Teamsters Local 287 (Emery Air)

National Labor Relations Board - Board Decisions

Aug 20, 1991

304 N.L.R.B. 119 (N.L.R.B. 1991)

119
304 NLRB No. 20
TEAMSTERS LOCAL 287 (EMERY AIR)
1 November 1, 1987, the Teamsters International Union was readmitted to
the AFL–CIO. Accordingly, the caption has been amended to reflect that
change.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
We note that in par. 4 of his analysis, the judge inadvertently cited NLRB
v. Iron Workers Local 433, 598 F.2d 1154 (9th Cir. 1979). The correct cite
is NLRB v. Iron Workers Local 433, 600 F.2d 770 (9th Cir. 1979), cert. denied
445 U.S. 915 (1980).
The Respondent filed a cross-exception to the judge’s finding that Haas reg-
istered on the out-of-work list at the Respondent’s exclusive hiring hall on
March 30, 1990, 4 days before he was placed on withdrawal status. The record
indicates that Haas registered on March 20, 1990. This error would not affect
the outcome of the case.
3 In Conclusion of Law 4, the judge incorrectly described the Respondent’s
conduct in causing the employers using the exclusive hiring hall to refuse to
hire Haas as a violation of Sec. 8(b)(1)(B), rather than Sec. 8(b)(2).
4 The General Counsel filed an exception to the judge’s failure to include
a provisional remedy that in the event the Respondent continues to discrimi-
nate against David Haas and prevents him from running as a candidate in the
December 1991 election, a rerun election shall be conducted. We reject the
General Counsel’s exception as premature as it essentially seeks to remedy a
violation that has not yet occurred. The judge’s recommended Order, with the
addition of an expunction remedy, sufficiently remedies the unfair labor prac-
tices found in this case.
Teamsters Union Local No. 287, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO1
(Emery Air Freight/Airborne Express) and
David Haas. Cases 32–CB–3434 and 32–CB–
3463
August 20, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On April 24, 1991, Administrative Law Judge Jay
R. Pollack issued the attached decision. The General
Counsel filed an exception and a supporting brief, and
the Respondent filed cross-exceptions and a supporting
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions as modified3 and to adopt the recommended
Order as modified.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Team-
sters Union Local No. 287, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL–CIO, San Jose, California, its offi-
cers, agents, and representatives, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
‘‘(c) Remove from its records any reference to the
unlawful placement of David Haas on withdrawal from
union membership and notify him in writing that this
has been done and that unlawfully placing him on
withdrawal will not be used against him in any way.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT place you on withdrawal or otherwise
discipline you because you have engaged in internal
union politics.
WE WILL NOT threaten you with reprisals because
you have filed charges with the NLRB.
WE WILL NOT cause or attempt to cause any em-
ployer to refuse to hire or employ you because you en-
gaged in internal union politics.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL make whole David Haas for any loss he
may have suffered y reason of the discriminatory re-
fusal to allow him to use the hiring hall, with interest.
WE WILL on tender by David Haas of payment of
all dues owing retroactive to April 1990, offer him im-
mediate and full reinstatement to membership in Local
287, without prejudice to any rights, privileges, and
benefits to which he may have been entitled.
WE WILL remove from our records any reference to
our unlawful placement of David Haas on withdrawal
from union membership and notify him in writing that
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this has been done and that the withdrawal will not be
used against him in any way.
TEAMSTERS UNION LOCAL NO. 287,
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA,
AFL–CIO
Valerie Hardy-Mahoney, Esq., for the General Counsel.
David A. Rosenfeld, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of San Francisco, California, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
consolidated case in trial at San Jose, California, on January
23, 1991. On April 26, 1990, David Haas filed the charge
in Case 32–CB–3434 alleging that Teamsters Union Local
No. 287 (Respondent or the Union) committed certain viola-
tions of Section 8(b)(1)(A) of the National Labor Relations
Act (the Act). Haas filed an original and amended charge in
Case 32–CB–3463 on May 25 and June 26, respectively. On
May 30, 1990, the Regional Director for Region 32 of the
National Labor Relations Board issued a complaint and no-
tice of hearing against Respondent, in Case 32–CB–3434, al-
leging that the Union violated Section 8(b)(1)(A) of the Act
by refusing to let Haas register at its hiring hall and by refus-
ing to restore Haas to full membership in the Union. There-
after, on June 29, 1990, a complaint was issued in Case 32–
CB–3463 further alleging that Respondent violated Section
8(b)(1)(A) of the Act by threatening Haas with reprisals for
having filed charges with the Board. Respondent filed timely
answers to the complaints, denying all wrongdoing.
The parties have been afforded full opportunity to appear,
to introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses, and having
considered the posthearing briefs of the parties, I make the
the following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
The complaints allege jurisdiction based on the operations
of Airborne Freight Corporation d/b/a Airborne Express and
Emery Air Freight Corporation d/b/a Emery Worldwide. The
complaint alleges that both Airborne Express and Emery
Worldwide are engaged in the business of air freight for-
warding. Respondent denies these allegations and contends
that these employers are carriers subject to the Railway
Labor Act.
Under Section 2(2) of the Act, the term employer does not
include any person subject to the Railway Labor Act. In de-
termining whether to assert jurisdiction, the Board will defer
to decisions of the National Mediation Board. See, e.g., El-
liot Flying Service, 260 NLRB 485 (1982); DHL Corp., 260
NLRB 17 (1982); Beckett Aviation Corp., 254 NLRB 88
(1981). The National Mediation Board has determined that
air freight forwarders are not subject to the Railway Labor
Act. See Teamsters Local 295 (Emery Air Freight Corp.),
255 NLRB 1091 (1981).
In the Teamsters Local 295 case, the Board asserted juris-
diction over Emery, finding that the company used charter
airlines and regularly scheduled commercial flights but did
not itself operate any aircraft or employ any pilots, flight en-
gineers, or airline maintenance personnel. The Board con-
cluded that there was insufficient connection between the
company’s employees and the transportation function to war-
rant a finding that the company was covered by the Railway
Labor Act. Accordingly, the Board found that Emery was an
employer engaged in commerce within the meaning of the
Act. Thereafter, the Board has asserted jurisdiction over
Emery in two other cases cited by the General Counsel. See
Emery Air Freight., 267 NLRB 1014 (1983); and Teamsters
Local 705 (Emery Air Freight), 278 NLRB 1303 (1986) (ju-
risdiction was admitted and, therefore, not an issue in either
of these cases).
In the instant case, there is no evidence concerning the op-
erations of Airborne. With respect to Emery, there is only
evidence that Emery employees pick up and deliver packages
at the Oakland and San Jose International Airports. There is
no evidence concerning the operation of the aircraft. Based
on the prior cases asserting jurisdiction over Emery, I draw
the inference that Emery still does not operate any aircraft
or employ any pilots, flight engineers, or airline maintenance
personnel. I find that the General Counsel has met the bur-
den of proof with respect to jurisdiction. The burden shifts
to Respondent to show that the operations of Emery have
changed or that Emery is an air carrier. Respondent has not
offered any evidence to overcome the presumption that the
Board will continue to assert jurisdiction over the operations
of Emery. Accordingly, I find that Emery is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
Since Respondent operates an exclusive hiring hall used by
Emery and other employers, it will effectuate the purposes
of the Act to assert jurisdiction.
Respondent admits and I find that at all times material Re-
spondent has been a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
David Haas became a member of Respondent Union in
1971. Haas served as a business agent from 1982 through
1988. In December 1988, Haas ran for the position of sec-
retary-treasurer, the chief executive officer of the Union. He
won the election and was sworn in as secretary-treasurer in
January 1989. However, the election was challenged by
Mario Gullo, the former secretary-treasurer and Haas’ oppo-
nent. The election was set aside and a rerun election was
held in September 1989. Gullo won the rerun election and
Haas appealed the results of the election. However, Gullo’s
victory was upheld by the Department of Labor in January
1990.
The instant case involves actions taken against Haas by
Gullo and Ralph Rodriguez-Berriz, Respondent’s president,
in the spring of 1990. General Counsel contends that Re-
spondent, through Gullo and Rodriguez-Berriz, violated Sec-
tion 8(b)(1)(A) of the Act by: issuing Haas a withdrawal card
121TEAMSTERS LOCAL 287 (EMERY AIR)
1 See Teamsters Local 287 (Consolidated Freightways), 300 NLRB 539
(1990), in which the Board found that the Haas political faction had discrimi-
nated against a Gullo supporter in the operation of the hiring hall.
2 The complaint alleges that Respondent did not permit Haas to register for
work from April 2 until May 16, 1990.
and refusing to accept his dues payment; telling Haas that his
protest of such action could not be heard and that he could
not attend union meetings because he had filed charges with
the Board; and failing to allow Haas to sign up at Respond-
ent’s hiring hall.
The enmity between Haas and Gullo is admitted by Re-
spondent. During 1989, Haas filed internal union charges
against Gullo and Gullo filed internal charges against Haas.
There have also been lawsuits and countersuits. The animos-
ity between Haas on one side and Gullo and Rodriguez-
Berriz on the other, permeated the courtroom. None of these
three could apparently control their dislike for their opponent
even during a formal hearing. There is no need to go into
the charges and counter charges that have passed between the
two sides.1 It is clear that because of intraunion politics,
Haas hates Gullo and Rodriguez-Berriz and the two union of-
ficials feel likewise about him.
After Haas was defeated in the September 1989 rerun elec-
tion, he signed up on the out-of-work list at Respondent’s
exclusive hiring hall. Haas also paid his union dues through
April 1990. In late November 1989, Haas was unable to
work because of an injury and received disability payments.
On March 30, 1990, Haas again registered on the out-of-
work list for casual employment. Haas reported to the hiring
hall on a daily basis but was not dispatched to any employer.
However, this lack of work was not due to any wrongdoing
by the Union. Rather, Haas would report to the hiring hall
after the jobs were dispatched. The dispatcher would remove
Haas’ name as a ‘‘no show.’’ The Union had no practice or
procedure for disciplining employees who did not show up
for a job call. The employees simply were removed from the
out-of-work list. Haas would sign up again for work after he
had been removed as a no show.
On April 5, Haas went to the hiring hall to register for
work but was not permitted to do so by the dispatcher. The
dispatcher, Paul Cormier, told Haas that Haas had been given
a withdrawal card by Gullo and that Gullo instructed
Cormier not to permit Haas to register for work. Haas wrote
Gullo a letter protesting the issuance of the withdrawal card
and asking that the withdrawal be rescinded. Haas further de-
manded that Gullo permit him to sign the out-of-work lists.
On April 11, Haas attempted to pay his union dues for
May. The office worker would not accept the dues.
Rodriguez-Berriz then spoke to Haas and told Haas that he
was on withdrawal and therefore could not pay dues. Haas
said the withdrawal had been issued in error and that he was
entitled to pay his dues and work out of the hiring hall.
Rodriguez-Berriz answered that Haas had to have a Class I
driver’s license and a department of transportation (DOT)
medical card to register for work. Haas said those require-
ments applied to new members and not himself. However,
Haas showed Rodriguez-Berriz both the required documents.
Rodriguez-Berriz then asked to make copies of the docu-
ments. Haas refused to allow copies to be made. Rodriguez-
Berriz pleaded with Haas to allow him to make copies but
Haas steadfastly refused. Rodriguez-Berriz then threatened
that Haas could not sign up without giving him a copy of
the documents. Haas still refused to allow the Union to have
a copy of the documents. Haas was not permitted to sign the
out-of-work lists and was not permitted to pay his union
dues.
On April 13, Haas wrote Gullo stating that he had met all
requirements to be reinstated and requested that he be rein-
stated. Haas enclosed a check for 6 months’ dues and his
withdrawal card with the letter. On April 16, Gullo re-
sponded to Haas’ letter and inquired about Haas’ disability
and work record. Gullo also questioned whether Haas had a
Class I license and a DOT card. On April 18, Haas wrote
Gullo and stated that he had already shown Rodriguez-Berriz
all the necessary documentation. Haas supplied answers to
the questions concerning his disability and work record. On
May 5, Haas again attempted to pay his union dues and re-
turn the withdrawal card. The dues and card were not accept-
ed.
Haas was not allowed to sign the out-of-work list until
May 16.2 On May 13, Haas attempted to attend the Union’s
executive board meeting to argue against the involuntary
withdrawal card. Rodriguez-Berriz asked Haas if he had filed
charges with the Board. When Haas answered affirmatively,
Rodriguez-Berriz responded that Respondent was not going
to hear his case. Rodriguez-Berriz stated that the trouble with
Haas was that Haas had run off to the National Labor Rela-
tions Board without ever using his internal remedies.
Rodriguez-Berriz again stated that Haas was on withdrawal
and could not pay dues or attend meetings.
On June 11, Haas attempted to attend a general member-
ship meeting of the Union. Rodriguez-Berriz refused to allow
Haas to attend the meeting on the ground that Haas was on
withdrawal. Haas stated that the withdrawal was being con-
tested and that he had paid his dues. Rodriguez-Berriz said
the dues payment was not valid because Haas was on with-
drawal. Rodriguez-Berriz repeated that Haas had gone to the
Board before he had exhausted his internal remedies and,
therefore, could not attend the meeting.
In order to be eligible to run in the upcoming union elec-
tion set for December 1991, candidates must be members in
good standing for 24 consecutive months prior to nomina-
tion. Thus, Haas’ involuntary withdrawal from membership
prevents his nomination in the next election.
Gullo testified that he issued Haas a withdrawal card, usu-
ally reserved for out-of-work members who wish to be re-
lieved from their dues obligation, based on a conversation
with an unnamed attorney from the Union’s parent organiza-
tion. According to Gullo, some unnamed employees com-
plained that Haas was not working and only taking up space
in the hiring hall. I do not credit this testimony. Haas had
only been registered 4 days when Gullo sought to take action
against him. Haas had not taken any work from the hall and,
therefore, had not adversely affected any other employee.
Gullo testified that he was informed that since Haas was
unemployed for 6 months he could be given a withdrawal
card. According to Gullo he was only following this union
rule. However, Gullo admitted that an employee on disability
was not unemployed within the meaning of the union rule.
Further, Gullo made no investigation to determine if any
other union member was subject to the 6-month rule. The
only other time an involuntary withdrawal was given was
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In 1976, Haas was able to obtain reinstatement simply by paying dues.
also to Haas in 1975 when Haas left the State of California.3
Gullo testified that Haas could again become a member if he
went to work in the industry. However, Gullo never informed
Haas of this fact. Further, by refusing to permit Haas to use
the hiring hall, Gullo made it impossible for Haas to work
in the industry.
Rodriguez-Berriz testified that he wanted to copy Haas’
Class I license and DOT card so that he had proof that Haas
had met the requirements for registering at the hiring hall.
However, he admitted that he did not require copies of docu-
ments from other employees until sometime later when such
copies became a uniform requirement. Rodriguez-Berriz ad-
mitted that he wanted the proof in case Gullo wanted jus-
tification for allowing Haas to register. No explanation for
why Gullo would need copies from Haas, but no other em-
ployee, was given. No explanation is really necessary.
Gullo’s animus against Haas explains the action taken
against Haas and explains Rodriguez-Berriz’ desire to have
proof to show Gullo that Haas had the proper documentation.
Analysis and Conclusions
Section 8(b)(1)(A) of the Act provides that it shall be an
unfair labor practice for a labor organization ‘‘to restrain or
coerce . . . employees in the exercise of the rights guaran-
teed in Section 7 of the Act.’’ The proviso to Section
8(b)(1)(A) states that the Section ‘‘shall not impair the right
of a labor organization to prescribe its own rules with respect
to the acquisition or retention of membership therein.’’ Sec-
tion 8(b)(2) makes it an unfair labor practice for a union:
to cause or attempt to cause an employer to discrimi-
nate against an employee in violation of subsection
(a)(3) of this section or to discriminate against an em-
ployee with respect to whom membership in such orga-
nization has been denied or terminated on some ground
other than failure to tender the periodic dues and the
initiation fees uniformly required as a condition of ac-
quiring or retaining membership.
In Scofield v. NLRB, 394 U.S. 423, 430 (1969), the Su-
preme Court stated that Section 8(b)(1)(A) leaves a union
free to enforce ‘‘a properly adopted rule,’’ provided that the
rule (1) ‘‘reflects a legitimate union interest,’’ (2) ‘‘impairs
no policy Congress has imbedded in the labor laws,’’ and (3)
‘‘is reasonably enforced against union members who are free
to leave the union and escape the rule.’’
In Carpenters Local 22 (Graziano Construction Co.), 195
NLRB 1 (1972), the Board held that the provision that a
union’s discipline ‘‘impair no policy Congress has imbedded
in the labor laws’’ included not only the NLRA butall Fed-
eral policies. Thus the Board held union discipline cannot
interfere with the rights of a union member guaranteed by
the Labor-Management Reporting and Disclosure Act, ‘‘to
participate fully and freely in the internal affairs of his own
union.’’
It is well settled that a union cannot discriminate against
a hiring hall applicant because of his internal union activities.
Laborers Local 383 (Arizona Building Chapter, AGC), 266
NLRB 934, 937 (1983). It is also well settled that a union
may not deviate from its regular hiring hall procedures in a
manner which denies employment opportunities to applicants
without inherently encouraging union membership and thus
violating the Act. NLRB v. Iron Workers Local 433, 598 F.2d
1154 (9th Cir. 1979); Electrical Workers Local 592 (United
Engineers & Construction Co.), 223 NLRB 899, 901 (1976).
In Longshoremen (ILA) Local 1408 (Jacksonville Maritime
Assn.) v. NLRB, 705 F.2d 1549 (11th Cir. 1983), the court
enforced the Board’s order finding that Local 1408 violated
Section 8(b)(1)(A) and (2) by refusing to refer a member
until he apologized publicly to the union’s president whom
the member had verbally attacked. The court rejected the
union’s defense of customary internal policy to protect the
hiring hall. The court held that the keystone of violations in-
volving hiring halls ‘‘rests on the principle that the union
cannot use the employer as a surrogate in enforcing its inter-
nal affairs.’’ Id at 1552. The court found that the natural
foreseeable consequences of the union’s decision was to
compel the employee to accept the authority of union offi-
cials. Thus, the court held that the union’s requirement of a
public apology did not fall within 8(b)(2)’s exception for en-
forcing payment of union dues.
Applying the above principles to the facts of this case, it
is clear that Respondent through Gullo unlawfully removed
Haas from the out-of-work list at its exclusive hiring hall.
Haas had been properly registered on the out-of-work list but
had not yet received a dispatch, when Gullo ordered that his
name be removed. Gullo’s explanation for his actions has
been discredited. Haas had not taken any jobs from any other
employee and there was no reason for any employee to com-
plain. Gullo could not remember the name of any employee
who complained nor could he cite any reason why an em-
ployee would complain. In any event, Haas showed the
union’s president the required documents. However, Haas
was still not permitted to register.
Contemporaneously, with his removal from the out-of-
work list, Haas was given an involuntary withdrawal from
the Union. Gullo’s reason for the withdrawal does not ring
true. Gullo did not even mention the name of the union offi-
cial who recommended that he could take such action. More
important, Gullo and the Union did not attempt to enforce
the rule against any other employee. Under the Union’s own
definition, Haas would not have fit under the rule because
he had been on disability and, therefore, was not unem-
ployed.
I do not believe that Gullo enforced the union rule in good
faith. Rather, I believe he sought to punish his political op-
ponent. Gullo did not even attempt to investigate whether
Haas or any other employee fit under the rule. Even after
Gullo learned that Haas had been disabled and therefore not
unemployed, Gullo continued with the involuntary with-
drawal. Similarly, even after learning that Haas had the two
required documents, Gullo continued to prohibit him from
using the hiring hall until May 16.
Under the circumstances of this case, I draw the inference
that Gullo sought to discipline Haas and place him on with-
drawal because of the hostility generated by the internal
union politics. Due to the past election and ensuing lawsuits,
Gullo sought retaliation against Haas and sought to prohibit
Haas from entering the next election as a candidate for of-
fice. Haas’ activities in opposing Gullo and running for of-
fice are protected from union discipline under Scofield.
123TEAMSTERS LOCAL 287 (EMERY AIR)
4 All motions inconsistent with this recommended Order are hereby denied.
If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
5 If 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
I reject Respondent’s defense that it was merely enforcing
its rules. No other employee was required to present copies
of his license or department of transportation card. Respond-
ent made no investigation as to whether any other member
was out of work for 6 months. Gullo’s testimony on these
points is not credible and his demeanor on the stand did not
aid his case. Respondent had knowledge of Haas’ internal
union activities and strong animus against him for such ac-
tivities. I draw the inference that the action taken against
Haas was motivated by Gullo’s animus towards him. I fur-
ther find that the failure of Respondent to give a credible
reason for its discipline of Haas supports an inference that
the motive is an unlawful one which the Respondent wishes
to conceal. See Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466, 470 (9th Cir. 1966); Abbey’s Transportation Serv-
ices, 284 NLRB 698 (1987); First National Bank of Pueblo,
240 NLRB 184 (1979).
Further, I find that the statements of Rodriguez-Berriz to
Haas that the trouble with Haas was that he had filed charges
with the Board without exhausting his internal union rem-
edies independently violated Section 8(b)(1)(A) of the Act.
I find no merit to the argument that Rodriguez-Berriz was
simply stating a deferral policy. Rather, I find that under the
circumstances of this case, Rodriguez-Berriz’ remarks im-
plied that there would be no favorable action on Haas’ at-
tempts to obtain union membership because Haas had filed
charges with the Board.
CONCLUSIONS OF LAW
1. Emery Air Freight is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent, Teamsters Union Local No. 287, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(b)(1)(A) of the Act by
placing David Haas on withdrawal, removing him from its
out-of-work list from April 5 until May 16, 1990, and threat-
ening him with reprisals because Haas had engaged in inter-
nal union politics and had filed charges with the Board.
4. Respondent violated Section 8(b)(1)(B) by removing
Haas’ name from its out-of-work list at its exclusive hiring
hall and thereby causing the employers using the exclusive
hall to refuse to hire Haas.
5. Respondent’s acts and conduct above constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I recommend that Respondent be ordered to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. Respondent
should be ordered to accept Haas’ payment of dues and rein-
state him to full membership, retroactive to April 1990. Fur-
ther, Respondent should be ordered to make Haas whole for
any loss of earnings he may have suffered by reason of the
refusal to allow him to use the exclusive hiring hall from
April 5 to May 16, 1990. As Haas was seeking work only
as a casual employee, any job he would have been referred
to has ended. Therefore, reinstatement is not applicable.
Backpay shall be computed on a quarterly basis, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest computed in accordance with New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Teamsters Union Local No. 287, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO, San Jose, Califor-
nia, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Placing members on withdrawal or otherwise disciplin-
ing members because they have engaged in internal union
politics.
(b) Threatening employees with reprisals because they
have filed charges with the NLRB.
(c) Causing or attempting to cause any employer to refuse
to hire or employ employees because those employees en-
gaged in internal union politics.
(d) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole David Haas for any loss he may have suf-
fered by reason of the discriminatory refusal to allow him to
use the hiring hall, in the manner set forth in the remedy sec-
tion of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all hiring hall
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(c) On tender by David Haas of payment of all dues owing
retroactive to April 1990, offer him immediate and full rein-
statement to membership in Local 287, without prejudice to
any rights, privileges, and benefits to which he may have
been entitled as of the date of his unlawful involuntary with-
drawal of membership.
(d) Post at its hiring hall, meeting rooms, and offices in
San Jose, California, copies of the attached notice marked
‘‘Appendix.’’5 Copies of the notice, on forms provided by
the Regional Director for Region 32, after being signed by
a responsible representative of Respondent, shall be posted
for a period of 60 consecutive days in conspicuous places in-
cluding all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to en-
sure that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.