Teamsters Local 122

National Labor Relations Board - Board Decisions

Dec 16, 1968

173 N.L.R.B. 1283 (N.L.R.B. 1968)

TEAMSTERS LOCAL 122
Teamsters Local Union No. 122 , International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America (August A.
Busch & Co . of Mass., Inc.) and Luigi Scotti, and
Americo Piracini . Case 1-CB-1395 (1-2)
December 16, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On October 11, 1968, Trial Examiner Bernard J.
Seff issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices in
violation of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision (as
corrected by Errata dated October 15, 1968, and
October 17, 1968.) Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief and the General Counsel filed a brief
in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions' and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner (as corrected by
Errata dated October 15 and 17, 1968), as herein
modified, and orders that the Respondent, its
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's Recom-
mended Order, as so modified:
1. Delete paragraph 2(a) and substitute the follow-
ing therefor:
(a) Make Luigi Scotti and Americo Piracini whole
in the manner set forth in the section of the Trial
i Respondent excepts primarily to the credibility resolutions of the
Trial Examiner . It is the Board 's established policy not to overrule a
Trial Examiner 's resolutions of credibility unless the clear prepon-
1283
Examiner's Decision entitled "The Remedy" and
notify August A. Busch & Co. of Mass., Inc., that it
has no objection to the reinstatement of Luigi Scotts
and Americo Piracim nor to restoration of all their
rights and privileges, and furnish the said employees
with a copy of such notification.
2. Insert as paragraph 2(b) the following and
reletter the subsequent paragraphs accordingly-
(b) Notify the above-named employees, if pre-
sently serving in the Armed Forces of the United
States, of their right to full reinstatement, upon
application, in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
3. Delete the word, "and," at the end of the
fourth indented paragraph of the Notice attached to
the Trial Examiner's Decision (as corrected by Errata
dated October 15, 1968) and add the following:
nor to restoration of all their rights and privileges,
and
4. Add as the sixth and last indented paragraph of
said Notice the following:
WE WILL notify the above-named employees, if
presently serving in the Armed Forces of the
United States, of their right to full reinstatement,
upon application, in accordance with the Selective
Service Act, and the Universal Military Training
and Service Act, as amended, after discharge from
the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Trial Examiner- The case was heard
before the duly designated trial examiner in Boston, Massa-
chusetts, on August 29, 1968, upon allegations in a complaint
issued on August 9, 1968, based upon charges filed on June
21, 1968, that the Respondent violated Section 8(b)(1)(A) and
8(b)(2) of the Act. The complaint alleges in substance that
pursuant to the Union's request the Company discriminatorily
discharged Luigi Scotti and Americo Piracini because of their
failure to become members of the Local Union and pay the
dues and initiation fees as required by the provision of the
Union's collective-bargaining agreement with the Company
The Respondent in its answer admits certain allegations of the
complaint, but denies the commission of any unfair labor
practices.
Upon the entire record in the case, including my observa-
tion of the witnesses and their demeanor while testifying, and
a consideration of the briefs filed by counsel for the General
Counsel and the Respondent, respectively, I make the follow-
mg
derance of all the relevant evidence convinces us that they are incorrect.
Such a conclusion is not warranted here. Standard Dry Wall Products,
91 NLRB 544 , 545, enfd 188 F 2d 362 (C A. 3).
173 NLRB No 194
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Company, a Massachusetts corporation, maintained a
principal office and place of business in the City of Cambridge,
Massachusetts, where it is engaged in the wholesale sale and
distribution of malt beverages The Company purchases large
quantities of malt beverages which are transported in inter-
state commerce and receives directly in Massachusetts from
points outside the State malt beverages having an annual value
exceeding $50,000 The Company admits, and I find that at all
times material herein it has been an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II THE LABOR ORGANIZATION INVOLVED
The Union admits, and I find, that at all times material
herein it has been a labor organization within the meaning of
Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A The Sequence of Events
Scotty and Piracinr were employed by the Carbone Com-
pany until the company ceased operating in Boston. During
the 24-year period of their employment with Carbone, Scotty
and Piracini were paid-up members in good standing of
Teamster Local 25, a sister local of the Respondent Union
They applied for and received employment at the Busch
Company on April 1, 1968. Busch has a collective-bargaining
agreement with Respondent Local 122 which contains a
union-security clause making it obligatory for all new
employees to join the Union after completing 30 days of
employment. Forty-nine days after the commencement of
employment both Scotti and Piracinr were discharged by the
Company upon the written request of the Respondent because
neither of them had paid or tendered initiation fees or dues to
Local 122. The charging parties testified that no representative
of Local 122 had ever asked them to pay union dues or
initiation fees Further, both testified that they understood
there was no obligation to pay dues until they had worked 60
days out of the past 90 and thus had "made the list" or earned
seniority status under the contract. In that event Local 122
would notify Local 25 and a transfer would be made to Local
122. Thereafter the monthly dues owed to Local 122 would be
paid to the union as the result of the dues deduction
authorizations and the checkoff provision of the agreement
between the Company and the Respondent The charging
parties testified that they kept making regular monthly dues
payments to Local 25 and were awaiting their transfer to Local
122.
Respondent's Business Agent, Gilman, the president of the
Local, O'Connor and the Trustee, Bateman, all admitted in
their testimony that no officer or agent of the Respondent
ever directly or indirectly approached Scotty or Piracini to
request the payment of dues or initiation fees to Local 122
On four occasions, starting with the first day that Scotti
and Piracini were employed, April 1, 1968, Business Agent
Gilman telephoned Plant Manager Gordon to ask that these
two employees be laid off. Gordon refused to lay them off
because they were good employees and had many years of
experience. Finally, on June 7, 1968, Gilman called Gordon,
requested that Scotty and Piracini be laid off and said there
would be trouble if Gordon did not lay them off. On that same
day Union representative Bateman told Gordon that Gilman
had instructed all three Union representatives at the plant not
to accept any money in dues or initiation fees from Scotti and
Piracini even if they offered to pay.
Gilman notified the Company that there would be a 5-day
work holiday as a memorial to Robert F. Kennedy. The
employees refused to work from June 10 to June 17, 1968. It
is significant that on cross-examination Gilman admitted his
union did not call a work holiday in the plants of other
employers under contract to Local 122 as a memorial to
Senator Kennedy
The conclusion is inescapable that Business Agent Gilman
was determined to secure the discharge of Scotty and Piracini
and went so far to accomplish this purpose as to call men out
on strike in violation of the no-strike provision in the contract.
The Company finally agreed to discharge these men if the
Union would write a certified letter requesting this action.
Such a letter was sent and upon its receipt, June 18, 1968,
Scotti and Piracini were discharged and on the same day the
employees returned to work.
B. The Union's Practices Relative
to New Members
The Union's representatives testified that new employees
were expected to assume the initiative to seek out the
appropriate union official and proffer dues and/or initiation
fees to the Union.
C. Findings and Conclusions
1. Contentions of the parties
The General Counsel rests squarely upon the fundamental
principle that it is the duty of the union to request employees
to pay their dues. He strengthens the argument in this case by
pointing out that the charging parties continued to pay their
dues to Local 25 while waiting for the passage of 60 days of
employment at which time they understood that their
membership in Local 25 would be transferred to the Respond-
ent Local.
The Respondent starts with the simple fact that there was
in effect a contract requiring membership in Local 122 thirty
days after the commencement of employment. Neither Scotti
nor Piracinr applied for membership or tendered their dues
within the grace period. Therefore, the argument continues, it
was the Respondent's right, guaranteed expressly by the
Statute, to, request their discharge From all of which the
Respondent insists there can be no unfair labor practice
finding against it.
I find no merit to the contentions of the Respondent.
While Gilman denied that the purpose of the work stoppage
was to bring economic pressure on the Company to discharge
Scotti and Piracini the facts in the record add up to a pattern
of activity designed to accomplish the discharge of these
employees. Four efforts made by Gilman plus lus threat to
Gordon that there would be trouble for the Company unless
Scotty and Piracini were discharged form a convincing pattern
TEAMSTERS LOCAL 122
of discrimination and coercion directed against these individ-
uals The fact that Local 122 did not declare any work
holidays in memorial for Senator Kennedy in any other plant
under contract to this union make this explanation of the
work stoppage incredible This is further indicated by the fact
that the stoppage took place only 3 days after Gilman made a
threat of trouble to Gordon.
2. The Union's duty to notify
Scotty and Piracini
The Board has held that "when a union requires a new
employee to perfect membership under a lawful union-security
agreement, it has a duty to notify the employees, at some
point, as to what his `membership' obligations are," and that
"to permit a union to lawfully 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."'
Based on the undisputed facts of record and the law as set
forth supra, I find that the Respondent violated Section
8(b)(2) of the Act
In addition I find that the threatened reprisal against the
Company plus the work stoppage were violative of Section
8(b)(1)(A) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section I, above,
occurring in connection with its operations described in section
III, 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 its free flow
On the basis of the foregoing findings, and upon the entire
record in the case, I make the following.
CONCLUSIONS OF LAW
1 The Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3 By causing the Company to discriminate against Scotti
and Piracrnr, the Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(b)(2) of the
Act
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 8(b)(1)(A) and 8(b)(2)
of the Act.
i Philadelphia Sheraton Corporation, 136 NLRB 888, 896, enfd.
320 F.2d 254 (C A 3). Accord Building Construction, Highway Pavers,
167 NLRB No. 5, Local 98D, International Union of Operating
Engineers, 156 NLRB 545 Granite City Steel Company, 169 NLRB No.
144
2 In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order " shall be substituted for the
words "the Recommended Order of a Trial Examiner" in the notice. In
THE REMEDY
1285
Having found that the Union engaged in unfair labor
practices, I shall recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate the
policies of the Act.
It having been found that the Union is responsible for the
discrimination suffered by Scotti and Piracini, it will be
recommended that it make them whole for any loss of pay
they may have suffered by reason of the discrimination against
them, by payment to them a sum of money equal to that
which they would have earned as wages from the date of the
discrimination against them to the date of their reinstatement,
less interim earnings, and in a manner consistent with the
Board policies as set out in F W Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case, I
recommend that Respondent Union, Teamsters Local Union
No. 122, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (August A. Busch &
Co. of Mass., Inc.), its officers, agents, and representatives,
shall
1. Cease and desist from-
(a) Causing or attempting to cause August A. Busch & Co
of Mass., Inc., to discriminate against Luigi Scotti and Americo
Piracinr or any other of its employees, except to the extent
permitted by the proviso under Section 8(a)(3) of the Act, as
amended by the Labor-Management Reporting and Disclosure
Act of 1959.
(b) In any like or related manner restraining or coercing
employees in August A Busch & Co of Mass., Inc., in the
exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which will effec-
tuate the policies of the Act.
(a) Make Luigi Scotti and Americo Piracini whole in the
manner set forth in the section entitled "The Remedy" above
and notify August A Busch & Company that it has no
objection to the reinstatement of Luigi Scotts and Amenco
Plracini and furnish the said employees with a copy of such
notification.
(b) Post at its offices, copies of the attached notice marked
"Appendix "2 Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly signed by a
representative of Respondent Union, shall be posted by it
immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily
displayed. Reasonable steps shall be taken by the Respondent
Union to insure that said notices are not altered, defaced, or
covered by any other material. These notices shall be posted
by Teamsters Local Union No 122, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen- and Helpers of
America, at places where notices to its members are custom-
anly posted.
the further event that the Board 's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order "
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Furnish said Regional Director for Region 1, signed
copies of the aforesaid notice for posting by August A. Busch
& Co., if they are willing, at places where they customarily
post notices to employees.
(d) Notify the Regional Director of Region 1, in writing,
within 20 days from the date of the receipt of this Decision,
what steps Respondent has taken to comply herewith'
APPENDIX
NOTICE TO ALL MEMBERS of Teamsters Local Union No 122,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify you that
WE WILL NOT cause or attempt to cause August A
Busch & Co. of Mass., Inc. to discharge or otherwise
discriminate against its employees with respect to their
union membership, except to the extent committed by the
proviso to Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT in any like or related manner restrain or
coerce employees of August A. Busch & Co. of Mass., Inc.
3 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said Regional
Director , in writing , within 10 days from the date of this Order, what
steps Respondent Union has taken to comply herewith "
in the exercise of the rights guaranteed in Section 7 of the
Act
WE WILL make whole Luigi Scotts and Americo Piracim
for loss of pay suffered as a result of the discrimination
against them.
WE have no objection to the reinstatement of Luigi
Scotty and Americo Piracini and
WE WILL furnish Luigi Scotts and Americo Piracmi with
a copy of the notification set forth in paragraph 2(a) of the
Recommended Order.
Dated
TEAMSTERS LOCAL UNION No 122
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS
OF AMERICA
(Labor Organization)
By
(Representative) (Title)
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.
-If members have any question concerning this notice or
compliance with its provisions, they may communicate directly
with the Board's Regional Office, 20th Floor, John F. Kennedy
Building, Cambridge and New Sudbury Streets, Boston,
Massachusetts 02203, Telephone 223-3300.