Langendorf Division

National Labor Relations Board - Board Decisions

Jun 1, 1978

236 N.L.R.B. 656 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bakery Salesmen's Local Union 227, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America and Clare D. Parker and American Bakeries (Langen- dorf Division), Party in Interest. Case 19-CB 2884 June 1, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JLNKINS AND PENELI.0 On December 21, 1977, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings.' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge's recommended Order includes a provision requiring the Employer to comply immediately with the Union's request to grant Parker the job of long-haul driver as of April I, 1977, with attendant seniority and other rights and privileges. Although the Employer was named as Party in Interest in the complaint, was served with all documents and pleadings, and appeared at the hear- ing, it was not named as a Party Respondent. More- over, the General Counsel failed to include in his complaint a request for that remedy, and also appar- ently failed to inform the Employer he was seeking that remedy until the close of the hearing. We there- fore find that the remedy ordered by the Administra- tive Law Judge is inappropriate. See Pen fand Pencil Workers Union, Local 19593, A FL (Parker Pen (Com- pan'l), 91 NLRB 883 (1950). Accordingly, the afore- mentioned portion of the Administrative Law Judge's recommended Order shall be stricken in its entirety.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Bak- ery Salemen's Local Union 227. affiliated with the International Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of America, Seattle, Washington, its officers, agents, and representatives, shall take the action set forth in the said recom- mended Order, as so modified: I. Delete the last, unnumbered, paragraph of the Administrative Law Judge's recommended Order. 2. Substitute the attached notice for that of the Administrative Law Judge.) m The Respondent hats excepted to certain credibhlits findings made by the Adninistratise l.aw Judge. It is the Board's established polico not to over- rule an Adminlistrative Law Judge's resolutions with respect to credibility unless the clear preponderance ,f ;ill of the rele vant evidence convinces us that the resolutions are incorrect. Stuandard Dry HWiall Products. Inc.. 91 NliRB 544 (1950), enfd. 188 F.2d 362 i('A 3, 1951). 'We have carefully examined the record and find no basis for reversing his findings. 2 We also clarify the Administrative Iav Judge's award of backpay to make cleat that Respondent's hackpa? liahility is terminated 5 days after receipt hby the (Charging Party Mlid the Fnplphiser ccf Respondent's request to grant the Charging Party the April I long-haul driver position discriminato- t'-i denied hint Mlillri, rt l.ola t nit,n :'l i ?711 oic the Irniled Brotherhood o't Carpetnlen and Joiner ( 4 *cr ii , .4 c 1. ( lO ( 4 neri in Rigger, Inc ), 193 995 (1971 i. I he Adcmiistratse iaus Jnludgge lad;ierterint) failed to crinform the no- tice to his recommennnded Order. APPENDIX Noi ll( ' To MEMBiRS PosiI )D BY ORDI)IR 01 r Tiii NAI'IONAI. LABOR RiI .AIIONS BOARD An Agency of the United States Government W-. w .li NOI tell employees of American Bak- eries (Langendorf Division) that we caused one of our members to be given a job instead of a nonmember, because of the latter's lack of mem- bership status. Wi witL. NOI cause the aforesaid Employer to prefer one of our members for a job instead of a nonmember. because of the latter's lack of mem- bership status. Wl: WILLI, NOI in ans other manner interfere with, restrain, or coerce employees of the afore- said Employer in the exercise of rights guaran- teed them in Sectioni 7 of the Act. W .WiiL request said Employer to give Clare D. Parker the job of long-haul driver as of April 1, 1977. together with attendant seniority and other rights and privileges, which job we caused the Employer to give, instead, to one of our members. Wit wili make said Parker whole for any loss he may have sustained, plus interest, by our 236 NLRB No. 64 656 BAKERY SALESMEN'S LOCAL UNION 227 causing him not to get a job with said Employer of long-haul driver as of April I. 1977. BAKERY SALESMEN'S LOcAI. UNION 227, AFFILIATED WITH TtIE IN1E RNAI()N AI. BROTHERHOOD OF TEAMSISERS. CIAUI IFFitRS. WAREHOUSEMEN AND HELPE:RS ()F AMIE-RI(A DECISION STATEMENT OF THE CASEF STANLEY GILBERT. Administrative Law Judge: Based upon a charge filed by Clare D. Parker. an individual. on April 6, 1977, the complaint herein was issued on May 24, 1977. The complaint alleges that Bakery Salesmen's Local Union 227. affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as Respondent or Local 227, violated Section 8(b)(2) and (I)(A) of the National Labor Relations Act, as amended (one incident of the lat- ter). The complaint was amended at the start of the hearing to allege the filing of an amended charge on September 20, 1977. and an allegation of a second incident violative of Section 8(b)(l)(A) of the Act. Respondent by its answer, as amended, denies that it violated the Act as alleged in the complaint, as amended. Pursuant to notice, a hearing was held before me in Seat- tle, Washington. on September 27 and 28. 1977. Appear- ances were entered on behalf of all parties. including the "party in interest," American Bakeries (Langendorf Divi- sion), hereinafter referred to as the Companyv or Emploxer. Briefs were timely) filed by the General Counsel and coun- sel for Respondent. Upon the entire record m in this case and from m, obser- vation of the witnesses as thev testified, I make the follow- ing: FINDIN;S oF FA('I [ TiE BL SINESS F iTH E MPI.()Y R IN, '()[ 1) The Employer is, and has been at all times material herein, a Washington State corporation with an office and place of business located at Seattle, Washington. It is en- gaged in the business of production and wholesale sales and deliveries of bread and bakery products. During the past 12 months, which period is representative of all times material herein, it sold and shipped, from its Seattle facil- ities, finished products valued in excess of $50,000 to points outside the State of Washington, and it purchased and caused to be transferred and delivered to its Seattle facilities goods and materials valued in excess of $50,000 which were transported to said facilities directly from States other than the State of Washington. During said past 12 months the Employer had a gross volume of retail sales in excess of $500,000. As is admitted by Respondent, the Emplover is, and has been at all times material herein, an emploxer engaged in I In (jeneral ( ounsel's brief Ihere ere unopposed inolilln to, i)orreL the transcript. a5id mollions hoae been gralnted lid the Ir;lnsi rlp tori-rcctld commerce within the meaning of Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED As is admitted by Respondent, it is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES Chronological Summary of Undisputed Facts The Company employs various classifications of em- ployees including transport drivers who are represented by Respondent and transport maintenance personnel who are represented by a sister local of Respondent, Local 44. Llovd Menzel, the Company's garage superintendent since February 1969. posted a notice dated March 23, 1977, of an opening "for the 5th trip on the Berkeley transport." 2 The "Berkeley transport" is the term used by the Company to describe the truck run of close to 2 days to Berkeley and other points. Other transport drivers make "local" runs. Both categories of drivers are, and were at the time mate- rial herein, represented by Respondent. Garage mainte- nance men are, and were at the time material herein, repre- sented by Local 44. Menzel supervises and does, and has done for several years. the hiring and firing of transport drivers and garage maintenance men. During the time ma- terial herein, Lloyd Carter, regional manager of American Bakeries, was acting as manager of its Seattle plant, the plant involved herein. Parker. during the time material herein, was employed as a garage maintenance man. He has been employed by Re- spondent since February 1973. On occasions he was a relief driver substituting for transport drivers, and had made, prior to September 1976, four to six Berkeley runs and a number of local runs. At the time material herein and for 1-1/2 to 2 years prior to the hearing, Parker was qualified as a driver. There is no dispute as to his qualifications for the job of driver and in the latter part of April 1977 he became a temporary driver apparently for the "longhaul" or Berkeley runs. and thereafter became a member of Re- spondent. Wendell Vern Chittick was employed by Menzel on Sep- tember 18. 1976, as a temporary driver, substituting for permanent, full-time drivers who were on vacation or ab- sent for some other reason (in place of Parker). Shortly after he was hired he became a member of Respondent. Parker was the only person to bid on the aforesaid post- ed job. but it was awarded to Chittick in the latter part of March and he began working as a permanent, full-time long-haul driver on April 1, 1977. Shortly after Chittick was awarded the job. both Chittick and Parker, individ- uallv, had a conversation with John Tran, secretary-trea- surer and an admitted agent of Respondent, with regard to the job being given to Chittick instead of Parker. : hi joih W.al a: permnlrient job as opposed lo a temporary job and Is also icferred tor :* Iong-h.lil transport drier 657 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Issues There are three issues in this case raised by the com- plaint and answer thereto: 1. Whether Respondent's conduct with respect to the awarding of the aforementioned posted job to Chittick was violative of Section 8(b)(2) of the Act; 2. Whether, in the aforementioned conversation be- tween Tran and Chittick, Respondent, by statements of Tran, violated Section 8(b)(l)(A) of the Act; and 3. Whether, in the aforementioned conversation be- tween Tran and Parker, Respondent, by statements of Tran, violated Section 8(b)(l)(A) of the Act. Although the conversations Tran had with Chittick and Parker occurred after the awarding of the job to Chittick, they will be considered first, since they have a bearing on a resolution of the issue with respect to the awarding of the job to Chittick instead of Parker. A. The Violations of Section 8(b)(l)(A) Chittick, when called as a witness by the General Coun- sel, testified that "just prior to the first day of April" he went to Respondent's office to pay his dues, at which time he met Tran for the first time and had a conversation with him about his getting the posted job (ostensibly instead of Parker). He further testified that the following statement contained in his pre-trial affidavit is in accord with his recollection of the incident. I made a trip to Seattle and spoke to Tran alone in his office. I asked what was going on, and he told me that I was going to work. He said he'd looked at the books and found I was an all-paid-up member, and so he went to bat for me. He said he'd checked the books before doing anything about it. He indicated that Clare Parker had also wanted the job. He said he backed me because I was already a Local 227 mem- ber. There was absolutely no discussion of a bargain- ing unit or bargaining unit members. I don't recall any talk about jurisdiction at that time. Tran was never questioned about the above testimony. When Chittick was called as a witness by Respondent, he testified that he "can't say for sure" whether Tran used the words "227 member" or "227 man," but he further testified that he could not recall ever hearing the term "227 man" used. There is credible testimony in the record that the terms "44 man" or "227 man" are used to indicate the classification of an employee by the bargaining unit to which he belonged. I am of the opinion that Chittick's uncontradicted testi- mony set forth hereinabove should be credited and that it would be inappropriate to infer that Tran referred to him as a "227 man" instead of a "Local 227 member." I do infer, however, that Chittick must have reasonably under- stood from what was stated to him by Tran, that he (Tran) intervened on his (Chittick's) behalf in the Company's de- termination of to whom to award the long-haul job because he (Chittick) was a member of Local 227 and Parker was not. Parker also had a conversation with Tran shortly after Chittick was awarded the job for which Parker was the only one to bid.3 It appears from Parker's credited testi- mony that he went to Respondent's office to talk to Tran about the award of the job to Chittick after Menzel told him that Chittick was given the job, and that Carter and "the Union" had so decided, because Carter "didn't want to make waves with the Union" and he (Parker) "wasn't a member of 227." 4 Parker testified that he walked into Tran's office and asked him why Chittick got the job and that Tran "said he was a 227 member and he paid his dues and that he would stand behind him a hundred percent." Parker further testi- fied that Tran "also said I wasn't a 227 member." Parker also testified that he asked Tran "if the company had any say-so of who they put on any job and he [Tran] said no." Parker further testified that there was no mention of "bar- gaining units" or "work jurisdiction." Tran admitted that he had a conversation with Parker in which Parker asked him "why Chittick got the job instead of himself." He testified that he "expressed the fact that Chittick . . . had been working since September of the pre- vious year." He also testified that he made no statement "as to the reason why Chittick got the job" instead of Par- ker. He subsequently testified that he stated to Parker that he did not know the Company's reason, that he supported Chittick for the job, and that he "told the company I think what they should do is move him [Chittick] as a vacation man into the job." Parker was the more convincing witness, and, moreover, the statements which he testified Tran made are substan- tially the same as Tran's statements to which Chittick testi- fied without contradiction. Although Parker admitted that Tran "probably" said that Chittick had been a relief driver for about 6 months and that he also said it was "sort of fair" that he get the job, said admission is no basis for discrediting his above described testimony. It is noted that Tran was not questioned as to whether he made the state- ments attributed to him by Parker and therefore Parker's testimony with respect thereto was not categorically de- nied. In the circumstances, I am of the opinion that Parker's testimony should be credited. The legal issue remains as to whether or not the state- ments made by Tran to Chittick and Parker constitute vio- lations of Section 8(b)(1)(A) of the Act. While no case was cited to me that was directly in point, I am of the opinion that the statements did restrain and coerce employees with- in the meaning of said section. In effect, the statements amounted to a confession that Respondent had caused the Employer to award the job to Chittick because he was a member of Respondent and Parker was not, conduct which would be violative of Section 8(b)(2) of the Act (as found hereinbelow). It would follow that statements to employees of the Company that Local 227 had engaged in such un- lawful conduct would tend to restrain and coerce said em- ployees within the meaning of Section 8(b)(l)(A) of the Act. It is noted that Chittick was on layoff status when the bid notice was posted and therefore was unaware of it 4 Menzel testified that he told Parker that he did not get the job because he was not a member of L ocal 227. and he did not den) the other portion of Parker's testimony of what he (Menzel) said to Parker 658 BAKERY SALESMEN'S LOCAL UNION 227 B. The Violation of Section 8(b)(2) The issue with respect to the allegation of a violation of Section 8(b)(2) of the Act is whether Respondent did cause, or attempt to cause, the Employer to award the job to Chit- tick instead of Parker because the former was a member of Local 227 and the latter was not. In effect, Respondent's counsel did admit at the hearing that, if such were the facts, they would require a finding of a violation of Section 8(b)(2).5 However, at the hearing and in his brief, counsel for Respondent contends that Respondent's actions were based upon provisions in its contract with the Company and/or an established practice, Set forth hereinbelow are findings of fact, based upon credited testimony, which are pertinent to a resolution of the aforementioned issue. It is found from uncontradicted and credited testimony of Menzel that he did the hiring and firing of the Emloyer's drivers. It is also found from the credited and uncontra- dicted testimony of Menzel and Parker (and admitted in the testimony of Resondent's representatives) that Menzel intended to give the new job to Parker until he was in- structed by Carter to give the job to Chittick. The events leading up to said instruction, and an analysis thereof, are set forth hereinbelow. Edward Tyler, business agent of Respondent, when called as a witness by Respondent, testified that, in mid- March 1977, he and Tran were in the Company's "plant" when "there was a message passed" to them that Menzel wanted to talk to them and so they went to the "shop": that Menzel informed them that he was planning on put- ting on a new run; that he had a man in the garage (a "Local 44 man") that he wanted to put on it; that he plan- ned to put the job up for bid; and that Tran said it "was fine with him." It is noted, however, that, when he was called as a witness by General Counsel, he testified that he did not know how Respondent "learned of the job being posted for bid." Tran, when he was called as a witness by General Counsel, testified that in the first part of March he received a telephone call from Menzel. His testimony as to their conversation on the telephone is that Menzel in- formed him that the Company "was thinking about putting on another run"; that Menzel said he "was going to put it up for bid, and if nobody bid on it, his intent was to have Clare [Parker] bid on it"; and that he "told him all right." He further testified that he thereafter talked only' one time to management and that it was in Carter's office. Menzel did not testify to any meeting or conversation with Tran or any other representative of Respondent con- cerning the new job prior to a meeting in Carter's office,6 nor was he questioned about any such meeting or conver- sation. He further testified that he sent a copy of the posted notice to Respondent, but Tran testified it was never re- ceived. Therefore, it is apparent that Tran must have been advised of the new job and notice with respect to it either This admission is supported by Radio Officers' 'Unon of the Commercial Telegraphers Lnion, A4 FL IA H. Bull Steamurhip Compane/ v N L R B.. 347 U.S. 17 (1952) The meeting in Carter's office {attended by Tran, TNler. Menzel. and Carter) was with respect to the a.iarding of the new job by telephone (as Tran testified) or in a meeting with Men- zel in the garage (as Tyler testified); and that, whichever it was, Tran did not originally oppose Menzel's intention to give the new job to Parker. The only witness who testified as to how the meeting in Carter's office happened to be arranged is Tyler. He testified without contradiction, and his testimony is credited, that, I or 2 days before the meet- ing in Carter's office, he and Tran met with Menzel in Respondent's garage and discussed the new job. According to his credited testimony, "Menzel said that Parker was the only one who bid the job," and "at that point John Tran discussed the name of Chittick." He further testified that Tran said "that Chittick was the man to have that job" because "he was presently working in that capacity" and because of "the past practice and the historic way of going into that job was through qualifications and this man was qualified to do this." 7 According to Tyler's credited testi- mony, Menzel disagreed and it was "decided," at Tran's suggestion, to meet with Carter. It is inferred from the credited testimony that, prior to his raising of Chittick's name with Menzel and after he was informed of the new job and Menzel's intention to give it to Parker, Tran dis- covered that Chittick was a member of Respondent and was employed as a temporary driver by Respondent. Three witnesses testified with respect to the meeting in Carter's office: Tran, Tyler, and Menzel. Carter was sub- poenaed by General Counsel but did not comply there- with. Tran testified that Menzel said "that he wanted Parker to have the job"; that he was "the only one that . . . bid for the job"; and that he responded that he thought Chit- tick "had a right to the job." Tran's testimony continues as follows: THE WITNESS Well, my way of explaining it was that I thought that Vern Chittick, who had been working there since September of the previous year, had paid his dues in effect as far as putting time in and being laid off on every other week, or something of this na- ture. You see, he'd work for a month maybe and then go for a week or two without a job, and then he'd work another month, a month-and-a-half, and go a week or two without a job,8 and I thought that through natural progression and historically in the company they move people from the vacation spot into the per- manent work, So, mine was to bring this up to him and remind him of this fact. Tran further testified that Carter agreed with him and stat- ed that "it's only right that the man comes up through the ranks." Tran also testified that he "could have mentioned" that Chittick "should have some sort of seniority," that he "figured that he [Chittick] was pretty close to the six months or over the six months to have some sort of senior- ity." In addition, Tran testified that Carter "indicated" that "he [Carter] was going to contact his higher-ups," and that It is noted that Parker was also qualified and had served as a relief driver prior to Chtltick's employment, but was not a member of Local 227 at the time he substituted for transport drivers. It is noted that Chittick did not work during the entire month of Febru- ary 1977 659 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he (Tran) thought Bernard Fordan "would be the man that he would contact." Tyler testified that Menzel stated as his reasons that Par- ker should have the job because he had been employed "for eight years," that he was qualified "to drive the run, because he'd done it before" and that he was the only one who bid for the job. In essence. Tyler corroborated Tran's testimony as the reasons he advanced for giving the job to Chittick. When he was asked on cross-examination by the General Counsel whether Tran explained "why six months was an important feature," Tyler testified that he could not recall. Menzel testified that he took the position at the meeting that Parker was entitled to the job because he was the only one to bid, that he was eligible to bid on a "seniority ba- sis," and "that Chittick couldn't bid on it because he hadn't worked for us for a year, according to the contract." He further testified that Tran "admitted that Chittick wasn't entitled to bid." Menzel further testified that, when he took the position that Chittick was not eligible to bid. Tran responded that Chittick had worked for the Company with the idea that he would probably be on steady,9 that he has "done a good job" for the Company, "so I think he should be entitled to it." Menzel also credibly testified that either Carter or Tran said that Parker is not entitled to the job because he is not a member of Local 227 and that "227 members should be bidding on the job." Menzel further credibly testified that Carter did not say that he was going to check with someone and that at the meeting Carter in- structed him to give the job to Chittick.'? In addition Men- zel credibly testified that he told Parker that the reason he did not get the job was that he was not a member of Local 227. I credit Menzel's testimony that either Tran or Carter stated that Parker should not get the job because he is not a member of Local 227. It is apparent from the record that, but for the interven- tion of Respondent's representatives on behalf of C'hittick, Parker would have been given the job on which he bid. It is inferred from the above credited testimony of Menzel as to what was said at the meeting in Carter's office and so to what he told Parker the reason was he did not get the job, from the credited testimony of Chittick and Parker as to 9 Menzel testified that when he hired Chittick he told him iI was for a "temporary" job and did not recall telling him anything to lead him to believe that he was going to get a permanent job. 10 Fordan, the Company's manager of industrial relations and personnel, testified that Carter consulted him about giving the job to Parker who w;ls a member of Local 44 and the only one to hid: that he asked Carter if there was someone entitled to bid who was on layoff: that Carter said he did not know and would get back to him; that the next daty C arter called and reported that there was a relief man who had been periodicills laid off; that he told Carter that "under our agreement with Local 227 it wits our obhga- tion to recall people from layoff in the position they were laid off:. and that he suggested to Carter "that he do that in this case." It Is apparent from Fordan's testimony that at least the first conversation which he related ha - ing with Carter could not have been after the imeeting in ('arter's office (attended by Tran. Tyler, Menzel. and Carter), because it appears thitl according to what was said, Carter knew nothing about Chittick. While it s possible that the second conversation occurred after said meeting, it would not appear to be of an) significance because the uncontradicted and crcdit- ed testimony of Menzel reveals that, before the meeting concluded. ( Carter instructed him to give the job to Chittick. what I ran told each of them why Chittick, and not Parker, got the job, and from the credited testimony of Parker as to what Menzel told him was the reason he did not get the job, that the governing factor in awarding the job to Chit- tick, and not to Parker, was the former's membership in Local 227 and the latter's lack of membership therein. It is concluded, based upon said inference, that Respondent caused the Employer to award the job to Chittick, and not to Parker, in violation of Section 8(b)(2) of the Act. Radio Officers' Union v. N.L. R. B. supra. The main thrust of Respondent's defense is that it was required under its contract with the Company to enforce it by insuring that Chittick was awarded the job. It relies on two provisions in the contract. The first is the provision as to seniority which provides that "Seniority shall not apply to any employee until he or she shall have been employed by a particular Employer for a period of six (6) consecutive months." Since it cannot be said that Chittick was em- ployed for six consectlive months.t this provision does not appear to aid Respondent. The second provision relied upon is that with respect to bidding. Said provision states: "Employees may not bid until they have been employed for one (1) year." Inasmuch as Chittick was employed by Respondent for various periods over a span of a little more than 6 months, the provision with respect to bidding is of no aid to Respondent. Even if the contract were construed to validly limit the opportunity to bid only to employees covered under the contract (and necessarily members of Local 227) it would appear that neither Chittick nor Parker was eligible to bid and I would be left with the conclusion that the governing factor in awarding or not awarding the job was membership in Local 227. Respondent also argues, in effect, that it was proper for it to seek the job for Chit- tick because he was entitled to it under past practice. Al- though there is testimony of industry practice, there is no probative evidence that the Employer followed a practice which would have entitled Chittick to the job. IV Itil: I IF i (l OfI 1Il It:NFAIR LABOR PRA(C-ICES UIPON (OM M :R( t The unfair labor practices of Respondent set forth in section 111. above. occurring in connection with the opera- tions of the Employer, described in section 1. above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V tIHt REMEDY It having been found that Respondent has engaged in unfair labor practices, it will be recommended that it be ordered to cease and desist therefrom and take certain af- firmative action deemed necessary to effectuate the poli- cies of the Act. It has been found hereinabove that the Respondent caused the Employer. named as party in interest herein, to i As stited hereinbolb e. (bhittick did not work for the t mploer during the entltc moiitli orf I chrtl ar 660 BAKERY SALESMEN'S LOCAL UNION 227 deny Clare D. Parker a job as a permanent long-haul driver (which commenced on April 1, 1977), because he was not a member of Respondent at the time, in violation of Section 8(b)(2) of the Act. Accordingly, it will be recommended that Respondent be ordered to request of said Employer that Parker immediately be given said job with attendant seniority and other rights and privileges retroactive to April 1, 1977. It will be further recommended that Respon- dent make Parker whole for any loss he mav have sus- tained by not being awarded said job from April 1, 1977. up to the time said request is received by the Employer, together with interest thereon to be computed in the man- ner prescribed in F. W Woolworth Comparen. 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).2 In his brief the General Counsel contends that it would be appropriate to order the Employer to comply with Re- spondent's request. Unfortunately, none of the cases cited by General Counsel appears to afford a precedent for such an order. However, it is apparent that, should the Em- ployer fail to comply with the request, the unfair labor practice will not be wholly remedied. for Parker will have been, and will continue to be, denied the benefits of the job which Respondent unlawfully caused to be denied him. The only alternative to such an order upon the Employer would be to order Respondent to continue to make Parker whole for any loss sustained by him until the Employer complies with Respondent's request. I am not satisfied that this would be equitable because, by denying said request, the Employer could force Respondent to reimburse Parker for his loss for an indefinite period of time extending, per- haps, for years. Since the Employer was named as a parts in interest, an appearance was entered on its behalf. through its representative at the hearing the Employer was apprised of the facts placed in the record, and in siew of the broad provisions of Section 10(c) of the Act, I am of the opinion that it would be appropriate in this case to order the Employer to comply with the above-prescribed request. Although such an order would require the Em- ployer to take affirmative action, such action would cause it no monetary loss and would, in no way, prejudice it. It is noted that, had it not yielded to Respondent's unlawful insistence that Parker not be given the job.03 the need to make Parker whole would not have arisen, because, as the record discloses, Parker would have been given the job. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONC LUSIONS OF LAW. 1. American Bakeries (Langendorf Division) is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(h)( 1)(A) of the Act by : See. generally,. Ios Plumh inr .Hcal,tne ( , 138 NiRB 716 (1962) The complaint does not alleg e that hc Elmploser, h, s. e doing, swlIlled Sec, 8(a(3l) and II) of Ihe Act, since Ihere ias no charce filied a;.lnmr Ihe Employer. its representative telling each of two employees that he caused the Employer not to give the job of long-haul driver commencing on April 1, 1977, to Parker because he was not, at the time, a member of Respondent. 4. Respondent violated Section 8(b)(2) of the Act by causing the Employer to deny Parker the job of long-haul driver commencing on April 1, 1977, because he was not, at the time, a member of Respondent. Uipon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDER 14 The Respondent, Bakery Salesmen's Local Union 227, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Seat- tle, Washington, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Telling employees of American Bakeries (Langen- dorf Division) that it caused one of its members to be given a job, instead of a nonmember, because of the latter's lack of membership status. (b) Causing the aforesaid Employer to prefer one of its members for a job instead of a nonmember because of the latter's lack of membership status. (c) In any other manner interfering with, restraining, or coercing employees of American Bakeries (Langendorf Di- vision), in the exercise of rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Request American Bakeries (Langendorf Division) that it immediately give Clare D. Parker the job of long- haul driver as of April 1, 1977, with attendant seniority and other rights and privileges. (b) Make said Parker whole for any loss he may have suffered by' its causing said Employer not to give him said job as of April I, 1977, in the manner set forth in the sec- tion hereinabove titled "The Remedy." (c) Post in its business offices and meeting hall copies of the attached notice marked "Appendix." Is Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by an official represen- tative of Respondent, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to its members are custom- arily posted. Reasonable steps shall be taken by the Re- '4 In the exent no exceptions are filed as provided by Sec. 102.46 of the Rules lnd Regula.tions of the National Labor Relations Board, the findings. conclusions. and recommended Order herein shall, as provided in Sec 102.48 of the Rules anid Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed wais.ed for all purposes ~ In the event that this Order is enforced by a Judgment of a United State 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 of the t nited States Court of Appeals Enforcing an Order of the Ntlonnal I.abor Relations Board " 661 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Mail to the Regional Director for Region 19 signed copies of the aforesaid notice attached hereto for posting by American Bakeries (Langendorf Division), if it so wishes, at its premises in Seattle, Washington, in places where notices to employees are customarily posted. (e) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps Respondent had taken to comply herewith. American Bakeries (Langendorf Division) is hereby or- dered to comply immediately with the above-ordered re- quest from the above-mentioned Union. 662