156 NLRB 545, 548
5 Building Construction Workers Union 113, supra, International Chemical
Workers Union Local 50, supra.
6 Building Construction Workers Union 113, supra
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurring in connection with the operations of the
Employer 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.
On the basis of the foregoing findings and upon the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By causing the Company to discriminate against
Aples, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(b)(2)
and (1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action in order to
effectuate the policies of the Act.
It having been found that the Respondent is responsible
for the discrimination suffered by Aples, it is recommended
that Respondent make Aples whole for any loss of pay he
may have suffered by reason of the discrimination against
him, by payment to him of a sum of money equal to that
which he would have earned as wages from the date of the
discrimination against him to the date of the reinstatement
of his employment with the Company, less interim
earnings, and in a manner consistent with the Board
policies set forth in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and the entire record in the case, and
pursuant to Section 10(c) of the Act, I hereby recommend
that General Truck Drivers, Chauffeurs, Warehousemen
and Helpers Local 270, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Ind., its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Bulk Transport, Inc.,
to discriminate against Archie L. Aples, or any other of its
employees in violation of Section 8(a)(3) of. the Act, as
amended.
(b) In any like or related manner restraining or coercing
employees of Bulk Transport, Inc., in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Make Archie Aples whole in the manner set forth in
the section entitled "The Remedy," above.
(b) Post at its offices and meeting halls, copies of the
attached notice marked "Appendix.' 17 Copies of said
notice, on forms provided by the Regional Director for
Region 15, after being duly signed by a representative of
the Respondent, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to members are customarily displayed.
Reasonable steps shall be taken by the Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material. These notices shall be posted by
Bulk Transport, Inc., if willing, at places where notices to its
employees are customarily posted.
(c) Notify the Regional Director for Region 15, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith .8
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted
by the Board and become its findings , conclusions , and order, and all
objections thereto shall be deemed waived for all purposes . In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing
an Order of the National Labor Relations Board."
9 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Bulk
Transport, Inc., at New Orleans, Louisiana, to dis-
charge or otherwise discriminate against Archie L.
Aples, or any of its employees, with respect to their
union membership, except to the extent provided by the
proviso to 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 Bulk Transport, Inc., in the
exercise of the rights guaranteed in Section 7 of the Act.
WE WILL make whole Archie L. Aples for loss of pay
suffered as a result of the discrimination against him.
GENERAL TRUCK DRIVERS,
CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS LOCAL 270, A/W
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS
OF AMERICA, IND. (BULK
TRANSPORT, INC.)
(Labor Organization)
GENERAL TRUCK DRIVERS , LOCAL 270 303
Dated By from the date of posting and must not be altered, defaced,
(Representative ) ( Title) or covered by any other material.
Any questions concerning this notice or compliance with
This is an official notice and must not be defaced by its provisions may be directed to the Board's Office, T6024Federal Building (Loyola), 701 Loyola Avenue, Newanyone . Orleans, Louisiana 70113, Telephone 504-527-6361.
This notice must remain posted for 60 consecutive days