Local 3036 N. Y. Taxi Drivers Union

National Labor Relations Board - Board Decisions

Jun 22, 1973

204 N.L.R.B. 427 (N.L.R.B. 1973)

LOCAL 3036 N.Y. TAXI DRIVERS UNION 427
Local 3036, New York City Taxi Drivers Union, AFL-
CIO (En Operating Corp.) and Ainsworth de Cam-
bre. Case 2-CB-5164
June 22, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
the Act.
The Respondent filed a timely answer denying that it had
engaged in the unfair labor practices alleged.
The case came on for trial on October 26, January 11, 16,
and 17, 1972, at New York, New York. Each party I was
afforded a full opportunity to be heard, to call, examine,
and cross-examine witnesses, to argue orally on the record,
to submit proposed findings of fact and conclusions, and to
file briefs. All briefs have been carefully considered.'
FINDINGS OF FACT,3 CONCLUSIONS, AND REASONS THEREFOR
On March 27, 1973, Administrative Law Judge Lo-
well Goerlich issued the attached Decision in this pro-
ceeding. Thereafter, counsel for the General Counsel
filed exceptions and a supporting brief and Respon-
dent filed an answering brief.
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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Local 3036, New York City
Taxi Driver Union, AFL-CIO, New York, New York,
its officers, agents, and representatives , shall take the
action set forth in the said recommended Order.
I In view of the Administrative Law Judge's ultimate disposition herein, to
which no exceptions were filed by Respondent , it is unnecessary to, and we
do not, pass upon his finding that there was an oral union -security contract
in effect during the critical period.
DECISION
STATEMENT OF CASE
LOWELL GOERLICH, Administrative Law Judge: The charge
in this proceeding was filed by Ainsworth de Cambre on
June 5, 1972, and served by registered mail on the Respon-
dent, Local 3036, New York City Taxi Drivers Union,
AFL-CIO, on or about the same date . A complaint and
notice of hearing was issued August 1, 1972. The complaint
charged that the Respondent had caused the discharge of
Ainsworth de Cambre, an employee of En Operating Corp.,
on May 30, 1972, because of nonpayment of union dues in
violation of Section 8(b)(1)(A) and (2) of the National La-
bor Relations Act, as amended, hereinafter referred to as
I JURISDICTION
Local 3036, New York City Taxi Drivers Union, AFL-
CIO, herein referred to sometimes as the Union, is a labor
organization representing approximately 30,000 taxi drivers
in the city of New York, New York. In 1967 the Union
entered into a labor agreement with the Metropolitan Taxi-
cab Board of Trade, Inc., an association of around 75 fleet
taxicab garages operating taxis in New York City. En Oper-
ating Corp., where Ainsworth de Cambre was employed as
a taxi driver, was a member of this association. En Operat-
ing Corp. employed about 500 persons. Its operating reve-
nues during the past year amounted to approximately $3
million . During the same period it purchased from outside
the State of New York automobiles, tires, and parts. The
dollar value of the automobiles purchased was "somewhere
in the neighborhood of $450,000." En Operating Corp. is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II THE UNFAIR LABOR PRACTICES
A. Relevant Facts
First: Ainsworth de Cambre, an employee of En Operat-
ing Corp., had been a member in good standing of the
Union. In October 1971 he ceased paying dues to the Union
"because [the Union] had sufficient time to produce a con-
tract." ° According to the answer filed by the Union de
Cambre remained a member in good standing until "about
January, 1972."
On May 30, 1972, Ray McCarty, a union vice president,'
and Teddy Smith, its treasurer, appeared at the En Operat-
ing Corp. garage for the purpose of checking dues delin-
quencies . The dues check was carried out by the dispatcher
who referred any delinquents to Smith and McCarty. De
Cambre was referred . McCarty informed de Cambre that he
owed $28 in dues. De Cambre asked, "What about our
contract?" McCarty responded, "Mr. de Cambre, you owe
us $28 about union dues . What about it?" De Cambre again
1 On motion En Operating Corp was allowed to intervene in the proceed-
inp as a party
Counsel for the General Counsel and the Respondent filed excellently
prepared and helpful briefs3 pa e
facts found herein are based on the record as a whole and the
observations of the witnesses
° At the time the Union was negotiating for a new contract.
S Vice President McCarty was assigned to service employees working at En
Operating Corp
204 NLRB No. 86
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inquired, "What about our contract?" McCarty again re-
sponded, "Are you going to pay $28 for union dues?" The
exchange of like words continued until de Cambre finally
said, "I am not going to pay any more dues until we have
a contract." 6 McCarty replied, "You can't work here any-
more." I McCarty walked to the dispatcher and told him not
to send de Cambre "out anymore." 8
On leaving de Cambre, McCarty contacted Gerald Nar-
en, secretary-treasurer of En Operating Corp. McCarty in-
formed him that de Cambre had not paid his dues and that
under the union-security clause Naren "could not send him
to work unless he was a paid-up member." Thereafter Nar-
en phoned de Cambre and told him that "he had better pay
his dues otherwise [he] could not put him to work." De
Cambre responded that there was no agreement and that he
would not pay his dues.' Naren relied, "but you are getting
all the benefits of the contract." He added that he could
not send de Cambre "out any longer because the Union told
him not to." Naren "left word that unless [de Cambre]
brought in a paid-up dues card, he could not go to work." 11
On Friday morning de Cambre appeared for work. The
dispatcher told him that the Union said he could not work;
however, on de Cambre's insistence he was given a taxi. The
next day when de Cambre returned for work the dispatcher
said to him, "de Cambre, I can't give you a car. I can't send
you out. The Union said not to send you out."
On the following Monday morning, June 5, 1972, de
Cambre filed the charge in this proceeding.
Second: On November 17, 1970, the contract between the
Union and the Metropolitan Taxicab Board of Trade, Inc.,
was terminated in accordance with its terms by appropriate
notices from the Union.12 Thereafter the parties continued
negotiations for a new contract. A strike occurred between
December 5 and December 20, 1970. The strike ended ap-
parently with the agreement that certain benefits be effected
on the institution of a rate increase for taxicab owners by
the New York City Council. On March 2, 1971, a rate in-
6 During the conversation McCarty did not clarify whether there was a
contract in existence or not, he didn ' t give de Cambre a "straight" answer
7 McCarty's version of the incident differed from that of de Cambre De
Cambre is credited The absence of Smith as a witness for the Union is noted
8 During the conversation de Cambre said, "What about my dimes" You
have over $500 in dimes for me" De Cambre 's remark referred to a fare
increase granted by the New York City Council raising the first drop of the
meter from 45 cents to 60 cents effective March 2, 1970 The first 10 cents
of the increased fare was set aside for employee benefits and was not figured
in the employees ' commissions
9 In June and September 1971 McCarty had told de Cambre that "[t]hey
don't have a contract " Whether this remark referred to a new agreement or
not, it was , nevertheless , subject to the interpretation that no contract was
in effect There is no doubt that de Cambre, in good faith, believed that no
union-security agreement was in effect and that McCarty did nothing to
dissel such belief
Naren testified that he told de Cambre "You are working under all the
benefits of the contract, you have an obligation, and besides, if the Union
tells me that you are delinquent in dues, I have an agreement with them that
the men pay their dues You are putting me in a very untenable position I
would not be able to put you back to work "
11 Naren claimed that En Operating Corp had entered into a verbal agree-
ment with the Union which among other things provided for a union-security
clause, "that we could not dispatch men unless they were paid up dues
members " The agreement had not been posted.
12
A letter from Donald F Menagh, Respondent's attorney, dated Septem-
ber 8, 1970, advised the Federal Mediation and Conciliation Service, inter
afia, that the contract "expires on November 16, 1970"
crease was made effective and certain employee benefits
were instituted. On the same date the employers unilaterally
reduced the commission for new drivers from 49 percent to
42 percent. Apparently, because of the disagreement over
this item the employee benefits put in effect on March 2,
1971, were never incorporated in an executed written agree-
ment and the parties continued to negotiate. During the
period of negotiations the principal bone of contention be-
tween the parties was the dispute over the commissions.
Ultimately a written contract was executed on December
27, 1972, and the commission dispute as well as certain
other matters were submitted to binding arbitration. During
the interim period the union and the employers operated
under an oral agreement in which were incorporated the
provisions of the 1967 agreement as modified by the addi-
tional benefits granted on March 2, 1971. Among other
things during this period the parties processed and arbitrat-
ed grievances in accordance with the 1967 contract terms
and enforced the union-security requirements of the con-
tract. Union dues were collected by union representatives in
the same manner as was done prior to November 17, 1970,
and employees who were delinquent in dues were subjected
to the union-security requirements. Apparently during this
period de Cambre was the only employee who was dis-
charged for the nonpayment of dues.13 While there was
evidence that employees had been orally notified of the
contract's oral continuation, including the union-security
clause, there is no credible evidence that de Cambre was so
notified or knew of the alleged binding effect of the union-
security clause at the time of his separation from employ-
ment.' Nevertheless, as was confirmed by Gerald Naren,
secretary-treasurer of the En Operating Corp., a union-se-
curity agreement was in effect at the time of de Cambre's
discharge, i.e.: "That we would see that the men paid dues
otherwise we would not dispatch them, we would not permit
them to go to work." Thus, it is found that from at least
March 2, 1971, and thereafter the union-security clause con-
tained in the 1967 agreement was orally in effect between
the En Operating Corp. and the Union and, unless other-
wise exempted, de Cambre was subject to its terms.15
In September 1972 after a phone call from McCarty, de
Cambre returned to work.16
B. Conclusions and Reasons Therefor
While "a union-security agreement which is otherwise
valid is not necessarily unlawful in its maintenance or per-
formance merely because its terms are not in writing," the
Union has imposed on it the "requirement of `fair dealing'
owed employees under union-security agreements" which
13 Charles Bono, an acting vice president of the Union, testified, "There
was no cases that i could remember that anybody had been discharged
because of nonpayment of dues"
14 Naren testified that he discharged de Cambre
15 Leo Lazrus , a union shop chairman and a negotiator , called by the
General Counsel , testified , "We were working at that period [ between No-
vember and March 1971 ] under the terms of the contract from 1967 to 1970,
and the new agreement went into effect March 2, 1971 As far as I know
it was oral"
16 The record does not disclose whether de Cambre resigned from the
Union or whether he was expelled for the nonpayment of dues Apparently
he was continued as a non-dues-paying member
LOCAL 3036 N.Y. TAXI DRIVERS UNION 429
"includes the duty to inform the employee of his rights and
obligations [respecting such agreements ] so that the employ-
ee may take all necessary steps to protect his job ." Pacific
Iron and Metal Co. and Teamsters Local 117, 175 NLRB 604.
For this reason parties to such oral agreements "must there-
fore satisfy a stringent burden of proof in establishing the
existence and precise terms and conditions of the agreement
and in further establishing that affected employees have been
fully and unmistakably notified thereof." [ Emphasis supplied.]
Pacific Iron and Metal Co. and Teamsters Local 117, supra
While there is sufficient evidence in this proceeding to es-
tablish that an oral union -security agreement bound the
Union and En Operating Corp., the record is absent of any
credible evidence that de Cambre was "fully and unmistak-
ably notified" of the existence of such agreement . Indeed,
when de Cambre sought confirmation of an agreement from
McCarty, McCarty failed to explain to de Cambre the actu-
al contractual status. He left de Cambre with the idea that
there was no contract , the idea expressed by de Cambre to
Naren when he refused to pay his union dues . Without an
explanation , which it was McCarty's duty to give de Cam-
bre, McCarty nevertheless arbitrarily , despotically, and
recklessly caused the termination of de Cambre 's employ-
ment . De Cambre was denied his right to be informed of the
source of McCarty 's high-handed ukase . McCarty 's lapse in
this respect suggests either his uncertainty as to whether a
union-security clause was in effect or his stubborn insist-
ence that a member cotton to his authoritative pleasure.
Under any interpretation of McCarty 's handling of the inci-
dent , the conclusion cannot be escaped that McCarty's con-
duct did not meet the standards of "fair dealing"; he clearly
ignored the fiduciary duty cast on him as a representative
of the Union , its members, and the employees who were
represented by the Union . In the case of Philadelphia Shera-
ton Corporation, 136 NLRB 888, 896 , enfd . 320 F.2d 254
(C.A. 10, 1963 ), the Board said , " to permit a union to lawful-
ly request the discharge of an employee for failure to meet
his dues-paying obligations , where the provisions relating to
such obligations are not disclosed to the employee, would
be grossly inequitable and contrary to the spirit of the Act."
Accordingly , it is found that , by the misconduct of Vice
President McCarty, the Respondent Union restrained and
coerced employees in the exercise of their rights guaranteed
in Section 7 of the Act and thereby the Respondent violated
Section 8(b)(I)(A) of the Act.
A purpose of the Act is "to protect the rights of
individual employees in their relations with labor orga-
nizations whose activities affect commerce." (See dec-
laration of policy. ) The right of employees "to bargain
collectively through representatives of their own choos-
ing," guaranteed under Section 7, becomes an empty
right if the bargaining agent fails or refuses to fulfill the
obligations imposed upon it by the Act and treats an
employee it is bound to represent unfairly. The statuto-
ry protection afforded unions against "free riders" was
not meant to allow a union to be more zealous in the
collection of dues than the preservation of the
employee 's job. It is the responsibility of an exclusive
bargaining representative to "act as a genuine repre-
sentative ." See Miranda Fuel Company, Inc, [140
NLRB 181], at 184 . "The bargaining representative,
whoever it may be, is responsible to, and owes complete
loyalty to, the interests of all whom it represents." Ford
Motor Company v. Huffman, 345 U.S. 330, 338. [Associ-
ated Transport, Inc, 156 NLRB 335, 349, enfd. 401 F.2d
509 (C.A. 2). See also International Association of
Bridge, Structural and Reinforced Iron Workers Union,
Local 378, AFL-CIO, 192 NLRB No. 148.]
The Respondent also violated Section 8(b)(2) of the Act.
Associated Transport, Inc., supra, Associated Transport, Inc.,
169 NLRB 1143."
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of the Act.
2. En Operating Corp. is engaged in commerce within the
meaning of the Act.
3. The issues raised in this proceeding come within the
jurisdiction set forth in the Act and it will effectuate the
purposes of the Act for jurisdiction to be exercised herein.
4. By causing the discharge of Ainsworth de Cambre, an
employee of En Operating Corp., for dues delinquency on
May 30, 1972, the Respondent has restrained and coerced
employees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act and has thereby engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) and (2)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
It having been found that the Union is responsible for the
discrimination suffered by Ainsworth de Cambre and
caused his discriminatory discharge on May 30, 1972, it is
recommended that the Respondent make de Cambre whole
17 The General Counsel urges that section 4, article IV, union-security,
renders the union-security clause in the 1970 contract (on which the Respon-
dent relies) "unlawful on its face" Section 4 provides
Each driver, on the occasion of his submitting his hack license prepara-
tory to being assigned a taxicab for the day , or at the time of assignment
to a taxicab for the day, shall submit his paid-up Union membership
card to the person in charge of assigning a taxicab for the day No driver
shall be assigned a taxicab or shall leave the garage with a taxicab
without first having shown his paid-up Union membership card in ac-
cordance with the provisions of this Section, unless a driver shows a
paid-up Union membership card in a particular month in which case
said driver does not have to show it again for that month
However, section 2, article IV, provides that new employees shall be allowed
the statutory 30-day grace period before "membership in the Union" is
required When the two sections are read together it is clear that the parties
did not intend that the statutory grace period allowed in section 2 should be
nullified by Section 4 Any other interpretation would mean that the parties
were engaging in either subterfuge or a useless gesture The more reasonable
interpretation is that the parties intended that the new employees be allowed
the statutory grace period notwithstanding section 4 and that the parties did
not intend , by executing section 4, to commit an unlawful act Such interpre-
tation is further supported by the fact that no evidence indicates that the
union-security clause was unlawfully applied
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for any loss of earnings, tips, or other benefits which he may
have suffered by reason of the discrimination against him
by payment to him of a sum of money equal to the amount
he would have normally earned as wages, including tips and
the value of any other benefits, from the date of the discri-
mination until his reinstatement, less his net earnings during
this period. The loss of earnings shall be computed in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289, with interest on the backpay due in accordance with
Board policy set out in Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the basis of the foregoing findings of fact, conclu-
sions of law and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, it is hereby recom-
mended that the following Order be issued."
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 of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
ORDER
The Respondent, Local 3036, New York City Taxi Driv-
ers Union, AFL-CIO, New York, New York, its officers,
agents, and representatives, shall:
1. Cease and desist from causing or attempting to cause
En Operating Corp. to discharge Ainsworth de Cambre in
violation of Section 8(b)(I)(A) and (2) of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the purposes of the Act:
(a) Notify En Operating Corp. in writing with a copy to
Ainsworth de Cambre that it is withdrawing its objections
to En Operating Corp.'s employment of de Cambre and
does not oppose de Cambre's reinstatement or restoration
of his full seniority as it existed on May 30, 1972, the date
of his discharge.
(b) Make whole Ainsworth de Cambre for any loss of
pay, tips, or other benefits suffered as the result of its discri-
mination against him in the manner set forth in the section
above entitled "Recommended Remedy."
(c) Post at its business office in New York, New York,
copies of the attached notice marked "Appendix." 19 Copies
of said notice, on forms provided by the Regional Director
for Region 2, after being duly signed by the Union's repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(d) Forward signed copies of the Appendix to the Re-
gional Director for Region 2 for posting by En Operating
Corp. at its place of business.
(e) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps the Respondent
has taken to comply herewith
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations of the Act other than
those found in this Decision.
19 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and order , and all objections thereto shall be deemed
waived for all purposes
19 In the event that the Board's Order is enforced by a Judgment of a
The National Labor Relations Board, after a trial in which
all parties were permitted to introduce evidence, found that
our vice president, Ray J. McCarty, in respect to the at-
tempted collection of dues from Ainsworth de Cambre, an
employee of En Operating Corp., did not deal fairly with de
Cambre and did not in his treatment of de Cambre fulfill
the fiduciary duty required by law of a union representative
and that by such misconduct the Union violated Section
8(b)(1)(A) and (2) of the National Labor Relations Act, as
amended.
WE WILL notify En Operating Corp., in writing, with
a copy to Ainsworth de Cambre, that we are withdraw-
ing our objections to En Operating Corp.'s employ-
ment of de Cambre and do not oppose de Cambre's
reinstatement or restoration of his full seniority as it
existed on May 30, 1972, the date of his discharge.
WE WILL make whole Ainsworth de Cambre for any
loss of pay, tips, or other benefits suffered as a result
of Vice President McCarty's misconduct, above de-
scribed.
WE WILL NOT cause or attempt to cause En Operating
Corp. to discharge Ainsworth de Cambre in violation
of Section 8(b)(1)(A) or (2) of the Act.
LOCAL 3036, NEW YORK CITY
TAXI DRIVERS UNION, AFL-CIO
(Union)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 36th
Floor, Federal Building, 26 Federal Plaza, New York, New
York 10007, Telephone 212-264-0300.