Jacobs Transfer, Inc.

National Labor Relations Board - Board Decisions

Jan 19, 1977

227 N.L.R.B. 1231 (N.L.R.B. 1977)

JACOBS TRANSFER, INC.
Jacobs Transfer, Inc. and Daniel George and Drivers,
Chauffeurs and Helpers Local 639, affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America;
Teamster Local 639- Employers Health Trust;
Teamsters Local 639- Employers Pension Trust,
Parties in Interest
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, Local
Union No. 639; Teamsters Local 639-Employers
Health Trust, its Administrator, Trustees and
Agents: Alfred M. Bell, Frank DeBrouse, Alvin
Dobbin, Morris Davidson , Earl L. Marcey, Charles
A. Hite, Louis Macijeski, Robert Moore, Pope
Eberhardt ; Teamsters Local 639-Employers Pen-
sion Trust , its Trustees and Agents , Frank De-
Brouse, Alvin Dobbin, Morris Davidson , Earl L.
Marcey, Charles Hite, Louis Macijeski, Robert
Moore, Pope Eberhardt and Daniel George. Cases
5-CA-5308 and 5-CB-1639
January 19, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNINGS AND JENKINS
On November 14, 1975, Administrative Law Judge
Bernard J. Seff issued the attached Supplemental
Decision in this proceeding. Thereafter, Respondent
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
Union No. 639 (hereinafter Local 639), filed excep-
tions and a supporting brief. Respondent Trusts,
Trustees, Alternate Trustees, and Administrator
(hereinafter Trusts) also filed exceptions and a
supporting brief.' The General Counsel and the
Charging Party each filed separate cross-exceptions
to the Supplemental Decision of the Administrative
Law Judge and supporting briefs. In addition, Res-
pondents, Local 639 and the Trusts, each filed a
separate reply brief to the Charging Party's cross-
exceptions and brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions, cross-exceptions, supporting briefs, and
i Respondent Trusts are Teamsters Local 639 - Employers Health
Trust, its Administrator, Trustees and Agents, and Teamsters Local 639-
Employers Pension Trust, its Trustees and Agents The individual Trustees
of each Trust, as they appear in the caption, have been named as
1231
reply briefs and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.2
On January 11, 1973, in Jacobs Transfer, Inc., 201
NLRB 210, Case 5-CA-5308, the Board found that
Jacobs Transfer, Inc. (hereinafter Jacobs), violated
Section 8(a)(3) and (1) of the Act by unlawfully
discharging Daniel George for his concerted activi-
ties. Jacobs was ordered to "offer to Daniel George
immediate and full reinstatement to his former job,
without prejudice to his former rights or privileges"
will full compensation "for any loss of earnings." On
May 24, 1974, as a result of a continuing dispute over
the remedy, a backpay specification and notice of
hearing was issued. Under the supervision of the
Regional Director for Region 5, Jacobs and George
executed a compliance agreement on June 25, 1974,
which was amended on July 11, 1974, providing that
George would be reinstated at Jacobs' Franconia
GPO night operation and that Jacobs would make
George whole by tendering to the Health and Pension
Trusts the amounts necessary to restore George's
status, rights, and benefits under those plans. When it
appeared that compliance with the agreement had
been effected, the Regional Director closed Case 5-
CA-5308 on July 26, 1974.
This consolidated proceeding concerns the efforts
by Jacobs to comply with the Jacobs decision, as
implemented by the compliance agreement , and the
parallel efforts by Local 639 to frustrate such compli-
ance. We need not repeat here the chronology of
events which preceded the issuance of the complaint
in Case 5-CB-1639 on May 20, 1975, and the
amended backpay specification in Case 5-CA-5308
on May 30, 1975, as they are set out fully by the
Administrative Law Judge. The one clear fact that
emerges from this complex and protracted proceed-
ing is that Daniel George has been waiting for more
than 3 years for his unlawful discharge to be fully
remedied under the Board's Decision and Order in
Jacobs. Despite the fact that George and Jacobs
executed a compliance agreement, under the supervi-
sion of the Regional Director, which outlined precise-
ly the steps Jacobs had to take in order to comply
with the Board's Order, George has yet to be made
whole for the losses he suffered as a result of his
unlawful discharge. Instead, all compliance efforts
have been held hostage by Local 639 which has
sought to thwart such efforts at every possible
opportunity. Our primary concern in this proceeding
is to effectuate the Board' s Decision and Order in
Respondents and they are also encompassed by the designation "Trusts" in
this Supplemental Decision and Order
2 The request for oral argument is hereby denied as the record, including
exceptions and briefs, adequately presents the issues and positions of the
parties
227 NLRB No. 181
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jacobs as implemented by the terms of the subse-
quent compliance agreement, and to remedy the
unfair labor practices which have been committed by
Local 639 in its attempts to frustrate that Decision
and the compliance agreement implementing it.
In agreement with the Administrative Law Judge,
we find that Jacobs has not complied with the Jacobs
decision, as implemented by the compliance agree-
ment, due to the acts of its agents, the Trusts, in
refusing to accept the contributions on behalf of
George. Similarly, we also find that Local 639 and the
Trusts violated Section 8(b)(1)(A) and (2) of the Act
by their refusal to accept the contributions on behalf
of George. We agree with the Administrative Law
Judge that for the purposes of effectuating compli-
ance with Jacobs, as implemented by the compliance
agreement, the Trusts are agents of both Jacobs and
Local 639. It is clear from the record that both the
Health Trust and the Pension Trust were established
by agreements between the employer association,
representing Jacobs, and Local 639, pursuant to the
collective-bargaining agreement which preceded the
current National Master Freight Agreement
(NMFA) between the same parties. Under the
NMFA, members of the employer association, in-
cluding Jacobs, are required to submit to each Trust
contributions on behalf of their employees in the
amounts established by the collective-bargaining
agreements. Both the Pension Trust and the Health
Trust are administered by boards of trustees consist-
ing in each case of four Trustees, two elected by the
employer association and two appointed by Local
639. The Trustees of both funds have the authority to
amend the respective Trust agreements subject to the
terms of the collective-bargaining agreements. In
these circumstances, the Board has consistently
found that the Trusts are agents of each party to the
collective-bargaining agreement.3
We also agree with the Administrative Law Judge
that Local 639 violated Section 8(b)(1)(A) and (2) of
the Act by causing the Trusts to reject Jacobs' contnbu-
tions on George's behalf. The longstanding animosity
between Local 639 President Frank DeBrouse, a
union trustee for both Trusts, and George, resulting
from George's opposition to Local 639's incumbent
leadership, is well documented by the Administrative
Law Judge. The record clearly shows that DeBrouse
was instrumental in directing each Trust to reject
3 United Brotherhood of Carpenters and Joiners ofAmerica, Local #1913,
AFL-CIO, et a! (Fixtures Unlimited), 213 NLRB 363 (1974), enfd in part,
reversed in part, and modified in part 531 F 2d 424 (C A 9, 1976). In failing
to find an agency relationship between the respondent union and the pension
trust, the Ninth Circuit implied that it would have reached a different result
had there been a showing that the union controlled the trust . While we
respectfully disagree with the court 's finding , it should be noted that in the
present case , we find , infra, that the Union did control the Trusts for the
purpose of discriminating against George Moreover , we also note that the
Ninth Circuit enforced the Board's Order requiring the trust there to accept
Jacobs' contributions on behalf of George, even
though the Trusts had been fully apprised that the
contributions were made pursuant to the compliance
agreement and Board Order. DeBrouse told the
Trustees that George was on layoff status and that his
reinstatement violated the contract. Trust Counsel
Foley testified that this information regarding
George's layoff status was very important to the
Trustees in making their respective decisions to
return the contributions.
When the checks were finally returned to Jacobs,
the Trustees advanced conflicting and inconsistent
reasons for the rejection of the contributions. In the
September 16, 1974, letter returning the Health Trust
contribution, the Trustees stated that the check did
not cover the full "reinstatement" period and Local
639 had not participated in the compliance agree-
ment. Upon being informed that the eligibility period
established in the compliance agreement qualifying
George for health benefits conformed to the Trusts'
own eligibility rules , the Trustees changed position
and took a different course. Thus, in an October 25,
1974, letter, the Trustees complained that they had
not been a party to the agreement .4 The Trustees
cited for the first time their opinion that George had
been in "simulated employment," thus rendering him
ineligible for health benefits. The Trustees then
agreed that in any event George was on layoff status,
despite their knowledge that George had been
reinstated pursuant to an Order of the Board. In an
October 29 letter rejecting Jacobs' Pension Fund
contribution, the Trustees reiterated the argument
that George had been engaged in "simulated work"
and the fact that neither the Trusts nor Local 639 had
participated in the compliance agreement. However,
for the obvious reason that the Pension Trust check
was made out for the entire amount owed, the
Trustees in returning it could not, and did not,
contend that it was not for the full sum, as they had
done initially in rejecting the Health Trust check. In
these circumstances, we find that the reasons ad-
vanced for rejecting both checks were pretextual and
designed to obscure the true purpose behind the
Trusts' rejections of the contributions-which was
the denial of George's employment benefits at the
urging of Local 639. Accordingly, we find that Local
639 violated Section 8(b)(1)(A) and (2) of the Act by
the contributions on behalf of the discnminatee See also L & M Carpet
Contractors, Inc, 218 NLRB 802 (1975); Local 80, Sheet Metal Workers
Internationa l Association, AFL-CIO, et al (Turner-Brooks, Inc), 161 NLRB
229,234(1966)
4 Counsel for the Trusts, over 3 months after the contribution had been
submitted , devised this argument based on Artim Transportation System, Inc.,
193 NLRB 179 (1971) This case is clearly unsupportive of the Trustees'
position There, the pension fund had not been named in the backpay
specification , but in any event , the respondent employer there was ordered to
submit the necessary contributions to the fund
JACOBS TRANSFER, INC.
causing the Trusts to reject Jacobs' contributions for
discriminatory purposes.
In view of our above findings and the remedy we
provide, we find it unnecessary to consider at this
time whether Local 639 violated the Act by prosecut-
ing a grievance over George's reinstatement at
Jacobs' Franconia facility as provided in the compli-
ance agreement and thereafter filing a civil action
pursuant to Section 301 of the Act to compel
enforcement of the favorable disposition of that
grievance. As discussed, infra, to the extent that the
holdings in such proceedings are inconsistent with a
Board order, the Board order takes precedence.
Therefore, we do not adopt the Administrative Law
Judge's recommendations with respect to the allega-
tions in the complaint concerning this issue and
accordingly shall dismiss that part of the complaint.5
THE REMEDY
In fashioning a remedy to make George whole for
the losses he has incurred as a result of his unlawful
discharge and the unfair labor practices committed
by Local 639, we are mindful that "Congress has
invested the Board . . . with broad discretion to
order a violator `to take such affirmative action .. .
as will effectuate the policies of [the Act.]' 29 U.S.C.
§ 160(c)." N.L.R.B. v. Food Store Employees Union,
Local 347, Amalgamated Meat Cutters & Butcher
Workmen of North America, AFL-CIO [Heck's, Inc.],
417 U.S. 1, 8 (1974). In order to protect George's
eligibility and status under the Trust plans as an
employee-beneficiary-a status which in fact he
never lost-we shall order Jacobs to resubmit the
contributions to the Trusts as provided in the
compliance agreement and order the respective
Trusts to accept such payments.6
In this regard, we find merit to the argument
propounded by the Trusts that they should be
compensated for any additional costs which are
required for the restoration of George's rights under
the respective plans. We recognize that the Trustees
have a dual identity vis-a-vis the administration of the
Trusts. On one hand, the Trustees are agents of the
principals to the collective-bargaining agreement, in
this case Jacobs and Local 639, for the purposes of
accepting contributions and administering the Trusts
in accordance with the collective-bargaining agree-
ments. On the other hand, the Trustees must adminis-
ter the Trusts in accordance with each Trust agree-
5 We find that the present circumstances do not warrant an award to the
Charging Party of attorney 's fees and costs incurred by him here as a result of
the institution of the civil suit by Local 639 and the instant proceeding
Accordingly, we shall deny the Charging Party's request for such fees and
costs
6 See N L . R B v United Brotherhood ofCar enters and Joiners ofAmerica,
Local # 1913, AFL-CIO [Fixtures Unlimited], 531 F 2d 424,426-427 (C A
9, 1976)
1233
ment in order to comply with their fiduciary duties to
the Trusts. We do not find that these dual functions
are either incompatible or inconsistent with the
purposes of our decision herein. However, in view of
the claims by the Trustees that they must comply with
certain requirements of the Trust agreements in order
to accept Jacobs' contributions on behalf of George,
we will provide for the proportionate payment of
these additional administrative expenses by Jacobs
and Local 639. At the same time, these claims of the
Trustees will not be permitted to obscure the fact that
the Trusts must accept such contributions submitted
on behalf of George as though they had been
submitted as a customary employer contribution and
must restore to George his full rights, benefits, and
status under the Trusts which he would have other-
wise enjoyed but for his unlawful discharge and the
unfair labor practices of Local 639. Since the compu-
tation of these additional costs are to be determined
by the Regional Director during the compliance
stage, we are aware that the Respondents may cause
further delay in order to thwart the immediate
restoration of George's rights and benefits to which
he is entitled. In this regard, we note that the
obligation to pay these additional costs will not be
tolled until such payments are made, so that any
delay will only increase the liabilities of the parties.
We do not find it necessary, as requested by the
General Counsel, to amend the Board's previous
Order in Jacobs to encompass the terms of the
compliance agreement .7 The General Counsel's re-
quest was in response to the decision issued on
January 30, 1976, by the Honorable William B.
Bryant of the United States District Court for the
District of Columbia in Local Union No. 639, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America v. Jacobs Transfer
Company, Inc., 407 F.Supp. 125, in which Local 639
sought enforcement of the arbitration award, holding
that George had no right to reinstatement as provided
in the compliance agreement . Judge Bryant ruled that
the Regional Director's compliance agreement did
not automatically preclude enforcement of Local
639's arbitration award despite the fact that it was in
direct contravention of the compliance agreement.
However, in view of the instant unfair labor proceed-
ing, Judge Bryant stayed final determination of the
civil suit . He noted that the Board could choose to
amend its original reinstatement order to provide for
George's reinstatement in accordance with the coin-
7 The General Counsel made this request in his motion seeking amend-
ment of the order of the Board in Jacobs Transfer, Inc, 201 NLRB 210, to
which Local 639 filed an opposition The Charging Party filed a statement in
reply to Local 639's opposition and in support of the General Counsel's
motion
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pliance agreement . Should that occur , Judge Bryant
concluded, the court would be powerless to enforce
the arbitration award.
The compliance agreement at issue here was
reached after a backpay specification and notice of
hearing was issued by the Regional Director upon
determining that the Board 's Order in Jacobs had yet
to be carried out. While the backpay specification has
some of the attributes of a General Counsel's
complaint as it initiates a formal proceeding (see
Board Rules and Regulations , Series 8 , as amended,
Sec. 102 . 52, et seq.), it is distinguishable insofar as it is
based on a Board Decision in which a violation of the
Act has been found and the necessary remedy has
been ordered . When he supervised the compliance
agreement process , the Regional Director, in the
name of the Board , acted to bring about compliance
with the Board 's Order and to remedy the violation
which was already found . Thus, the Regional Direc-
tor was not acting on his own initiative . Rather, his
action was designed to carry out the Board 's intent
that its Order be properly implemented . It was only
after the compliance agreement had been reached
and it appeared that the remedial steps it provided
had been carried out that the Regional Director
closed the case in Jacobs prior to the issuance of the
instant amended backpay specification . We consider
the compliance agreement in this proceeding to be
Board action , and action , such as this, taken to
effectuate a Board order and to remedy the violation
of the Charging Party's statutory rights, must take
precedence over an arbitrator' s decision limited to
contractual rights.8 Carey v. Westinghouse Electric
Corporation, 375 U.S. 261, 272 (1963). Accord:
Alexander v. Gardner -Denver Co., 415 U .S. 36, 49-50
(1974).
Moreover , this consolidated proceeding arose be-
cause the Respondent Union set out to, and did,
frustrate the Board's original Order, as implemented
by the compliance agreement , in retaliation for
George 's exercise of Section 7 rights. By such
conduct , Respondent Union not only restrained and
coerced George in the exercise of Section 7 rights in
clear violation of Section 8(b)(1)(A) of the Act, but it
caused Respondent Jacobs (and the Trusts as Jacobs'
agents) to fail to make George whole for Jacobs'
violation of George 's rights and thereby violated
Section 8(b)(2) of the Act. So that there can be no
mistake about our primary intention to vindicate
Daniel George 's substantive rights, we incorporate
the terms of the compliance agreement in our remedy
here . As the Board's superior remedial authority can
be invoked at any time, this Decision takes prece-
8 It may also be found that a compliance agreement is Board action
regardless of whether it is instituted pursuant to a backpay specification and
notice of hearing See International Ladies' Garment Workers' Union, Local
dence over any arbitrator's decision bearing upon the
reinstatement rights of employee George. Carey v.
Westinghouse Electric Corp., supra.
In summary, having found that Respondent Jacobs
has failed to comply with the Board's Decision and
Order in Case 5-CA-5308 (201 NLRB 210) as
implemented by the compliance agreement of July
11, 1974, and having found that Respondent Local
639 and Respondent Trusts have engaged in certain
unfair labor practices, we shall order that the Respon-
dents cease and desist therefrom and that they take
certain affirmative actions designed to effectuate the
policies of the Act.
We shall also order the Respondent Jacobs retender
to the Trusts the amounts designated by the compli-
ance agreement of June 25, 1974, as amended on July
11, 1974, and the backpay specification of May 24,
1974, and amended backpay specification of May 30,
1975, in Case 5-CA-5308, so as to restore George's
status and benefits under those plans. In consider-
ation of the contentions of the Trustees that Jacobs
has not tendered such interest and administration
costs which are required under the Trust agreements,
we shall order Jacobs to tender such additional
payments required under the Trust agreements for
the period from the date of the unlawful discharge
until the date that its original payments, made in
accordance with the compliance agreement, were
rejected by the Trusts. As we have found that Local
639 was responsible for the Trusts' rejection of
Jacobs' original tender, we shall order Local 639 to
submit such interest and additional administration
costs for the period from the date that Jacobs'
original contributions were tendered and rejected
until the date of compliance with this Order.
We shall leave to the Regional Director to deter-
mine the amounts of the additional payments due the
Trusts and the appropriate division of such payments
between Respondents Jacobs and Local 639.
In addition, we shall order Local 639 to compensate
George for whatever out-of-pocket medical expenses
he incurred as a result of the unlawful rejection of the
contribution Jacobs made on his behalf.
CONCLUSIONS OF LAW
1. Respondent Jacobs Transfer, Inc., is engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Respondent International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local Union No. 639, is a labor
415-475 [Arosa Knitting Corporation ] v N L R B, 501 F.2d 823 (C A D.C,
1974), Poole Foundry and Machine Company v N L R B, 192 F 2d 740 (C.A
4, 1951), cert denied 342 U S 954 (1952)
JACOBS TRANSFER, INC.
organization within the meaning of Section 2(5) of the
Act.
3. Respondent Trusts and each of the Respondent
Trustees are agents of Respondent Jacobs Transfer,
Inc., and Respondent Local 639 within the meaning
of Section 2(13) of the Act.
4. Respondent Jacobs Transfer, Inc., by the acts
of its agents, the Trusts, in refusing to accept
payments tendered on behalf of Daniel George, has
not complied with the Board's Order in Case 5-CA-
5308, as implemented by the compliance agreement
of June 25, 1974, as amended on July 11, 1974.
5. Respondent Local 639, Respondent Trusts and
Respondent Trustees by discriminating against Dan-
iel George in causing or attempting to cause his
employer to discriminate against him in violation of
Section 8(a)(3) of the Act have violated Section
8(b)(1)(A) and (2) of the Act as alleged in Case 5-CB-
1639.
6. Respondent Local 639, by causing each of the
Respondent Trusts and Respondent Trustees to
refuse contributions proffered on behalf of Daniel
George by Respondent Jacobs pursuant to a compli-
ance agreement in Case 5-CA-5308, has engaged and
is engaging in violations of Section 8(b)(1)(A) and (2)
of the Act as alleged in Case 5-CB-1639.
7. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent Jacobs Transfer, Inc., Landover,
Maryland, its officers, agents, successors, and assigns,
shall:
1. Tender contributions on behalf of Daniel
George to Respondent Trusts, in order to make
Daniel George whole for the losses he suffered as a
result of his discriminatory discharge, as found in the
Board's original Decision and Order in Case 5-CA-
5308, in the amounts set forth in the backpay
specification of May 24, 1974, and amended backpay
specification of May 30, 1975, in Case 5-CA-5308.
2. Tender to Respondent Trusts, as provided in
the section herein entitled "The Remedy," whatever
administration costs and other expenses, including
interest payments, as are required by the Trust
agreements, from the date of the unlawful discharge
until the date Jacobs' tendered payments pursuant to
the compliance agreement of June 25, 1974, as
9 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
1235
amended on July 11, 1974, were rejected by Respon-
dent Trusts.
3. Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps the Respondent Jacobs has taken to
comply herewith.
B. Respondent International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local Union No. 639, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Discriminating against Daniel George in the
exercise of the rights guaranteed to him in Section 7
of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Tender to Respondent Trusts, as provided in the
section herein entitled "The Remedy," whatever
administration costs and other expenses, including
interest payments, as are required by the Trust
agreements, from the date Respondent Jacobs' origi-
nal tendered payments of the contributions on behalf
of Daniel George were rejected by Respondent Trusts
until the date of compliance with this Order.
(b) Reimburse Daniel George for his out-of-pocket
medical expenses amounting to $377 incurred as a
result of the refusal of Respondent Health Trust and
its Trustees to accept the contributions on behalf of
George.
(c) Post at its union halls in Maryland and
Washington, D.C., copies of the attached notice
marked "Appendix A."9 Copies of said notice, on
forms provided by the Regional Director for Region
5, after being duly signed by an authorized represen-
tative of Respondent Local 639, shall be posted by
Local 639, immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps
shall be taken by Local 639 to insure that said notices
are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps the Respondent Local 639 has taken to
comply herewith.
C. Respondent Teamsters Local 639-Employers
Health Trust, Its Administrator, Trustees and Agents,
and Respondent Teamsters Local 639-Employers
Pension Trust, Its Trustees and Agents, shall:
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Discriminating against Daniel George in the
exercise of the rights guaranteed to him in Section 7
of the Act.
(b) Refusing to accept the contributions offered by
Jacobs Transfer, Inc., to Respondent Trusts in order
to make Daniel George whole for the losses he
incurred as a result of his unlawful discharge,
particularly for the period of time (33 months) during
which no contributions to Respondent Trusts were
accepted on his behalf, thereby preventing George
from being made whole as set forth in the Decision
and Order of the Board in Case 5-CA-5308 (201
NLRB 210), as implemented by the compliance
agreement of June 25, 1974, amended on July 11,
1974.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Accept contributions to the respective Trusts on
behalf of Daniel George as set forth in the backpay
specification in Case 5-CA-5308, as modified by the
provisions of this Order.
(b) Restore to Daniel George, upon receipt of the
contributions from Respondent Jacobs, as set forth
above, all rights and benefits which George would
have earned or which would have accrued to him had
he been continually employed from the date of his
unlawful discharge to the date of his reinstatement, as
if employer contributions had been submitted in the
normal course of business.
(c) Post at their business offices in Maryland and
Washington, D.C., copies of the attached notice
marked "Appendix B." 10 Copies of said notice, on
forms provided by the Regional Director for Region
5, after being duly signed by authorized representa-
tives of Respondent Trusts, shall be posted by the
Trusts, immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to members are customarily posted. Reason-
able steps shall be taken by Respondent Trusts to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps the Respondent Trusts have taken to
comply herewith.
10 See fn 9, supra
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminate against Daniel
George or any other members by impeding them
from exercising the rights guaranteed them under
Section 7 of the National Labor Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights under Section 7 of the Act.
WE WILL tender to the Local 639 Health Trust
and Pension Trust whatever administration costs
and other expenses, including interest payments,
as are required by the Trusts agreements, from the
date Jacobs Transfer, Inc.'s originally tendered
contributions on behalf of Daniel George were
rejected by the Trusts until the date of our
compliance with the Board's Supplemental Deci-
sion and Order.
WE WILL reimburse Daniel George for his
medical expenses amounting to $377 incurred as a
result of the refusal of Respondent Health Trust
and its Trustees to accept the contributions on
behalf of George.
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA,
LOCAL UNION No. 639
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminate against Daniel
George or any other employees by impeding them
from exercising the rights guaranteed them under
Section 7 of the National Labor Relations Act.
WE WILL NOT refuse to accept the contribution
offered us by Jacobs Transfer, Inc., in order to
make Daniel George whole for the losses he
incurred as a result of his unlawful discharge,
particularly for the period of time (33 months)
during which no contributions to us were accepted
on his behalf, thereby preventing Daniel George
from being made whole as set forth in the
Decision and Order of the Board m Case 5-CA-
JACOBS TRANSFER, INC.
5308, as implemented by the compliance agree-
ment of June 25, 1974, amended on July 11, 1974.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights under Section 7 of the Act.
WE WILL accept contributions to the respective
Trusts on behalf of Daniel George as set forth in
the backpay specification in Case 5-CA-5308, as
modified by the provisions of the Board's Supple-
mental Decision and Order.
WE WILL restore to Daniel George, upon receipt
of the contributions from Jacobs Transfer, Inc., all
rights and benefits which George would have
earned or which would have accrued to him had
he been continually employed from the date of his
unlawful discharge to the date of his reinstate-
ment, as if employer contributions had been
submitted in the normal course of business.
TEAMSTERS LOCAL 639-
EMPLOYERS HEALTH
TRUST, ITS
ADMINISTRATOR,
TRUSTEES AND AGENTS
TEAMSTERS LOCAL 639-
EMPLOYERS PENSION
TRUST, ITS TRUSTEES
AND AGENTS
July 25, 1977
ORDER GRANTING MOTION FOR
RECONSIDERATION AND
CLARIFICATION OF ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On January 19, 1977, the National Labor Relations
Board issued a Supplemental Decision and Order in
the above-entitled proceeding.' Thereafter, on Febru-
ary 8, 1977, Respondent Teamsters Local 639-
Employers Health Trust, its Administrator, Trustees
and Agents, filed a motion for reconsideration and
clarification of Order requesting that the Board
clarify its Order to provide that Respondent is not
liable for medical expenses incurred by Charging
Party Daniel George from September 24, 1971,
through June 28, 1974, and hence it has no obligation
to reimburse George for any of his medical-related
expenditures during that period of time.2 Respondent
also asks that the Board revise its Order to state that
(1) Jacobs Transfer is not obligated to make health
1 227 NLRB No 181
2 References to Respondent Health Trust also include the individual
Trustees named in the caption
3 George incurred approximately $400 in medical expenses and $365 05
1237
contributions for George's 33-month reinstatement
period except for a period of 6 months ending June 28,
1974; (2) Daniel George should not be reimbursed for
medical expenses incurred during the period from
September 24, 1971, through June 28, 1974; and (3)
Respondent Health Trust is not liable for any benefit
amounts incurred by George between June 28 and
December 31, 1974.
We find merit to Respondent's request that the
Board clarify the Order in the above-entitled pro-
ceeding to provide that Respondent Health Trust is
not obligated to reimburse Charging Party George for
his medical expenses3 incurred from September 24,
1971, through June 28, 1974.
We note that our prior Order is based on the
compliance agreement of June 25, 1974, amended on
July 11, 1974, and that agreement did not provide for
such reimbursement. Nor have the General Counsel
and Charging Party requested such modifications in
the terms of the settlement reached in the compliance
agreement.4 Since our prior Order is based on the
compliance agreement, we see no reason now to
deviate from its substantive terms and, accordingly,
we shall grant the motion. We hereby deny Respon-
dent's motion in all other respects as lacking in merit.
It is hereby ordered that Respondent Health Trust's
motion be, and it hereby is, granted in the above-
discussed respects, and that the Order of January 19,
1977, in the above-entitled proceeding be, and it
hereby is, clarified as follows:
1. Substitute the following paragraphs for para-
graph C:
"C. Respondent Teamsters Local 639-Employ-
ers Pension Trust, its trustees and agents, shall:
"1. Cease and desist from:
"(a) Discriminating against Daniel George in the
exercise of the rights guaranteed to him in Section 7
of the Act.
"(b) Refusing to accept the contributions offered by
Jacobs Transfer, Inc., to Respondent Pension Trust
in order to make Daniel George whole for the losses
he incurred as a result of his unlawful discharge,
particularly for the period of time (33 months) during
which no contributions to Respondent Pension Trust
were accepted on his behalf, thereby preventing
George from being made whole as set forth in the
Decision and Order of the Board in Case 5-CA-5308
(201 NLRB 210), as implemented by the compliance
agreement of June 25, 1974, amended on July 11,
1974.
in health insurance premiums in the period of time from his unlawful
discharge until his reinstatement
4 Neither the General Counsel nor the Charging Party filed a response to
the instant motion
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
"2. Take the following affirmative action designed
to effectuate the policies of the Act:
"(a) Accept contributions to Respondent Pension
Trust on behalf of Daniel George as set forth in the
backpay specification in Case 5-CA-5308, as modi-
fied by the provisions of this Order.
"(b) Restore to Daniel George , upon receipt of the
contributions from Respondent Jacobs, as set forth
above , all rights and benefits which George would
have earned or which would have accrued to him had
he been continually employed from the date of his
unlawful discharge to the date of his reinstatement, as
if employer contributions had been submitted in the
normal course of business.
"(c) Post at its business offices in Maryland and
Washington , D.C., copies of the attached notice
marked `Appendix B.'5 Copies of said notice, on
forms provided by the Regional Director for Region
5, after being duly signed by authorized representa-
tives of Respondent Pension Trust , shall be posted by
Respondent Pension Trust , immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all
places where notices to members are customarily
posted . Reasonable steps shall be taken by Respon-
dent Pension Trust to insure that said notices are not
altered , defaced , or covered by any other material.
"(d) Notify the Regional Director for Region 5, in
writing , within 20 days from the date of this Order,
what steps Respondent Pension Trust has taken to
comply herewith.
"D. Respondent Teamsters Local 639-Employ-
ees Health Trust, its administrator, trustees and
agents , shall:
"(1) Cease and desist from:
"(a) Discriminating against Daniel George in the
exercise of the rights guaranteed to him in Section 7
of the Act.
"(b) Refusing to accept the contributions offered by
Jacobs Transfer, Inc., to Respondent Health Trust in
order to make Daniel George eligible for health
benefits provided by the Trust as is required by the
Decision and Order of the Board in Case 5-CA-5309
(201 NLRB 210), as implemented by the compliance
agreement of June 25, 1974, amended on July 11,
1974.
"(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
"2. Take the following affirmative action designed
to effectuate the policies of the Act:
"(a) Accept contributions on behalf of Darnel
George as set forth in the backpay specification in
Case 5-CA-5308, as modified by the provisions of
this Order.
"(b) Restore to Daniel George , upon receipt of the
contributions from Jacobs Transfer , Inc., as set forth
above , all rights and benefits for which George is
eligible as of June 28, 1974.
"(c) Post at its business offices in Maryland and
Washington , D.C., copies of the attached notice
marked `Appendix C .' 6 Copies of said notice, on
forms provided by the Regional Director for Region
5, after being duly signed by the authorized represen-
tative of Respondent Health Trust , shall be posted by
Respondent Health Trust , immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places , including all
places where notices to members are customarily
posted . Reasonable steps shall be taken by Respon-
dent Health Trust to insure that said notices are not
altered , defaced , or covered by any other material.
"(d) Notify the Regional Director for Region 5, in
writing , within 20 days from the date of this Order,
what steps the Respondent Health Trust has taken to
comply herewith."
2. Substitute the attached Appendixes B and C for
Appendix B of the Board 's Supplemental Decision
and Order.
IT IS FURTHER ORDERED that Respondent ' s motion
is denied in all other respects.
5 See fn 9, supra
6 See in 9, supra
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminate against Daniel
George or any other employees by impeding them
from exercising the rights guaranteed them under
Section 7 of the National Labor Relations Act.
WE WILL NOT refuse to accept the contribution
offered us by Jacobs Transfer, Inc., in order to
make Daniel George whole for the losses he
incurred as a result of his unlawful discharge,
particularly for the period of time (33 months)
during which no contributions to us were accepted
on his behalf, thereby preventing Daniel George
from being made whole as set forth in the
Decision and Order of the Board in Case 5-CA-
5308 , as implemented by the compliance agree-
ment of June 25, 1974, amended on July 11, 1974.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce employees in the
exercise of their rights under Section 7 of the Act.
JACOBS TRANSFER , INC. 1239
WE WILL accept contributions to the Pension
Trust on behalf of Daniel George as set forth in
the backpay specification in Case 5-CA-5308, as
modified by the provisions of the Board's Supple-
mental Decision and Order.
WE WILL restore to Daniel George , upon receipt
of the contributions from Jacobs Transfer , Inc., all
rights and benefits which George would have
earned or which would have accrued to him had
he been continually employed from the date of his
unlawful discharge to the date of his reinstate-
ment , as if employer contributions had been
submitted in the normal course of business.
the Regional Director of Region 5 issued a complaint dated
May 20, 1975, alleging that the Respondents have engaged
in unfair labor practices in violation of Section 8(b)(1)(A)
and (2) of the Act consolidated with a backpay specifica-
tion . A hearing took place in Washington , D.C., on varying
dates from July 29, 1975, in Washington , D.C. Briefs were
filed by the General Counsel , the Respondent Trustees, the
Union against whom the charge was filed and the Charging
Party.
Upon the entire record in the case and from my
observation of the witnesses , I make the following:
FINDINGS IOF FACT
TEAMSTERS LOCAL 639-
EMPLOYERS PENSION
TRUST, ITS TRUSTEES
AND AGENTS
APPENDIX C
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminate against Daniel
George in the exercise of the rights, guaranteed
him in Section 7 of the National Labor Relations
Act, as amended.
WE WILL NOT refuse to accept the contributions
offered by Jacobs Transfer, Inc., to Health Trust
in order to make Daniel George eligible for health
benefits provided by the Trust as is required by
the Decision and Order of the Board in Case 5-
CA-5309 (201 NLRB 210), as implemented by the
compliance agreement of June 25 , 1974, amended
on July 11, 1974.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce employees in the
exercise of their rights under Section 7 of the Act.
WE WILL restore to Daniel George , upon receipt
of the contributions from Jacobs Transfer, Inc., as
set forth above, all rights and benefits for which
George is eligible as of June 28, 1974.
TEAMSTERS LOCAL 639-
EMPLOYERS HEALTH
TRUST, ITS
ADMINISTRATOR,
TRUSTEES AND AGENTS
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: Upon a
charge filed against the above Union on December 6, 1974,
1. JURISDICTION
Jacobs Transfer Company, Inc., a District of Columbia
corporation with its principal office and place of business
located in Landover, Maryland, is engaged in the interstate
transportation and distribution of freight by motor carrier
in the District of Columbia and the States of Maryland and
Virginia. During the preceding 12 months Jacobs derived
from its operations gross revenues in excess of $50,000.
During the same period Jacobs shipped in interstate
commerce freight valued in excess of $50,000. The Interna-
tional Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America, Local No. 639, hereinafter
called the Respondent Union is and has been a labor
organization within the meaning of Section 2(5) of the Act.
At all times material herein Respondent Health and
Welfare Trust is and has been a trust with its principal
office and place of business in the Distnct of Columbia,
created and existing pursuant to a trust agreement entered
into by Respondent Union, various employers including
Jacobs and Alvin Dobbin and Morris Davidson as compa-
ny trustees , Louis Macijeski and Charles A. Hite as
company trustees , Frank DeBrouse and Earl Marcey as
union trustees , and Robert A. Moore and Pope Eberhardt
as alternate union trustees.
At all times material herein Respondent Pension Trust is
and has been a Trust Fund with its principal office and
place of business in the District of Columbia created and
existing pursuant to a Trust agreement entered into by
Respondent Union, various employers, including Jacobs
and Alvin Dobbin and Morris Davidson as company
trustees , Louis Macijeski and Charles A. Hite as alternate
company trustees , Frank DeBrouse and Earl Marcey as
union trustees, and Robert A. Moore and Pope Eberhardt
as alternate union trustees.
I find that Jacobs Transfer Company is an employer
engaged in commerce as defined in Section 2(6) and (7) of
the Act. I also find that International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of
America , Local Union 639, is a labor organization within
the meaning of Section 2(5) of the Act . I also find that the
Respondent Health and Welfare Trust and the Respondent
Pension Trust is a Trust Fund with its principal office and
place of business in the District of Columbia and at all
times material herein the Trustees are now agents of
Respondent Union acting on its behalf within the purview
of Section 2(13) of the Act.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNFAIR LABOR PRACTICES its agents Health and Welfare Trust and Trustees or in the
alternative from the Respondent . George is entitled under
the Board's Order that as a consequence of the refusal to
accept this money , George has suffered the loss of $2,111
from his pension account and has further suffered the loss
of 33 months pension coverage as a result of his unlawful
discharge . In order to be made whole as required by the
Board's Order , George is entitled (a) to have credited to the
pension plan in which he has a vested interest the amount
of $2,111 and (b) to have coverage for him under such plan
extended to include the aforesaid 33 months . Alternatively,
in order to make George whole as required in the Board's
Order, Respondent shall establish and maintain for George
a separate pension plan providing coverage comparable to
that to which he would have been entitled under the
aforesaid pension plan.
In order to properly evaluate the instant case it becomes
necessary to review in some detail the events which
preceded the filing of the instant proceedings.
The Charging Party , Daniel George , went to work for
Jacobs Transfer , Inc., on August 11, 1966, at a facility of the
employer known as the Ardmore Terminal and was
employed continuously at this place of employment until he
was discharged for "disloyalty" on September 24, 1971. As
it later developed George 's "disloyalty" consisted of his
forming a committee of reform and in this capacity he
issued a pamphlet charging that Local 639's president,
Frank DeBrouse, and the then vice president and general
manager of Jacobs, James Mills (who was formerly a
business agent for Local 639) were engaged in a combina-
tion in opposition to the interest of the Union's members.
As a result of George 's activity in forming the committee
for reform of Local 639 , he became the spearhead of
opposition to the incumbent officers of the Local Union. It
is not too much to say that from the genesis of the
movement to oust the incumbents, George became the
focal point of a long series of events designed to get rid of
him. At the time of his discharge , September 24, 1971, he
had already embarked on a campaign as a candidate to
become the president of the dissident group. In the
pamphlet mentioned above he charged that DeBrouse and
his supporters were engaged in a combination in opposition
to the interest of the union members . He filed a series of
grievances : one was to complain that he was not assigned to
premium pay , long-run deliveries (over 40 miles); and
grievances over his assignment concerning overtime. In
order to eliminate George from coverage in the union
contract the Company invited him to accept a supervisory
position . He also grieved about violation of seniority rules
and starting time rules . These matters were brought to the
attention of the Union 's executive board and when no
action was taken he complained to the Eastern Conference
of Teamsters that Local 639 was not enforcing the Union's
contract . It soon became evident that Vice President Mills
was determined to get rid of George . In fact the newsletter
prepared by George referred to threats of physical harm
against him . It was significant that when George was
discharged the reason given was disloyalty . The discharge
took place without George having first been given a 10-day
warning notice as required in the collective -bargaining
agreement. After his discharge George requested neutral
A. Background
On January 11, 1973, in Jacobs Transfer, Inc., 201 NLRB
210, the Board found that Jacobs had unlawfully dis-
charged George and ordered Jacobs to reinstate George
and make him whole.
In seeking to comply with the Board's Order Jacobs on or
about the dates indicated took the following action:
(a) On or about July 15, 1974, Jacobs reinstated George
to a position as regular freight driver at its Francoma,
Virginia , location , thereby displacing John Lester , the least
senior employee member of Respondent at that location.
(b) On or about June 25 , 1974, Jacobs tendered to George
backpay in the amount of $9,370.88, interest computed at 6
percent per annum in the amount of $ 1,123.88 and vacation
pay in the amount of $171.90.
(c) On or about June 27 , 1974, Jacobs tendered to
Respondent Health Trust payment on behalf of George in
the amount of $298.80.
(d) On or about June 27, 1974, Jacobs tendered to
Respondent Pension Trust payment on behalf of George in
the amount of $2,111.
(e) On or about September 10, 1974, Respondent Union
processed before the Joint Maryland -District of Columbia
Area Committee agreements against Jacobs on behalf of
John Lester based upon Lester's having been displaced at
Jacobs ' Francoma , Virginia , location , as a result of Jacobs'
reinstatement of George.
(f) On or about October 25, 1974, pursuant to Section 301
of the Act , Respondent Union filed and prosecuted in the
United States District Court for the District of Columbia a
civil action against Jacobs based on Jacobs reinstatement
of George.
(g) On or about October 25 , 1974, Respondent Union, by
its agent Respondent Health and Welfare Trust, refused to
accept payment in the amount of $298 . 80 tendered to it by
Jacobs on behalf of George.
(h) On or about October 29 , 1974, Respondent Union, by
its agent Respondent Pension Trust , refused to accept
payment in the amount of $2,111 tendered to it by Jacobs
on behalf of George.
As a result of the above events Respondent has engaged
in and is engaging in unfair labor practices as defined in
Section 8(b)(I)(A) and (2) of the Act.
Because of the facts which will be elucidated in the
instant decision the Board issued an amended backpay
specification in Case 5-CA-5308 alleging that George had
not been made whole as required by the Board's Decision
and Order.
On or about October 25 , 1974, Respondent , by its agents
Health and Welfare Trust and the Trustees named in the
caption of the case refused to accept payment tendered to it
on behalf of George . It is further alleged that as the result of
Respondent 's refusal through its agents Health and Welfare
Trust and the Trustees named in the complaint to accept
payment on behalf of George which is entitled under the
Board 's Order to make him whole, George has incurred
out-of-pocket medical expenses in the amount of $377. In
order to be made whole as required by the Board 's Order
George is entitled to payment in the amount of $377 from
JACOBS TRANSFER , INC. 1241
arbitration by a disinterested third party and he stated he
would not be bound by any decision of the Maryland-
District of Columbia Joint Area Committee . This commit-
tee upheld the discharge and refused to refer the matter to
neutral arbitration . While the contract does contain certain
grounds which permitted the discharge without 10-days'
notice , these specific provisions did not mention disloyalty
as the basis for such action.
The major defense asserted by Respondent Jacobs was
that the Board should defer to the decision of the Joint Area
Committee , insisting that this decision should be regarded
as a neutral arbitration decision and cited in support of this
position that the criteria set forth in the Spielberg Manufac-
turing Company, 112 NLRB 1080 (1955), had been met. The
Administrative Law Judge in Case 5 -CA-5308 stated in his
decision that George did not voluntarily submit the dispute
to the contract procedures , did not agree to be bound by the
result , and asked the committee to disqualify itself and to
submit the dispute to a neutral arbitrator for disposition.
He also found that the decision itself was not consistent
with the purposes and policies of the Act . In affirming the
decision of the Administrative Law Judge , one Board
member stated, among other reasons, the submission to the
Joint Committee 's arbitration award would not satisfy the
requirements of Spielberg because the Committee was
"arrayed in interest against the grievant." The action of the
Joint Committee served to rubberstamp the decision of
Local 639.
The Charging Party contends that the real motive for the
Maryland-District of Columbia Joint Area Committee
upholding the discharge of George was to lay the ground-
work of the ruling that George was ineligible to run for
office in the election scheduled for December 1971. In
pursuance of the same purpose George 's fellow candidates
on the committee for reform slate were ruled ineligible for
failure to meet an attendance requirement rule, which was
later found to be illegal by the Department of Labor and by
the United States Court of Appeals for the District of
Columbia as decided on March 8 , 1974, in civil action No.
73-1938 . By these maneuvers the incumbents attempted at
the outset to defeat opposition to them by ruling all of the
committee for reform ineligible to run for office. However,
Teamsters International president , Frank Fitzsimmons,
ruled , on December 29, 1971 , that George was eligible to
run for office despite the fact that he was not currently
employed in the industry as a result of his discharge by
Jacobs. This discharge was being contested by Jacobs in the
case before the National Labor Relations Board. The C
case was heard by Administrative Law Judge Schneider
who found the Company guilty of unfair labor practices in
violation of Section 8(a)(3) and ordered George reinstated
with backpay , full seniority , and all rights and privileges
previously enjoyed by him. Some of the candidates who
were ruled ineligible had been working on evening shifts
and this fact precluded their attending the requisite number
of Local Union meetings . This was later ruled illegal by the
Department of Labor and the United States Court of
Appeals for the District of Columbia because it rendered
more than 90 percent of the union membership ineligible to
run for office . When the election was finally held on
January 23, 1972 , it resulted in the incumbent DeBrouse
winning with 800 votes to 570 for George . Because of the
numerous election irregularities which had taken place
George filed charges on May 12 , 1972, with the Secretary of
Labor . Thereafter , the Department of Labor set the election
aside because of the irregularities described above and
ordered that a new election be held. At the new election
DeBrouse was again elected and George defeated by
approximately the same number of votes as on the occasion
of the first election.
Local 639's secretary -treasurer notified George by letter
on August 29, 1972 , that he would be placed on withdrawal
involuntarily , retroactively as of May 1972 "since you have
not worked within the industry ." George unsuccessfully
attempted to appeal this ruling internally within Local 639.
On September 22, 1972 , he nevertheless was placed on
involuntary withdrawal status retroactively as of May 11,
1972. George refused to accept the withdrawal card and
again unsuccessfully sought to appeal the matter to the
International Union , but the International Union ignored
the appeal.
B. The Closing of the Ardmore Terminal
At the request of George 's employer , Jacobs Transfer,
Inc., the Maryland-District of Columbia Joint Area Com-
mittee conducted hearings on October 2 and 3, 1972, on a
proposed change in operations that was to result in closing
the terminal at Ardmore , Maryland , where George had
worked since 1966 . The change of operations hearing was
ex parte as to George since he was not notified and knew
nothing about it until after the Board had issued its Order
of January 11, 1973, affirming the Administrative Law
Judge's Decision.
Jacobs' submission to the Joint Area Committee ex-
plained that the terminal was closing for lack of work
except as to a small amount that would be transferred to
Baltimore . Specifically , Jacobs' president, Grubbs, stated in
writing that the work at Ardmore would be "substantially
eliminated" and soon "almost totally eliminated" with the
remaining work at Ardmore which was described as
minimal . The president of the Baltimore Teamsters Local
557 (the Baltimore Local to which the Ardmore employees
were transferred) sent George a copy of the change of
operations sometime after January 11, 1973. President
Fabula informed George that Local 557 had agreed to
transfer only three men to Jacobs ' Baltimore terminal and
Fabula made it clear that , if George came to Baltimore, he
would not have a job but would be placed in layoff status. It
should be noted that George had a substantial , good-faith
basis for concluding that he would be placed on layoff if he
accepted the transfer to Baltimore . As a result of this
information George consulted with his attorney and
decided under these circumstances he could not accept a
transfer to Baltimore since the transfer would simply mean
layoff in Baltimore instead of Washington , D.C., and he
would be out of Local 639. He believed that he had other
options under his labor contract in Washington , D.C., area
that would entitle him to reinstatement at other locations of
Jacobs Transfer, Inc., in the Washington area without
having to be redomiciled.
On the basis of undisputed facts, United States District
Court Judge Hart concluded on May 10, 1973 , that George
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been required to take a withdrawal card in violation of
the requirements of Local 639's own constitution and
bylaws , in violation of the requirements of the Landrum-
Griffin Act, in reprisal for his activities opposing the
incumbent offices of the Union , and also in reprisal for
George's complaining to the Secretary of Labor about
election irregularities.
C. Judge Hart 's Order
Shortly thereafter , Judge Hart of the United States
District Court for the District of Columbia certified the
results of the election that had been held on December 16,
1973, and entered an order directing Local 639 to take no
adverse action with respect to the membership rights of
George based upon his nonemployment in the industry
pending final disposition of the proceedings before the
National Labor Relations Board and for 3 months thereaf-
ter.
D. The Compliance Agreement
The compliance agreement finally settling Case 5-CA-
5308 was executed on June 25 , 1974, in accordance with
which Jacobs Transfer , Inc., agreed to reinstate George at
its Franconia (GPO) operation on June 28 , 1974, perma-
nent regular freight driver replacing the least senior
employee . The compliance agreement further provided that
Jacobs would make contributions to the Pension and
Health and Welfare Funds retroactively in such amounts as
were necessary to make George whole . The Company
would pay George full backpay with interest . Jacobs
Transfer Company immediately carried out the terms of the
compliance agreement by providing George with net
backpay to which he was entitled and by sending checks to
the Pension and Health and Welfare Funds in the requisite
amounts.
George was reinstated by Jacobs at GPO night-contract
job in Franconia , Virginia, on July 15, 1974 , and Jacobs
tendered payments on behalf of George pursuant to the
compliance agreement to the industry Health and Welfare
and Pension Funds . These payments were thereafter
returned and were never deposited.
At the time George was reinstated at the GPO night-
contract job, he displaced the least senior man employed
there , John Lester . Lester was upset about the potential loss
of his job and testified that he called Local 639 's offices to
complain and spoke to Business Agent Furman Jenkins.
However, Lester testified that he never filed a grievance
with Local 639 and , although Local 639 was under subpena
to produce all relevant documents pertaining to Lester's
alleged grievance , the record does not contain a single
document signed by Lester authorizing Local 639 to
proceed in his behalf. In fact, it developed at the hearing
that , when Lester was shown the grievance that allegedly
concerned his complaint , he testified that he had never seen
the paper before and that he did not sign any written
grievances . Lester also testified that he was not interested in
filing a grievance with Local 639 because he was assigned
other work by Jacobs at its Franconia , Virginia, location.
He has not lost any pay by virtue of George bumping him
and is currently employed by Jacobs.
Joseph Trerotola , International Director for the Eastern
Conference of Teamsters , advised that there "is no question
that the National Labor Relations Board has superior
authority over the Grievance Committee as a matter of law
.... Thereafter, the Local 639 did not strike Jacobs to
enforce the committee awards . It did, on October 25, 1974,
file suit pursuant to Section 301 of the Act in the United
States District Court for the District of Columbia to enforce
the so-called Lester agreement . The Board has intervened
in that proceeding and has filed a motion to dismiss. The
court has not yet taken any action on the lawsuit.
Although Local 639 appears to have made an extraordi-
nary effort to pursue this controversy in the name of Mr.
Lester, it appears to have neglected to inform Lester of the
prosecution of the grievance . In this regard, Lester testified
that he had never been informed by Local 639 that a
grievance had been filed in his behalf. While on the witness
stand Lester was shown all relevant documents pertaining
to Local 639's prosecution of "his grievance ," and he
testified that he had never seen them before. Further , Lester
testified without contradiction that he was not present
during the deliberations of the Joint Maryland-District of
Columbia Area Committee and that Local No. 639 had not
informed them of the decision of that Committee. More-
over , Lester did not know that Local No . 639 had filed a
suit in the United States District Court for the District of
Columbia to enforce the grievance award and he could not
identify the relevant court document . Lester testified that
he was content with the situation as it currently exists and
has no grievance against George.
The Joint Maryland-District of Columbia Area Commit-
tee appears in the case in the posture of an arbitrator. Its
arbitration decision in support of Local 639 is in direct
contravention of the Board's decision as described in the
Board's compliance determination. The issue of how to
reconcile the Board's remedial powers with an arbitrator's
authority to enforce contracts was decided by the Supreme
Court in Carey v. Westinghouse Electric Corp., 375 U.S. 261
(1964). In language clearly applicable here, the Court ruled
that in disputes which could be heard by both an arbitrator
and "the superior authority of the Board may be invoked at
any time," that while "arbitration awards concerning unfair
labor practices may later end in conflict with Board rulings
... the possibility of conflict is no barrier " to arbitration
and that "should the Board disagree with the arbitrator the
Board's ruling would of course take precedence." The
Supreme Court explicitly reaffirmed Carey during its last
term in Alexander v. Gardner -Denver Co., 415 U.S . 36,49-50
(1974).
E. The Animus of Local 639 Against George
The catalogue of the efforts made by Local 639 to
eliminate George from his employment with Jacobs and
then to disqualify him as a member of the Union is
evidenced by a long series of actions which it undertook
against George . The Joint Maryland-District of Columbia
Area Committee upheld George 's discharge from Jacobs
and was thereafter reversed by the Board in the Jacobs
Transfer, Inc., 201 NLRB 210, with Chairman Miller
finding that the Committee was arrayed in interest against
George . The conduct of Local No . 639 in the first election
JACOBS TRANSFER, INC.
which resulted in extensive litigation before the United
States Department of Labor and in the United States
District Court for the District of Columbia overturned the
election . DeBrouse on numerous occasions has vilified
George as a dissident radical and as a troublemaker. Local
No. 639 began a deliberate and concerted effort to issue
George a withdrawal card while he was not working in the
industry due to his unlawful discharge from Jacobs in order
to prevent George from maintaining his candidacy for
elective office within the Union. Local 639 was persistent in
this effort as is shown by the fact that it issued George
withdrawal cards on three separate occasions resulting in
two injunctions issued by Judge Hart in the United States
District Court for the District of Columbia. Indeed, Judge
Hart found in his order of June 27, 1973, that George was
issued a withdrawal card in reprisal for his activities in
opposing the incumbent officers of the Union and in
complaining to the Secretary of Labor. Local 639 further
engaged in dilatory tactics in processing George's grievance
of February 12, 1973, and, thereafter, did not represent
George in the grievance hearing. The Eastern Conference
Joint Area Committee, which ultimately decided George's
grievance , rejected his position despite George 's compelling
arguments that he should be reinstated to a Jacobs'
operation in the Washington, D.C., area. It is also signifi-
cant to point out that the Conference Committee, despite
the request of both George and Jacobs, refused to allow the
matter to be heard by a neutral arbitrator although
provisions for this type of action is provided in the contract.
Furthermore, Local 639's participation in and the decision
to return the payments tendered by Jacobs on behalf of
George to the Health and Welfare Trust and the Pension
Trust were caused by the Union. It should also be noted
that Local 639 persisted in attempting to process the so-
called Lester grievance including seeking court enforce-
ment thereon despite the evidence that Lester was not really
interested in the grievance . It is also true that Local 639, as
a further evidence of its bad faith, chose to ignore George's
request to intervene in the proceeding despite the possible
impact on his job. It should be contrasted with the lack of
action of the Union in processing George's grievance of
February 12, 1973, seeking reinstatement at the Jacobs,
Washington, D.C., operation. From all of the above it is
apparent that the conduct of Local 639 directed against
George has demonstrated that the Union has failed in its
duty of fair representation with respect to grievances and
appeals filed by George.
Respondent Union's counsel iterated and reiterated the
fact that the filing of the lawsuit is not an unfair labor
practice. As a general rule this is correct. However, the
Board and the courts have not hesitated to find the
processing of a grievance and the filing of a lawsuit to be an
unfair labor practice when the prosecution of the lawsuit
was conducted in bad faith in order to subvert an
individual's statutory rights. See Local 445, International
Union of Electrical, Radio and Machine Workers, AFL-CIO
(Sperry Systems Management Division), 216 NLRB 173
(1975), in which Members Fanning, Jenkins, Kennedy, and
Penello, upon remand from the Second Circuit, held that
the prosecution of a grievance and the fihng of a lawsuit
pursuant to Section 301 of the Act to enforce the grievance
1243
award constitutes a violation of Section 8(b)(3) of the Act.
When Local 639 prosecuted the Lester grievance without
Lester's consent through the grievance procedure and in the
United States District Court it sought to subvert George's
statutory rights to reinstatement to a Jacobs, Washington,
D.C., area operation with full backpay in violation of
Section 8(b)(1)(A) and (2) of the Act.
F. The Trustees Were Obligated To Accept the
Payments Offered as Part of the Jacobs' Compliance
With the Board 's Order
Jacobs tendered checks in the amount of $298 to the
Washington Motor Truck Transportation Employees
Health and Welfare Trust and of $2,111 to the Washington
Motor Transportation Employees Pension Trust on behalf
of George. In letters of September 16 and October 29, 1974,
counsel for the Trust Funds returned both of Jacobs'
checks and at all times material herein the Trusts have
refused to accept the payments tendered by Jacobs on
behalf of George.
If the Pension Trust was to prevail in rejecting Jacobs
tender of $2,111 in George's behalf, he would forfeit
pension benefits in the industry from the date of hire with
Jacobs in 1966 to the date of his reinstatement in July 1974
because the rules of the Pension Trust require that an
employee have 10 years of uninterrupted employment in
the industry for the pensions to vest. Furthermore, George
would lose Health benefits in the amount of $298 if the
Health and Welfare Trust continued to refuse the tender of
this sum of money.
In the backpay specification in order to secure full
backpay for George in compliance with the Board's Order,
the Regional Director names both the Pension Trust and
the Health and Welfare Trust as well as the Trustees of the
respective Trusts as agents of Jacobs Transfer, Inc., and
hence they are obligated to accept payments made on
George's behalf by Jacobs. The Board has held that in
circumstances where the trust was established pursuant to
collective-bargaining agreement between employer associa-
tions and the union , where the trustees of the trust consist
of an equal number of representatives of the employers and
of the union, where the trustees representing the union are
appointed by the union, and where the master labor
agreement gives the trust viability requiring contributions
to the trust fund at rates set by negotiations of the
successive collective -bargaining agreements , the trustees
are deemed agents of the employers and unions who
participated therein.
The Pension Trust was established December 12, 1956,
by agreement between an employer association (to which
Jacobs belongs) and Local No. 639. The Health and
Welfare Trust was established in 1952 by agreement
between an employer association (to which Jacobs belongs)
and Local No. 639. In entering into the Pension Trust and
the Health and Welfare Trust agreements , the parties were
acting pursuant to a collective-bargaining agreement,
predecessor to a current National Master Freight agree-
ment between the same parties. The National Master
Freight agreement obligates members of the employer
associations , including Jacobs, to make pension payments
on behalf of their employees to the Pension Trust and the
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Health and Welfare Trust established by the Trust agree-
ments.
In these circumstances the Board has required a party to
a pension or Health and Welfare Fund to make contribu-
tions to such funds as part of a backpay order remedying
unfair labor practices of an employer or a union. See Artim
Transportation System, Inc., 193 NLRB 179 (1971);
N.LR.B. v. International Association of Bridge, Ornamental
Reinforced Iron Workers, et al., Local 377, AFL-CIO, 454
F.2d 1175, 1176 (C.A. 9, 1972).
From a reading of the cases it is therefore clear that there
is no basis to support the Pension Funds' and the Health
and Welfare Funds' denial of agency status . For the Board
has not deemed it essential to reach a finding that an
employer participant of a trust fund has the right to
dominate , direct, or control the activities of the trustees or
of the funds. Rather, the Board, in finding an agency
relationship between an employer and a trust fund, merely
requires that the trust funds and their trustees be required
to accept contributions by employers on an employee's
behalf and to administer said contributions as though they
had been made by an employer contributor. It should
further be noted that Congress has made it clear that where
National Labor Policy is concerned, "Strict rules of agency
should not be applied ...." N.L.R.B. v. General Metals
Products Company, 410 F.2d 473, 475 (C.A. 6, 1969), cert.
denied 396 U.S. 830 (1969). In accordance with the above
indicated body of law, the Health and Welfare and Pension
Funds and their Trustees should be ordered to accept the
payments tendered to them by Jacobs on behalf of George
as set forth in the backpay specification.
With respect to the refusal of the Trust Funds to accept
the payments required by the compliance agreement
reached by Jacobs and the National Labor Relations
Board, it is contended that both Section 8(b)(1)(A) and (2)
of the Act were violated through the rejection of the
payments by the Health and Welfare Trust and the Pension
Trust on the theory that the Trust and their Trustees are
agents of the Union. In addition, the General Counsel
argues that Local No. 639 violated Section 8(bXIXA) and
(2) of the Act by causing the Health and Welfare Trust and
the Pension Trust to deny George employment benefits due
him in compliance with the Board's decision in Jacobs
Transfer, Inc., 201 NLRB 210 (1973). It should be pointed
out that substantial animosity exists between Local No. 639
and George essentially because George has seriously
challenged incumbent President DeBrouse in two intra-
union elections . Furthermore, both DeBrouse and his vice
presidential running mate , Marcey, are the two union
representatives on the Health and Welfare Trust and the
Pension Trust and Marcey voted against accepting the
contributions (DeBrouse abstained) as to the two employer
representatives. Thus, the record provides ample basis for
the conclusion that Local No. 639 through its president,
DeBrouse , violated Section 8(b)(1)(A) and (2) of the Act by
causing the Trust to deny George substantial employment
benefits by rejecting Jacobs' payments on his behalf.
G. Questions of Law Raised by Respondent Union
and the Trust
Repeated through the course of the hearing before me
counsel for the Union objected to the receipt in evidence of
documents which were claimed to be irrelevant as not being
encompassed within the allegations of the complaint. It was
also argued that the complaint was vague and was not set
forth with sufficient specificity in order to apprise the
Union of the matters it would have to defend. In this
connection it should be pointed out that the instant
complaint was issued in Case 5-CB-1639 on May 20, 1975.
If the Union felt that the complaint was insufficient and
vague it should have filed a motion for a bill of particulars
long before the opening of the heanng which took place on
July 29, 1975.
Respondent Union also claimed at the heanng that the
instant matter should be held in abeyance pending the
issuance of a decision by the United States District Court
for the District of Columbia since the court action con-
cerned the identical matters encompassed in the complaint.
In this connection it is elementary that the NLRB has
exclusive jurisdiction over unfair labor practice cases even
though it enjoys concurrent jurisdiction with the court. The
law is well settled on this point as has been set forth in the
Supreme Court case known as Smith v. Evening News
Association, 371 U.S. 195 (1962), in which case there was a
303 action and simultaneously an 8(b)(4) case. The Board
reached one conclusion and the lower courts reached an
exact opposite decision on an identical statement of facts.
When the case got to the Supreme Court, the Court held
that, even though the results are diametrically opposed,
enforcement would be granted on both cases.
Respondent Union filed a motion to dismiss the subpoe,na
duces tecum which requested the appearance of the NLRB
Regional Director to testify and bring into the hearing
books, records, memoranda, and rough notes relating to the
discnminatee . I granted the General Counsel's motion to
quash the subpena. The subpena was too broad in its scope
and it did not appear that the information requested was
necessary in the successful handling of the case. Counsel
adduced evidence concerning certain events that took place
in 1971, 1972, 1973, and 1974 which events transpired
outside of the 10(b) period. I admitted this evidence as
background material essential to an understanding of the
history of the case all of which sheds light on the essential
aspects of the matter.
Both the Union and counsel of the Trust Funds denied
allegations in the complaint that the said Trust Funds were
agents of both the Company and the Union as found by the
Board in United Brotherhood of Carpenters and Joiners of
America, Local #1913, AFL-CIO, 213 NLRB 363, fn. 1
(1974):
The General Counsel excepts to the failure of the
Administrative Law Judge to find that the Carpenters
Pension Trust for Southern California and its trustees
are agents of the Respondent Union and therefore
obligated to accept payment from it for credit to the
account of the Charging Party herein and to administer
said account as though such payment was made by an
employer-contributor. We find merit in the General
JACOBS TRANSFER, INC.
Counsel 's exception . It is clear on the record herein that
the trust in question was established by an agreement
between employer -associations and the United Brother-
hood of Carpenters and Joiners of America for its
southern California district councils and union locals,
with which the Respondent Union is affiliated , referred
to in the trust agreement as "the Union," pursuant to a
collective-bargaining agreement between the same
parties or their precedessors ; that the board of trustees
of the trust consists of an equal number of representa-
tives of the employers and of the "Union"; that the
trustees representing the "Union " were appointed by,
and are removable by, the "Union"; and that the
current master labor agreement and its predecessors
continue to give the trust viability , requiring contribu-
tions to the trust fund at rates set by negotiation of the
successive collective-bargaining agreements . In these
circumstances , we find that the trustees herein are
agents of the Respondent (Local 80, Sheetmetal Workers
International Association, AFL-CIO, et at, 161 NLRB
229 (1966), and may appropriately be required to accept
contributions by the Respondent on the Charging
Party's behalf and to administer said contributions in
the same manner in which they would have been
administered if made by an employer-contributor
(Local Union No. 38 Sheet Metal Workers ' International
Association, AFL-CIO (Mid-Hudson Sheet Metal Inc.),
194 NLRB 76 (1971)). Accordingly, in order to effec-
tively remedy the unfair labor practices found to have
been committed by the Respondent herein , we shall
require that such contributions be accepted and admin-
istered in the manner sought by the General Counsel.
Conclusion
I agree with the conclusion of the General Counsel as set
forth in his brief and so find.
With regard to the backpay specification (Case 5-CA-
5308) which was issued by the Regional Director following
noncompliance by Jacobs with the Board's Order in Jacobs
Transfer Company, 201 NLRB 210, and further which
names Local 639 as a party in interest, it is contended that
both the Health and Welfare Trust and the Pension Trust
and all of their Trustees are agents of Jacobs. As agents,
their refusal to accept the contributions was Jacobs'
responsibility. This refusal to accept contributions resulted
in noncompliance with the Board's Order and with the
compliance agreement. Thus, under the Board's Order and
the compliance agreement, the backpay specification re-
quests that George be restored to the status he would have
been in but for the discriminatory discharge. A condition of
such coverage is that the Trust Funds accept the contribu-
tions. Since Jacobs is responsible for the Trust Funds'
nonacceptance, it is responsible for noncompliance. Alter-
natively, assuming, arguendo, that the aforementioned
agency is not found, Jacobs itself would be obligated to
provide George with comparable coverage and a pension
and medical plan as but for Jacobs' unlawful discharge of
George he would not have lost coverage under the Trust
Funds. Thus, Jacobs, itself, under this alternative theory,
must restore the equivalent of the status quo since its
unlawful conduct created the problem in the first place.
1245
Regarding the charges in Case 5-CB-1639, it is contend-
ed that Section 8(b)(1)(A) and (2) of the Act as violated by
Local 639 which caused the Trust Funds to deny George
employment benefits accruing to him pursuant to the
Board's Order in Jacobs Transfer, Inc., supra. In this regard,
it is noted that this portion of the case against Local 639 is
closely related to the backpay specification against Jacobs.
Common to both proceedings is the issue of who is
responsible for the fact that George is not covered by the
Trust Funds. It is submitted that both are responsible,
Local No. 639 for discriminatory reasons, and Jacobs
agency principles.
In Case 5-CB-1639, the theory is that Local No. 639 for
discriminatory reasons caused the Trust Funds to refuse
coverage to George. Thus, Local 639 is responsible for the
noncoverage. In the backpay specification even assuming
arguendo that Local 639 cannot be shown to have discrimi-
natorily caused the noncoverage, Jacobs, acting through its
agents (the Trust Funds), refused Trust Fund coverage and
this refusal constituted noncompliance with the Board's
Order and the compliance agreement.
It is further contended that Local 639 violated Section
8(b)(1)(A) of the Act by processing the so-called Lester
grievance. Similary, Local 639's conduct of instituting a 301
suit against Jacobs, after George and Jacobs had reached
the compliance agreement which the Regional Director
approved challenging George's reinstatement in the Wash-
ington, D.C., area was deemed violative of Section
8(b)(1)(A) of the Act. Both of these actions by Local 639
would deem to have been motivated by the animosity of
Local No. 639 against George and to be inconsistent with
Local No. 639's obligation as the 9(a) representative of
George. Further, both of these actions served to interfere
with important statutory rights possessed by George
pursuant to the Board Order requiring his reinstatement
and full backpay in violation of Section 8(b)(1)(A) and (2)
of the Act.
From the foregoing, it can be seen that Jacobs met its
requirements under the compliance agreement which it
executed with the Regional Office and but for the insistence
of Local 639 that it would not accept payments for the
Health and Welfare and Pension Funds it is clear that the
said Local is guilty of violations of the Act as set forth
above. I so find.
CONCLUSIONS OF LAW
1. Respondent Jacobs Transfer, Inc., has complied with
the terms of the compliance agreement it entered into with
the Regional Director of Region 5. It was prevented from
full compliance because both the Union and the Trusts
refused to accept the contributions proffered by Jacobs on
behalf of George. To the extent that Jacobs did not force
the issue of acceptance of the said contributions it will be
required to do so. The Trust Funds will be ordered to
accept the contributions tendered by Jacobs. Furthermore,
the Respondent Local Union having been found to have
violated Section 8(b)(1)(A) and (2) of the Act has been
found to have committed unfair labor practices as enumer-
ated above. I so find.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. 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 Union and Respon-
dent Trusts engaged in certain unfair labor practices , I shall
recommend that Respondent be ordered to cease and desist
therefrom , and from like and related unfair labor practices,
and that it take the affirmative action provided for in the
recommended Order below, which I find necessary to
effectuate the policies of the Act.
Having found that Respondents unlawfully discrimi-
nated against George and refused to accept the contribu-
tions offered by Jacobs in compliance with its agreement to
make such offers it will be recommended that the Respon-
dent be ordered to again offer the payments to the two
funds and the two Trust Funds be ordered to accept such
payments.
[Recommended Order omitted from publication.]