Local 70, Teamsters

National Labor Relations Board - Board Decisions

Mar 21, 1972

195 N.L.R.B. 957 (N.L.R.B. 1972)

LOCAL 70, TEAMSTERS 957
Brotherhood of Teamsters & Auto Truck Drivers Lo-
cal No . 70, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America
(Morris Draying Company ) and James L. Richards.
Case 20-CB-2432
March 21, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS -
Respondent, a broad order should issue requiring the
Respondent to cease and desist from causing any em-
ployer to discriminate against any employee. In sup-
port of his request the General Counsel cites two recent
Board decisions' in which the Board found. that the
Respondent unlawfully caused employers to discrimi-
nate against employees because they were not union
members. In view of these recent violations by the Re-
spondent and its unlawful conduct in the present pro-
ceeding we find merit in the General Counsel's excep-
tion and shall issue the requested broad Order.
On November 3, 1971 , Trial Examiner Maurice
Alexandre issued the attached Decision in this proceed-
ing. Thereafter , the Respondent filed exceptions and a
supporting brief, and the General Counsel submitted a
statement in support of the Trial Examiner 's Decision
and limited cross-exceptions requesting certain modifi-
cation of the recommended Order.
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 Trial
Examiner 's Decision in light of the exceptions, brief,
and statements , and has decided , to affirm the Trial
Examiner 's rulings, findings, and conclusions and to
adopt his recommended Order , with the following
modifications . We agree with the Trial Examiner that
the Respondent in violation of Section 8(b)(2) and
(1)(A) of the Act caused the Company to discharge
Richards because he was not a member of the Union,
when such membership was denied him because he
failed to pay back dues to the Union for a period when
he was not working under the union-security provision
in the contract between the Company and the Union.
In his remedy , the Trial Examiner simply required that
the Union make Richards whole for any loss of pay he
may have suffered as a result of the discrimination
against him. We are of the opinion , however, that in
order fully to remedy the violation the Respondent
must be required to reimburse Richards for the back
dues, for the period from May 1967 to July 20, 1970,
exacted from him on or about September 22, 1970, as
the price for withdrawing its unlawful opposition to his
employment as an owner-driver under an equipment
lease. Accordingly , we shall order the Respondent to
reimburse Richards for the illegally exacted dues with
interest thereon at the rate of 6 percent a year from the
date of their payment until the date of their reimburse-
ment.
The General Counsel excepts to the Trial Examiner's
limiting the cease-and-desist provision of his recom-
mended Order to the dispute here before us and con-
tends that, in view of other relatively recently ad-
judicated violations of Section 8(b)(2) of the Act by the
195 NLRB No. 164
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the Respondent, Brother-
hood of Teamsters & Auto Truck Drivers Local No.
70, International Brotherhood of Teamsters, Chau-
ffeurs, Warehousemen & Helpers of America, its offic-
ers, agents, and representatives, shall:
1. Cease and desist from:
(a) Unlawfully causing or attempting to cause Mor-
ris Draying Company or any other employer to dis-
criminate against James R. Richards or any other em-
ployee.
(b) In any like or related manner unlawfully restrain-
ing or coercing employees of Morris Draying Company
or any other employer in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
(a) Notify Morris Draying Company, in writing, that
it has no objection to the continued employment of
James L. Richards, and furnish to him a copy of such
notification.
(b) Make whole James L. Richards for any loss of
pay which he may have suffered as a result of the
discrimination against him, as set forth in the section
of the Trial Examiner's Decision entitled "The
Remedy," and reimburse him as provided herein for his
union dues unlawfully exacted from him.
(c) Post at its offices in Oakland, California, and at
all other places where it customarily posts notices to its
members, copies of the attached notice marked "Ap-
pendix."2 Copies of said notice, on forms provided by
' Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, Interna-
tionalBrotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Encinal Terminals), 193 NLRB No. 53, where the Respondent
secured an employee's discharge on the ground he was not a member when
membership had been denied him on grounds other than those permitted
under the Act; Brotherhood of Teamsters & Auto Truck Drivers Local No.
70 (California Trucking Association), 188 NLRB No. 61, in which the
Respondent unlawfully refused to refer an employee to a job because he was
not a member of the Union.
I In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "POSTED BY ORDER
OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
(Cont.)
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director for Region 20, after being duly
signed by Respondent 's representative, shall be posted
by Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places . Reasonable steps shall be taken
by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Deliver to the Regional Director for Region 20
signed copies of said notice in sufficient number to be
posted by Morris Draying Company, the Employer
being willing.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Morris
Draying Company or any other employer to dis-
criminate against James L. Richards or any other
employee in violation of Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner
restrain or coerce employees of Morris Draying
Company or any other employer in the exercise of
their rights guaranteed in Section 7 of the Act.
WE WILL notify Morris Draying Company, in
writing, that we have no objection to the continued
employment of James L. Richards, and we shall
furnish the said employee with a copy of such
notification.
WE WILL make whole James L. Richards for
any loss of pay he may have suffered by reason of
the discrimination against him and return to him
his dues we forced him to pay as the price of our
not objecting to his working for Morris Draying
Company as an owner-driver.
BROTHERHOOD OF
TEAMSTERS
& AUTO TRUCK
DRIVERS LOCAL
No. 70, INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS
CHAUFFEURS,
WAREHOUSEMEN
AND HELPERS OF
AMERICA
NATIONAL LABOR RELATIONS BOARD."
Dated By
(Labor Organization)
(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, 13018 Federal Building, 450 Golden Gate Ave-
nue, Box 36047, San Francisco, California 94102, Tele-
phone 415-556-3197.
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner: ' This case was
heard in San Francisco, California , on August 3 and 4, 1971,
upon a complaint issued on April 30, 1971 ,' alleging that
Respondent had violated Section 8 (b)(2) and (1)(A) of ,the
National Labor Relations Act, as amended . In its answer,
Respondent denied commission of the unfair labor practices
alleged . The issues presented are (1 ) whether or not Respond-
ent caused Morris Draying Company (hereafter called the
Company) to discriminate against Richards, the Charging
Party, because of his failure to pay dues to Respondent for
a period during which he was not under a statutory obligation
to do so as a condition of employment, and (2) whether or not
Section 10(b) of the Act requires dismissal of the complaint.
Upon the entire record,' my observation of the witnesses,
and the briefs filed by the General Counsel and by the Re-
spondent, I make the following:
FINDINGS AND CONCLUSIONS
I JURISDICTION
The answer admits the following allegations of the com-
plaint:
At all times material herein, Morris Draying Com-
pany, herein called Morris Draying, a California corpo-
ration with a place of business in Oakland, California,
has been engaged in business as a common carrier by
motor freight.
During the past year, in the course and conduct of its
business operations, Morris Draying performed services
valued in excess of $50 ,000 for the following employers
in California:
(1) Del Monte Corporation
(2) Libby, McNeill & Libby
(3) Pacific Far East Lines
At all times material herein, Del Monte Corporation,
a New York corporation with a place of of business in
San Francisco, California , has been engaged in the pro-
cessing and wholesale distribution of canned fruit, vege-
table and fish products.
During the past year, Del Monte Corporation shipped
from its San Francisco facility goods valued in excess of
$50,000 directly to customers located outside the State
of California.
1 Based - on a charge filed on March 2, 1971, by James L. Richards. The
charge was served on the Respondent on March 3, 1971
2 The General Counsel and the Respondent have each filed motions to
correct the transcript . Both motions are unopposed and are granted.
LOCAL 70, TEAMSTERS
At all times material herein, Libby, McNeil & Libby,
a Maine corporation with a place of business in San
Mateo, California, has been engaged in the processing
and wholesale distribution of canned and frozen fruit
and vegetable products.
During the past year, Libby, McNeil & Libby shipped
from its San Mateo facility goods valued in excess of
$50,000 directly to customers located outside the State
of California.
At all times material herein, Pacific Far East Lines, a
Delaware corporation with a place of business in San
Francisco, California, has been engaged in the transpor-
tation of goods by ocean-going ships.
During the past year, Pacific Far East Lines, at its San
Francisco facility, provided services to customers
located outside the State of California valued in excess
of $50,000.
Morris Draying is, and at all times material herein has
been, an employer engaged in commerce and operations
affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
I find the facts to be as admitted and that the Company is,
and at all times material has been, an employer engaged in
commerce and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
I find that the Respondent is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
Most of the facts are not in dispute. The Company utilizes
three categories of truckdrivers: hourly paid employees; own-
er-drivers, who rent their trucks to the Company and drive
them on behalf of the Company under so-called equipment
leases which may be canceled by either party thereto; and
subhaulers who perform driving, services for the Company
pursuant to subcontract agreements with the latter.
Richards worked for the Company as an owner-driver
from September 1966 to May 1967, when he left town and
turned to farming. He was a member of Respondent at the
time, but failed to apply for a withdrawal card which would
have excused payment of dues while he was not engaged in
teamster work. He also failed to pay dues to Respondent after
the latter date and was suspended from membership. Rich-
ards did not thereafter work as a teamster until July 20, 1970,'
when he and the Company executed a new equipment lease,
and Richards was rehired as an owner-driver.' Learning that
Richards was not a member of Respondent in good standing,
Wheeler, the Company's director of safety and personnel,
suggested that he go directly to Respondent's union hall and
clear up his union status .' On the same day, Richards went
to Respondent's office, explained to Doris, the employee who
"takes care of the records," that he was delinquent in his
dues, that he had a job with the Company, and that he wished
to pay his reinstatement fee. Doris told him he could not pay
the fee, stated that he could not work until he appeared before
All dates referred to hereafter related to 1970 unless otherwise stated.
The parties stipulated that Richards was an "employee" within the
meaning of the Act during the time that he worked for the Company as an
owner-driver under their equipment lease.
Respondent and the Company were subject to a collective-bargammg
agreement which contained a union-security provision covering Respond-
ent's employees and which, the parties stipulated, was in effect at all times
material herein.
959
Respondent's executive board, and gave him a slip scheduling
his appearance before that board on August 4.
Several days after Richards was rehired, Colliver, Re-
spondent's chief shop steward at the Company, asked to see
Richards' dues book. Richards replied that he had attempted
to pay a reinstatement fee, but that Doris had refused to
accept it prior to his appearance before the executive board.
Colliver made no reply. About the same time, either Colliver
or Winings, another shop steward at the Company, told
Wheeler that Richards was not a member of Respondent.
Wheeler responded that he would look into the matter. Two
or three days later, Wheeler informed Richards of the stew-
ards' complaint, and Richards described his conversation
with Doris. About a week later, Wheeler reported what Rich-
ards had told him to Colliver and Winings.
Richards did not appear at the executive board meeting on
August 4 because the Company had sent him out of town and
he was unable to return in time. The executive board met as
scheduled and determined that Richards would be required
to pay the sum of $521.75 in order to be reinstated as a
member in good standing. This amount included $382.75 in
back dues for the period between May 1967 to July 20, 1970;
i.e., the period during which Richards was not subject to the
collective-bargaining agreement. A few days later, Richards
went to Respondent's office and was given another slip sched-
uling his appearance before the executive board for Septem-
ber 15.
During July and August, Colliver or Winings, as well as
other drivers, stated to Wheeler on numerous occasions that
they did not like to work with Richards because he was a
"non-Union man," and told him to see to it that Richards
acquired good standing in Respondent. Wheeler also had two
or three telephone conversations with Sarmento, Respond-
ent's business agent, regarding Richards' union status. Dur-
ing their last conversation, Sarmento told Wheeler that he
was still receiving pressure from the drivers to get Richards
into the Union, stated that Richards was scheduled to appear
before the executive board, and told Wheeler that it would be
best to assign Richards to out-of-town work not covered by
Respondent's contract with the Company. Wheeler replied
that he would transfer Richards to another jurisdiction. The
record contains conflicting evidence as to whether the said
conversation took place in August or early in September.
On the evening of September 3, Richards was informed by
a company dispatcher that Wheeler wanted to see him the
next morning. When Richards reported on September 4 as
instructed, Wheeler told him that Sarmento had stated that
Richards could not work in Alameda County until after he
"got straightened out before the Executive Board." Wheeler
further stated that he planned to cancel their equipment lease,
that Richards could haul fruit out of Davis, California, if he
so desired, and he would have a better chance for work at
Davis than at Oakland.' Richards informed Wheeler that he
planned to go to Salt Lake City over the Labor Day weekend
to pick up his children. Richards left and did not come back
to California: until September 8. On September 10, when
Richards returned to the Company's premises, Wheeler can-
celed their lease, stating that it was best to do so until Rich-
ards straightened out his union status. Thereafter, between
that date and September 18, Richards received one or two
assignments to haul fruit as a subhauler. Although the dis-
patch was out of the Davis terminal, Richards received the
assignment by telephone, and it was not necessary for him to
go to Davis.
6 Wheeler testified that during the harvest season from mid-August to the
end of October, the Company can normally find work for anyone who wants
to go up to the Sacramento Valley.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 15, Richards appeared before one Botello or
Botelho, Respondent 's vice president , and Soto , a member of
the executive board. Botelho told Richards to come back the
next day, pay his reinstatement fee, and he could go back to
work. When Richards attempted to do so on September 16,
Lorraine, the head of Respondent's business office, informed
him that the executive board had determined that he was also
required to pay his back dues. At Richards' request, she
attempted to reach Botelho but without success. On Septem-
ber 17, Richards asked Sarmento what he should do about
obtaining reinstatement . Sarmento suggested that he pay
$521.27 so that he could return to work for the Company,
and then request a hardship hearing before the executive
board.' On the same day, Richards paid $521.75 to Respond-
ent. He received a receipt therefor on September 18, showed
it to Wheeler, and on the same day entered into a new equip-
ment lease with the Company.
Thereafter, Richards appeared before the executive board
on two occasions to obtain relief from the full payment, but
his request was denied each time.
B. Concluding Findings
Section 8(b)(2) of the Act, among other things, prohibits
a union from causing an employer to discriminate against an
employee who has been denied membership in the union,
except where there is a valid union-security agreement and
the employee has failed to tender his union dues and initiation
fee. The exception, however, does not include back dues for
a period when there was no statutory obligation to maintain
membership in the union as a condition of employment. In-
ternational Union of Operating Engineers, Local No. 139
(Camsy Construction Co., Inc.), 172 NLRB No. 12, and cases
cited therein. Since Richards was not an employee covered by
Respondent 's union-security agreement between May 1967
and July 20, 1970, when he was reemployed by the Company,
he was under no obligation to pay back dues for that period
as a condition of retaining his employment with the Com-
pany.
Despite Respondent's contention to the contrary, I find
that Richards was discharged by the Company on September
10, since the cancellation of his equipment lease on that date
terminated his status as an employee . It is also clear, and I
find, that Richards was discharged because of his failure to
pay back dues which he was not required to pay in order to
retain his employee status. There is thus no doubt that the
Company discriminated against Richards for a proscribed
reason . The question is whether Respondent should be held
responsible for the discrimination. Respondent contends that
it should not for several reasons, discussed immediately be-
low.
1. Respondent contends that it exerted no pressure on the
Company relating to Richards and that such pressure came
from Richards' fellow drivers. In support of this contention,
Respondent cites testimony by Wheeler that Richards' lease
was terminated "due to the pressure from the drivers." The
record establishes, however, that the Company canceled its
lease with Richards because of pressure by Sarmento. During
his conversation with Wheeler prior to cancellation of the
lease, Sarmento stated that he was still getting pressure from
the drivers because of Richards' delinquent union status and
requested Wheeler to assign Richards to out-of-town work
not covered by Respondent's contract with the Company.
Wheeler replied that he would transfer Richards "to another
jurisdiction," told Richards on September 4 that he planned
' Based on Wheeler's testimony which Sarmento did not expressly con-
tradict and which I credit.
to, cancel the lease, and the lease was canceled on September
10. On September 17, Sarmento told Richards that if he paid
his dues arrears, he could go back to work for the Company.
On September 18, Richards paid the arrears and Wheeler
immediately executed a new equipment lease. It is apparent,
and I find, that Respondent caused the cancellation of the
lease and Richards' discharge.
2. Respondent argues that Richards was not prejudiced by
the termination of the lease, that it did nothing to affect the
security of Richards' employment, that Sarmento merely
sought a readjustment of Richards' working locations so as
to remove him from locations where he might be subject to
continuing pressure regarding his union status, that Respond-
ent thus sought to protect rather than impair his job security,
and that the record fails to establish that the change in Rich-
ards' status from an owner-driver to a subhauler resulted in
less remuneration to him or required him to move his place
of residence.
It is true that Respondent did not cause a complete sever-
ance of the Company's relationship with Richards, since he
continued to perform services for the Company as a sub-
hauler after September 10. But the fact remains that Re-
spondent caused his discharge as an employee. And if it did
so for a proscribed reason, such conduct violated Section
8(b)(2) and (1)(A) of the Act, whether or not Richards was
prejudiced. Indeed, even the promotion of an employee,
where improperly motivated, constitutes unlawful discrimi-
nation . Coca-Cola Bottling Co. Indianapolis, 141 NLRB
1030.8
Moreover, the record contains evidence of prejudice.
Wheeler testified that subhaulers cannot perform certain
types of jobs which are available to owner-drivers and that
owner-drivers receive preference in assignments over sub-
haulers. In addition , Sarmento testified that the local men
preferred local work over out-of-town work which would
require them to remain away from home for one or more
nights.
3. Respondent contends that if it did cause Richards' dis-
charge, it acted lawfully because its conduct was motivated
solely by the fact that Richards had not become a member of
Respondent within the 30-day period required by the union-
security agreement and not by his failure to pay the back
dues. According to Respondent, it did not raise the matter of
Richards' back dues until after the Company had canceled its
equipment lease with Richards. The facts do not support this
contention. The record shows, among other things, that Re-
spondent's executive board determined at its August 4 meet-
ing that Richards was required to pay all his back dues before
he could be reinstated as a member of Respondent in good
standing. Respondent cannot divorce its invocation of the
union-security agreement against' Richards from that deter-
mination by its executive board. I find that in causing Rich-
ards' discharge Respondent was motivated by his failure to
pay the back dues.
4. Respondent points out that under its procedure, back
dues may be forgiven in whole or in part where the delinquent
member can establish hardship. Respondent then argues that,
although it may at times predicate reinstatement of a delin-
quent member on the payment of an amount measured by his
back dues, it is not concerned with the'collection of such dues
qua dues, but merely with the equities of the member's situa-
tion. The motive alleged by Respondent for insisting on Rich-
ards' payment of the back dues is irrelevant. Respondent
determined that Richards would be reinstated to good stand-
ing only if he paid his back dues, and then caused the dis-
8 Although enforcement was denied (333 F.2d 181 (C.A. 7)), the court
did not reject the above principle of law.
LOCAL 70, TEAMSTERS
crimination against him because of his failure to pay such
dues . I find , in agreement with the General Counsel , that such
conduct violated Section 8 (b)(2) and (1)(A).
5. Respondent contends that the complaint is barred by the
6-month proviso to Section 10(b) of the Act, which provides
that no complaint shall issue based on any unfair labor prac-
tice occurring more than 6 months prior to the filing of the
charge "and the service of a copy" on the person charged.
The charge herein was filed and served on March 2 and 3,
1971, respectively . Thus, it must be shown that Respondent's
violation occurred on or after September 3. Respondent takes
the position that the evidence is inconclusive and insufficient
to support a finding that Sarmento 's last conversation with
Wheeler took place after August . However , it is unnecessary
to decide the exact date of the conversation , since Respond-
ent's violation was consummated on September 10, a date
well within the 6 -month riod . Accordingly , the complaint
is not time-barred . Chauurs, Teamsters and Helpers, Local
No. 200 (State Sand and Gravel, Inc.), 155 NLRB 273.
CONCLUSIONS OF LAW
1. By causing the Company to discriminate against Rich-
ards , as found herein , Respondent engaged in unfair labor
practices in violation of Section 8(b)(2) and (1)(A) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
THE REMEDY
I recommend that Respondent cease and desist from its
unfair labor practices and take certain affirmative action
necessary to remedy and remove the effects of the violation
and to effectuate the policies of the Act; i.e., notify the Com-
pany that it has no objection to the continued employment of
Richards and make him whole for any loss of pay he may
have suffered by payment to him of a sum of money equal to
what he normally would have earned during the period of the
discrimination against him caused by Respondent , less net
earnings during said period, together with interest thereon at
the rate of 6 percent per annum . Isis Plumbing & Heating Co.,
138 NLRB 716.
961
[Recommended Order omitted from publication.]
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD