Local 456, Teamsters

National Labor Relations Board - Board Decisions

Aug 22, 1974

212 N.L.R.B. 968 (N.L.R.B. 1974)

968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 456, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
and J. R. Stevenson Corp . Case 2-CB-5412
driving duties. In addition, article XIX provided, in
relevant part:
August 22, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS KENNEDY
AND PENELLO
On January 17, 1974, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
to the Administrative Law Judge's Decision with sup-
porting arguments; the Charging Party filed cross-
exceptions and an answering 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, arguments,
and briefs,' and has decided to affirm the rulings,
findings, and conclusions 2 of the Administrative Law
Judge to the extent consistent herewith, and to adopt
his recommended Order, as modified herein.
For the reasons discussed below, we find that Re-
spondent violated Section 8(b)(6) of the Act by forc-
ing Stevenson, since on or about July 1, 1973, to hire
Arpad Korchma and to pay him moneys for services
which Stevenson did not need and which Korchma
did not perform or offer/ in good faith, to perform.
I. BACKGROUND
Stevenson is a general contractor engaged in the
construction of a $21 million county courthouse com-
plex in White Plains, New York. Work on the project
began in March 1970 with an expected completion
date of December 31, 1973. On May 21, 1970, Ste-
venson signed a contract with Respondent which, by
its terms, expired on June 30, 1970. Thereafter, the
parties entered into another agreement extending
from July 1, 1970, to June 30, 1973. Each of these
contracts contained a recognition clause covering em-
ployees engaged in a variety of intrasite and intersite
1 Respondent 's request for oral argument is hereby denied as, in our view,
the record , exceptions, arguments, and briefs adequately present the posi-
tions of the parties.
2 In Conclusion of Law 3, the Administrative Law Judge inadvertently
referred to "Respondent" although such reference was clearly intended to be
to Stevenson. We hereby correct the error by substituting "Stevenson" for
"Respondent"
2. On outside construction job sites, the em-
ployer shall provide a heated trailer with tele-
phone for employees covered hereby.
3. A shop steward shall be assigned to each
supply yard and each road-and building-con-
struction job site at all times, and shall be fur-
nished with a vehicle for means of
transportation. If an employer has more than one
such job site in operation, a shop steward may
cover all of such job sites.
Pursuant to its first collective-bargaining agree-
ment with Respondent, Stevenson hired Victor Toran,
a member of Respondent, in May 1970 and, under the
contract's terms, paid him about $20,000 per year and
furnished him a heated trailer with telephone. Ac-
cording to credited testimony, Toran spent his work-
ing time in the heated trailer or, when outside,
checking incoming trucks to see if the drivers carried
Teamsters cards. Otherwise, he performed virtually
no services for Stevenson. Once during his employ-
ment, he was asked by Stevenson to drive a truck. He
refused to do so, and suggested that if Stevenson
needed a driver, it should hire another teamster to
perform that service. The matter was not pursued fur-
ther. Toran continued in Stevenson's employ until
January 1972 when he retired. He was then replaced
by Arpad Korchma who assumed his duties as shop
steward, and enjoyed the same privileges of a heated
trailer and telephone as had Toran. Stevenson pre-
sented evidence indicating that, in addition to the
salary it paid Korchma, it paid approximately $100
per month for Korchma's use of the trailer telephone.
In April 1973,3 Respondent notified Stevenson of
its desire to negotiate a new agreement to succeed the
one expiring on June 30. By letter, dated June 27,
Stevenson replied that it did not employ teamsters in
its operation and that it therefore had no need to enter
into another agreement. On June 29, Stevenson noti-
fied Arpad Korchma, the Teamsters shop steward
then in its employ, that he would be terminated on
June 30.
On July 3, Korchma and others appeared at the
jobsite with picket signs. Respondent picketed Ste-
venson on July 3, 5, 6, and 9. On July 9, the same date
on which it filed the instant charge, Stevenson agreed
to sign a new agreement with Respondent and, upon
signing such agreement,4 Stevenson rehired Korchma
3 Unless otherwise indicated , all dates are in 1973.
° This contract was identical to the earlier agreements except as to econom-
212 NLRB No. 145
LOCAL 456, TEAMSTERS 969
on July 10. Since July 10, Korchma has performed no
services for Stevenson which could be termed relevant
or productive. Instead, he has devoted his time to
checking drivers entering the jobsite to see if they
carried Teamsters cards. Pursuant to the new agree-
ment, which expires June 30, 1976, Korchma's earn-
ings are at least $65 per day, with 50-cent-an-hour
increases effective July 1, 1974, and July 1, 1975. In
addition, Korchma continues to have use of the heat-
ed trailer and telephone.
II THE ADMINISTRATIVE LAW JUDGE'S DECISION
The Administrative Law Judge found that Respon-
dent violated Section 8(b)(6) of the Act by forcing
Stevenson to hire , and pay moneys to, Arpad Korch-
ma, one of its members , at a time when Respondent
knew that Stevenson had no need or use for
Korchma's services . The Administrative Law Judge
further found that Korchma did not perform , or make
a bona fide offer to perform , relevant services for
Stevenson and recommended that Respondent be or-
dered to reimburse Stevenson for all wages paid to
Korchma for services not performed and not to be
performed by Korchma for the period not barred by
Section 10(b) of the Act.
III. CONTENTIONS OF THE PARTIES
Respondent contends that the Administrative Law
Judge's findings are not supported by the record, that
his reliance on Metallic Lathers I is misplaced, and
that, in any event, the charge herein is barred by
Section 10(b) of the Act.
General Counsel, on the other hand, contends that
because Korchma performed no services for Ste-
venson and was paid approximately $20,000 for con-
ducting union business at Stevenson's premises, his
asserted offer to perform work was, at best, for token
or nominal services and was therefore not a bona fide
offer of the competent performance of relevant serv-
ices, but was rather the substantial equivalent of
standing by. General Counsel further contends, how-
ever, that Stevenson, by keeping Korchma on its pay-
roll without complaint until July 1, 1973, is estopped
from claiming damages prior to that date.
Charging Party contends that the Administrative
Law Judge's proposed remedy should be expanded to
is terms. In addition , the following language was added to art. XIX, sec. 3:
The shop steward may be assigned to the duties of safety coordinator
at the discretion of the Employer and under the direction of the Employ-
er
5 Metallic Lathers Union of New York and Vicinity, Local 46 of the Wood,
Wire and Metal Lathers International Union, AFL-CIO (Expanded Metal
Engineering Co.), 207 NLRB No. 111 (1973).
include 411 reasonable expenditures directly incurred
in its employment of Korchma including, but not lim-
ited to, fringe benefit payments and telephone expen-
ses.
IV. DISCUSSION
In concluding that Respondent violated Section
8(b)(6) of the Act by forcing and requiring Stevenson
to hire, and pay moneys to, Arpad Korchma for serv-
ices not performed and not to be performed by him,
the Administrative Law Judge relied exclusively upon
his finding, apparently based on credibility resolu-
tions, that Victor Toran had earlier refused to perform
any driving duties when requested by Stevenson to do
so, suggesting that Stevenson hire another teamster to
do the driving. Since Toran's refusal occurred outside
the limitations period imposed by Section 10(b) of the
Act, we may not rely upon it as the sole basis for
finding that Korchma, too, refused to, perform rele-
vant driving work within the 10(b) period .6 With re-
spect to Korchma's employment history prior to his
discharge on June 30 and subsequent rehire on July
10, the evidence is in considerable conflict as to what
work, if any, he performed or offered to perform, and
the Administrative Law Judge failed to resolve this
conflict by making specific credibility resolutions.
The Administrative Law Judge's failure in this regard,
however, is not fatal because Korchma, too, was ini-
tially hired, in January 1972, pursuant to a valid col-
lective-bargaining agreement entered into between
Stevenson and Respondent in 1970; both events are
clearly outside the 10(b) limitations period. In these
circumstances, we may not presume that the initial
hiring of Korchma pursuant to such agreement was
other than fair and regular.
The record, however, is clear that on June 27 Ste-
venson notified Respondent that it did not need the
services of a teamster and that it therefore considered
it unnecessary to negotiate a new contract with Re-
spondent. And, upon expiration of its then current
agreement with, Respondent on June 30, Stevenson
terminated Korchma's employment. There is no alle-
gation that the discharge of Korchma violated Section
8(a)(3) of the Act. Rather, the record as a whole sup-
ports Respondent's assertion that, as of June 30, Ste-
venson had no need for Korchma's services and,
indeed, there is no evidence whatever in the record
that Korchma thereafter offered to perform or per-
formed relevant services for Stevenson.
Section 8(b)(6) of the Act forbids a labor organiza-
tion "to cause or attempt to cause an employer to pay
or deliver or agree to pay or deliver any money or
6 Local Lodge No 1424, International Association of Machinists, AFL-CIO
[Bryan Manufacturing Co] v. N.L R B, 362 U.S. 411, 416 (1960).
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other thing of value, in the nature of an exaction, for
services which are not performed or not to be per-
formed." The Supreme Court narrowly construed the
provisions of Section 8(b)(6) in American Newspaper
Publishers Association' and Gamble.'
In American Newspaper Publishers Association, the
Supreme Court was faced with the question of wheth-
er a union's demand that printers be paid for setting
bogus type for which the publishers had no use violat-
ed Section 8(b)(6). The Board had dismissed the
charge 9, and the Seventh Circuit upheld the Board's
dismissal.1° The Supreme Court affirmed the circuit
court's decision and held that although the setting of
bogus type was a "wasteful procedure," the practice
called for payment only for work which was done by
employees of publishers in the course of their employ-
ment as distinguished from payment "for services
which are not performed or not to be performed."
Because setting bogus type was a service performed it
remained for the parties to determine its worth to the
employer. The Court found it unnecessary to pass
upon the Board's contention that the union's insis-
tence on payment was "not in the nature of an exac-
tion." The Court observed that:
The Act now limits its condemnation to instances
where a labor organization or its agents exact pay
from an employer in return for services not per-
formed or not to be performed. Thus, where work
is done by an employee, with the employer's con-
sent, a labor organization's demand that the em-
ployee be compensated for time spent in doing
the disputed work does not become an unfair
labor practice. The transaction simply does not
fall within the kind of featherbedding defined in
the statute. In the absence of proof to the con-
trary, the employee's compensation reflects his
entire relationship with his employer."
The Court so concluded by examining the legislative
history behind Section 8(b)(6) and in particular Sena-
tor Taft's observation that the clause, substituted by
the Conference Committee for the extensive provi-
sions in the House Bill concerning "featherbedding,"
which became the present Section 8(b)(6), "makes it
an unlawful-labor practice for a union to accept mon-
ey for people who do not work." 12 The Court found
that Section 8(b)(6) left to collective bargaining "the
determination of what, if any, work, including bona
7 American Newspaper Publishers Association v N L R B, 345 U.S. 100
(1953).
8 N.LR B. v Gamble Enterprises, Inc, 345 U.S. 117 (1953)
986 NLRB 951 (1950)
10 193 F 2d 782 (CA. 7, 1951).
11 345 U.S. at 110.
12 Id. at 108-109.
fide `made work,' shall be included as compensable
services and what rate of compensation shall be paid
for it." 13
In Gamble the issue presented to the Court was
whether a union violated Section 8(b)(6) when it in-
sisted that a theater, which was part of an interstate
chain, employ a local orchestra to play in connection
with certain programs, although the theater did not
need or want to employ the local orchestra. The union
demanded that the local orchestra be hired to play
"overtures, intermissions and chasers." Again the
Board had dismissed the 8(b)(6) complaint 14 but the
Sixth Circuit set aside the Board's dismissal.15 The
Supreme Court reversed the judgment of the Sixth
Circuit and accepted the Board's finding that the
union sought actual employment for its members as
opposed to mere standby pay. Because the Court
agreed with the Board's treatment of the union's pro-
posals as made "in good faith contemplating the per-
formance of actual services," the Court concluded
that the union had not violated Section 8(b)(6). The
Court observed:
We are not dealing here with offers of mere "to-
ken" or nominal services. The proposals before
us were appropriately treated by the Board as
offers in good faith of substantial performances
by competent musicians. There is no reason to
think that sham can be substituted for substance
under §8(b)(6) any more than under any other
statute. Payments for "standing-by," or for the
substantial equivalent of "standing-by," are not
payments for services performed, but when an
employer receives a bona fide offer of competent
performance of relevant services, it remains for
the employer, through free and fair negotiation,
to determine whether such offer shall be accepted
and what compensation shall be paid for the
work done.16
It cannot be gainsaid that in both cases the Su-
preme Court used as a touchstone for its construction
of Section 8(b)(6) the fact that work was performed.
In both cases before the Court, work had been done
even though the employer in each case had no use for
the work. As noted above, American Newspaper Pub-
lishers Association made specific reference to "work"
done by an employee. In Gamble the Court noted
Senator Ball's comment that Section 8(b)(6) pros-
cribes payment only where no work is done.17 Even the
13 Id at Ill.
1493 NLRB 1528 (1951).
IS 196 F 2d 61 (C.A. 6, 1952)
'6 345 U.S 117, 123-124.
17 Id at fn. 5 . Of course , Sec. 8(b)(6) does not proscribe all payments made
LOCAL 456, TEAMSTERS 971
various dissenting opinions in the two cases conceded
that work had been done.18
A panel of the Board, in adopting the Decision of
an Administrative Law Judge, recently found a viola-
tion of Section 8(b)(6) in Metallic Lathers Local 46,
supra. In that case the employer, Special Sections,
although principally a distributor, was also engaged in
the manufacture of furring channels. The manufac-
turing process was performed by a unit employee rep-
resented by Teamsters Local 810. The Lathers
demanded that Special Sections hire a lather to do the
manufacturing work. Although having no need for a
lather and having communicated this fact to Lather
Local 46, Special Sections, in the face of picketing,
hired a lather who subsequently performed no lathing
duties. During the lather's tenure he worked on sever-
al jobs, some of which he characterized as demeaning.
The Administrative Law Judge found a violation of
Section 8(b)(6) because the employer did not have
"even a prospective need for the specialized services
of a lather" and Local 46's demand that the employer
hire a lather was not a bona fide offer of competent
performance of relevant services. Moreover, there was
an absence of any collective-bargaining history be-
tween Sepecial Sections and Local 46 and the work
claimed for Local 46's member infringed on the unit
work of the company-recognized bargaining agent,
Teamsters Local 810.
We believe the facts and the holdings in Gamble
and American Newspaper Publishers Association to be
distinguishable from the facts and the issue before us.
Stevenson indicated it had no use for the services of
a teamster. The uncontradicted testimony reveals that
since July 1, 1973, Korchma has not performed any
teamster duties and Stevenson has had neither a need
nor a desire for him to perform any. Respondent, well
when employees are not "working." See American Newspaper Publishers Asso-
ciation, 345 U.S. at 111 , fn. 10.
Section 8(b)(6) does not relate to union requests for, or insistence upon,
such types of payments as employees' wages during lunch, rest , waiting
or vacation periods ; payments for service on relief squads ; or payments
for reporting for duty to determine whether work is to be done Such
practices are recognized to be incidental to the employee's general em-
ployment and are given consideration in fixing the rate of pay for it
They are not in the nature of exactions of pay for something not per-
formed or not to be performed. See 93 Cong Rec. 6859.
18 Justice Clark, with whom Chief Justice Vinson joined, admitted that in
both cases work had been performed, 345 U.S 117, 126, but believed that
Sec. 8 (b)(6) proscribed contrived and patently useless job operations not to
the employer's benefit, 345 U S. 100, 115 Justice Douglas thought the work
in American Newspaper Publishers Association was unwanted and wholly
useless and in no sense a "service" to the employer and so prohibited by Sec.
8(bx6), 345 U.S. 100, 112 He did not believe, however, the work in Gamble
was useless . Justice Jackson viewed both cases as involving payment for
useless and unwanted work caused by the respective unions He considered
the practice of setting bogus type as a fair adjustment of service conditions
recognized by long and voluntary usage while the Musicians Union in Gam-
ble had "substituted for the practice specifically condemned by the statute
a new device for achieving the same result " 345 U.S. 117. 125.
knowing that these were the facts, nevertheless de-
manded that Stevenson pay for Korchma's unwanted
and unneeded daily presence when there was no con-
templation of his performing any bona fide relevant
services. As of July 1, 1973, Stevenson did not have
"even a prospective need for the specialized services"
of a teamster. Respondent's demand for a new con-
tract calling for payments for the presence of one of
its members at the jobsite when no teamster work was
being performed and where the Employer indicated it
had no need for teamster labor, coupled with a strike
to make the Employer respond to such a demand, is
an exaction within the meaning of Section 8(b)(6).
Respondent's demand falls considerably short of
being a bona fide offer of the competent performance
of relevant services. Both American Newspaper Pub-
lishers Association and Gamble make it clear that "rel-
evant services" must be contemplated for a labor
organization's demand for pay to its members to es-
cape the sanctions of Section 8(b)(6). Here all par-
ties-including Respondent knew perfectly well
that Korchma simply performed no work-made
work or otherwise for Stevenson. Although he may
have checked union cards in his capacity as shop
steward, such work was done solely as an agent of
Respondent and was for Respondent's benefit; it
surely was not even remotely related to Stevenson's
work requirements. Accordingly, we agree with the
Administrative Law Judge's determination that Re-
spondent violated Section 8(b)(6) of the Act.
Having found that Respondent violated Section
8(b)(6) of the Act as of July 1, 1973, we shall order
Respondent to reimburse Stevenson for wages paid as
of that date and thereafter. In addition, because of the
nature of Respondent's violation we find merit in
Charging Party's contention that, in order to restore
the status quo and thus provide a full remedy herein,
it should be reimbursed for all reasonable expendi-
tures directly incurred in its employment of Arpad
Korchma. We shall, however, leave to the compliance
stage of the proceeding herein the determination of
the amounts due Stevenson for these expenses. Ac-
cordingly, we shall amend the recommended Order to
reflect these changes.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as it Order the recommended Or-
der of the Administrative Law Judge as modified
below and hereby orders that Respondent, Local 456,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, New York,
New York, its officers, agents, and representatives,
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following for paragraph 2(b) of
the recommended Order:
"(b) Reimburse the J. R. Stevenson Corp., with in-
terest at 6 percent per annum, for all wages paid to,
and all reasonable expenditures directly incurred in
the employment of, Arpad Korchma for services not
performed by him for the period commencing July 1,
1973."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten, restrain, or coerce the
J. R. Stevenson Corp. where an object is to cause
or attempt to cause J. R. Stevenson Corp. to pay
or deliver or agree to pay or deliver money or
other things of value in the nature of an exaction,
for services not performed or not to be per-
formed.
WE WILL reimburse the J. R. Stevenson Corp.,
with interest at 6 percent per annum, for all wag-
es paid to, and all reasonable expenditures direct-
ly incurred in the employment of, Arpad
Korchma for services not performed by him for
the period commencing July 1, 1973.
LOCAL 456, INTERNATIONAL
BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF
AMERICA
(Labor Organization)
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 ques-
tions 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 212-264-0306.
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: Based upon
a charge filed on July 9, 1973,1 by J. R. Stevenson Corp.
herein called the Company, the General Counsel of the
National Labor Relations Board by the Regional Director
for Region 2 issued a complaint on September 28, alleging
that Local 456, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, estab-
lished a picket line around the jobsite upon which the Com-
pany was then engaged, demanding as the price for
removing the picket line that Respondent sign a contract
with the Union and employ one man. The Company capitu-
lated to this demand, signed a contract with the Union, and
put a Teamsters man on its payroll. Respondent denied the
commission of any unfair labor practices but did admit it
was a labor union within the meaning of the Act. The case
came on for heaing before me in New York on November
28 and 29.
Upon the entire record in this case and my observation
of the witnesses, I hereby make the following:
FINDINGS OF FACT
I JURISDICTION
The Company is a general contractor presently engaged
in the construction of a courthouse complex located in
White Plains, New York. During the past year it purchased
and caused to be delivered to the construction site lumber
and other goods and materials valued in excess of $1 billion
of which goods and materials valued in excess of $1 billion
were transported and delivered to the courthouse complex
in interstate commerce directly from States in the United
States other than the State of New York. The Company is
and has been at all times an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Facts Concerning the 8(b)(6) Allegations
The charging party, the J. R. Stevenson Company, had
been a member of the Building Trades Employers Associa-
tion of Westchester (hereinafter referred to as the BTEA)
for many years. BTEA has had labor agreements with num-
erous trade unions in Westchester County but had no agree-
ment with Local 456. Stevenson employed no Teamsters
members and has no use for the skills of a member of the
Teamsters Union. Despite these facts Local 456 approached
1 All dates referred to in this case took place in 1973 unless otherwise
indicated.
LOCAL 456, TEAMSTERS 973
Stevenson and demanded that it sign a contract with Local
456. Stevenson refused. Local 456 threw up a picket line
around the jobsite and succeeded in shutting down the oper-
ation.
The Company capitulated and signed a contract with
Local 456. One of the provisions of this agreement required
the Company to provide a heated trailer equipped with a
telephone and to place on its payroll a member of Local 456.
The Teamsters member, who is a shop steward, performed
no work of any kind for Stevenson but merely checked the
trucks which came on the property to see if the drivers
carried Teamsters cards.
Originally in May 1970 Stevenson hired Victor Torman
who is a Teamsters member. On one occasion Toran was
asked by Stevenson to drive a pickup truck. He refused this
assignment and suggested that if Stevenson needed a truck-
driver it should hire another teamster to perform that ser-
vice. Faced with this refusal, the Copany dropped the
matter and did not pursue it any further.
Upon Toran's retirement, he was replaced by Arpad
Korchma who assumed his duties as shop steward and en-
joyed the same privileges of a heated trailer and telephone
as had been previously been granted to his predecessor.
Korchma received approximately $20,000 a year for which
he performed no services for Stevenson.
A second contract was executed between the parties cov-
ering the period from July 1, 1970, to June 30, 1973. Respon-
dent requested some changes in this agreement. Stevenson
replied by notifying Respondent that it employed no team-
sters in its operations, refused to enter into another contract,
and terminated Korchma. Korchma picketed the jobsite.
Once again Stevenson agreed to a new collective-bargaining
agreement and rehired Korchma. Korchma performed no
useful services for the Company and again received approx-
imately $20,000 per year.
Based on the above facts, the sole issue presented was
whether Respondent violated Section 8(b)(6) of the Act by
requiring Stevenson to employ a member of its labor organi-
zation and pay this member for services which are not per-
formed or not to be performed.
It is clear from the testimony in the record that Korchma
performed no duties of any kind whatsoever during the
entire time that he was paid $20,000 a year to occupy a
heated trailer. On the single occasion when the Company
thought it might be able to find a use for the teamster
employee and they called upon him to perform the minor
job of moving some supplies from one part of the project to
another, employee Torman refused to do this work and
suggested to the Company that it hire another teamster who
would perform the duties requested of him.
The dispute in the American Newspaper case (345 U.S. 100
(1953) ) arose out of the union's insistence that certain pub-
lisher-employers, with whom it had a longstanding collec-
tive-bargaining relationship, pay their composing room
employees for engaging in the practice of setting "bogus
type." This so called "made work" had no useful value to
the employers and was characterized by the Court as, a
"wasteful procedure." Nevertheless, in finding that the
Union's insistence upon continuation of this practice did
not violate Section 8(b)(6), the Court, after reviewing the
legislative history, stated:
The substitution of the present Section 8(b)(6) for the
definition compels the conclusion that Section 8(b)(6)
means that the Court below has said it means. The Act
now limits its condemnation to instances where a labor
organization or its agents exact pay from an employer
in return for services not performed or not to be per-
formed. Thus, where work is done by an employee with
the employer's consent, a labor organization's demand
that the employee be compensated for time spent doing
the disputed work does not become an unfair labor
practice.
However, the Court went on to say:
Section 8(b)(6) leaves to collective bargaining the de-
termination of what, if any work, including bona fide
"made work," shall be included as compensable serv-
ices and what rate of compensation whall be paid for
it.
B. Conclusions Concerning the 8(b)(6) Allegations
The General Counsel called two witnesses, both of whom
were responsible for the completion of the project at various
times. These men testified that Korchma performed no use-
ful services for Stevenson throughout his total period of
employment. In sum, when Korchma checked on drivers
who came on to the project to find out if they had Teamsters
cards, he was performing work for his Union. For the per-
formance of this strictly union business the Company was
compelled to pay him $20,000 per year. On the isolated
occasion when Toran was asked to drive a pickup truck, he
refused to do this work and instead suggested that the em-
ployer employ an additional member of the Teamsters
union . What Korchma did was of no use to the Company.
It is reasonable to assume that Respondent relies on the
landmark Supreme Court decisions of American Newspaper
Publishers v. N.L.RB., 345 U.S. 100 (1953), and NLRB. v.
Gamble Enterprises, Inc., 345 U.S. 117 (1953) to support its
contention that Respondent did not violate Section 8 (b)(6).
The General Counsel in his brief states:
The most significant aspect of these cases is the conclu-
sion that in determining whether a union has sought to
perform services, the issue is not whether the work is
productive, wanted or needed by the employer. Rather,
the test as applied by the Court to date, is whether work
is being performed
However, as caveats to this general principle, the Court
carefully set forth the following standards: the offer to
work must be for services which are not merely token
or nominal, but rather, substantial and competent per-
formances of relevant services which are not the sub-
stantial equivalent of standing by, and there must be
evidence the union has made these offers in good faith.
The facts in the instant case are not analagous to the
American Newspaper or Gamble cases. Very few cases have
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
come up involving Section 8(b)(6) of the Act. In a recent
case, Metallic Lathers Union of New York and Vicinity, Local
46 (Expanded Metal Engineering Co.), 207 NLRB No. 111
(1973), pressure was applied by the establishment of a picket
line by the union to compel the employer to hire a lather.
Despite having no need for one, a fact which it communicat-
ed to the local, the employer capitulated and hired the lath-
er. In holding the local union's actions to be unlawful,
Administrative Law Judge John von Rohr distinguishes the
Supreme Court decisions in American Newspaper Publishers
and Gamble. He points out that the employer had no imme-
diate or prospective need for the services of a lather and
therefore the local union's demand did not constitute a
"bona fide" offer of the competent performance of "rele-
vant services." Moreover, the union knew that the work for
which it was demanding that its member be hired was being
performed by a member of another labor organization who
belonged to a company-recognized bargaining unit. These
facts are on all fours with the case at bar.
Finally, I find that by the above-descnbed conduct the
Respondent caused and attempted to cause Stevenson to
pay money or other things of value, in the nature of an
exaction, for services not performed in violation of Section
8(b)(6) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union set forth in sec-
tion III, above, occurring in connection with the operations
of the Employer described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices violative of Section 8(b)(6) of the Act, I shall
recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies
of the Act.
In view of the flagrant nature and extent of the unfair
labor practices committed, I shall recommend that Respon-
dent Union be required to reimburse the Stevenson Corp.
for the monentary loss suffered by it due to the unlawful
8(b)(6) conduct herein found.
CONCLUSIONS OF LAW
1. J. R. Stevenson Corp. is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Local 456, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By threatening, restraining, and coercing the J. R. Ste-
venson Corp., by virtue of the picket line established by the
Respondent Union, and threatening the Company that it
would engage in the foregoing activity unless Respondent
put on its payroll a member of the Local 456 thus causing
the Stevenson Corp. to deliver money or other things of
value, in the' nature of an exaction, for services not per-
formed in violation of Section 8(b)(6) of the Act, the Re-
spondent Union violated the National Labor Relations Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in this case, and
pursuant to Section 10(c) of the Act, I hereby make the
following recommended:
ORDER2
Respondent, Local 456, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Coercing or threatening J. R. Stevenson Corp. where
an object is to cause the Company to pay or deliver or agree
to pay or deliver money or other things of value, in the
nature of an exaction, for services not performed or not to
be performed.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Post at its offices, meeting halls, and hiring halls cop-
ies of the attached notice marked "Appendix." Copies of
said notice on forms provided by the Regional Director for
Region 2, after being duly signed by Respondent's represen-
tative, shall be posted by it immediately upon receipt there-
of, 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.
(b) Reimburse the J. R. Stevenson Corp. with interest at
6 percent per annum for all wages paid to Arpad Korchma
for services not performed by him for the period not barred
by Section 10(b) of the Act.
(c) Additional copies of the Appendix shall be signed by
the representative of the Respondent Union and forthwith
returned to the Regional Director for Region 2. These no-
tices shall be posted, J. R. Stevenson Corp. willing, at all
places where notices to its employees are customarily post-
ed.
(d) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
2 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.
3 In the event that the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
* U S. GOVERNMENT PRINTING OFFICE 1974 0 - 1577-914