Teamsters Local 328 (Blount Bros.)

National Labor Relations Board - Board Decisions

Apr 29, 1987

283 N.L.R.B. 779 (N.L.R.B. 1987)

TEAMSTERS LOCAL 328 (BLOUNT BROS.)
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers Of America, Local
Union No. 328 (Blount Brothers Corporation)
and Kenneth W. Quinnell Sr. Case 30-CB-2126
29 April 1987
ORDER DENYING MOTION
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 20 March 1985 the National Labor Relations
Board issued a Decision and Order in this proceed-
ing.'
On 18 September 1986 the Respondent filed with
the Board a motion to reconsider and ' a brief in
support of the motion. Thereafter, the General
Counsel and the Charging Party filed replies.
The Board has considered the Respondent's
motion and brief and the General Counsel's and the
Charging Party's replies and has decided to deny
the Respondent's motion to reconsider for the fol-
lowing reasons.
In the decision reported at 274 NLRB 1053, the
Board adopted the judge's findings that the Re-
spondent had violated Section 8(b)(1)(A) and (2) in
operating its hiring hall in a discriminatory manner.
The Board ordered the Respondent to make whole
the named Charging Party, Kenneth Quinnell Sr.,
as well as "all other job applicants similarly situat-
ed for any loss of earnings they may have suffered
... by reason of the discrimination practiced
against them." The Respondent, in its motion to re-
consider, requests the Board to reconsider its deci-
sion in this case and to delete from its Decision and
Order the make-whole relief for "all other job ap-
plicants similarly situated." In support of its
motion, the Respondent relies on recent Board de-
cisions in Laborers Local 426 (Building Contractors),
280 NLRB 610 (1986), and Laborers Local 158
(Contractors of Pennsylvania), 280 NLRB 1100
(1986). In their replies to the Respondent's motion,
the General Counsel and the Charging Party agree
with the Respondent that the language of the
Board's Order should be narrowed and they re-
quest that the Board grant the Respondent's
motion.
The judge in his decision in the underlying case
initially rejected the Respondent's argument that
the make-whole remedy should be limited only to
the named Charging Party. In so doing, the judge
found that the broad language of the complaint had
placed the Respondent on notice concerning an al-
legation of unlawful discrimination against the
Charging Party and other employees; that the
1 274 NLRB 1053 (1985).
779
matter had been fully and fairly litigated at the
hearing; and that the evidence showed the Re-
spondent had engaged in discrimination against the
Charging Party and other applicants for referral
because of the length of their union membership,
or because of other arbitrary -reasons not based on
objective criteria and standards, and that the Re-
spondent had failed to use objective consistent cri-
teria not based on union membership in the referral
of applicants. On these facts and findings, the judge
thus found that an order, as sought by the General
Counsel extending make-whole relief to the Charg-
ing Party and other similarly situated employees,
was appropriate in light of Board precedent, in-
cluding Plumbers Local 198 (Jacobs/Wiese), 268
NLRB 1312 (1984). He also found this case, on
these same findings and facts, distinguishable from
cases where the Board had granted a limited make-
whole remedy. See, e.g., Longshoremen ILA Local
851 (West Gulf Maritime Assn.), 194 NLRB 1027
(1972).
In Building Contractors, the Board, relying on
West Gulf Maritime Assn., found that a broad
remedy providing make-whole relief to "applicants
who were similarly discriminated against," in addi-
tion to the charging party, was inappropriate, in
the absence of evidence that any employee other
than the charging party had applied for work
through the hiring hall and was denied referral, or
was otherwise discriminated against in such a way
as to have suffered a loss of earnings. The Board
thus limited the remedy there to the charging
party. The instant case is distinguishable from West
Gulf Maritime Assn., and thus distinguishable from
Building Contractors, because here the Board, in the
underlying proceeding, adopted the judge's conclu-
sion that there is evidence that other employees
sought referrals and "were subjected by the Re-
spondent to an evaluation of an arbitrary and un-
lawful criteria." 274 NLRB at 1060.
In Contractors of Pennsylvania, the Board adopted
the judge's recommendation that certain individuals
named in the complaint and found to have been
discriminated against because of their intraunion
political and protected concerted activities be
granted a make-whole remedy. However, the
Board found- the judge' s inclusion in the make-
whole order of unnamed individuals who "may
have been discriminated against" to be overly
broad and deleted that portion of the remedy. In so
doing, the Board noted that it has ordered remedial
relief to unnamed individuals similarly situated to
named discriminatees in situations where there is
evidence of discrimination against a defined and
easily identified class. Noting the difficulties of es-
tablishing what constitutes a political dissident
283 NLRB No. 119
780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
within a union, the Board found that the discrimin-
atees in Contractors of Pennsylvania did not establish
a class of individuals or that discrimination on a
classwide basis had occurred. The Board thus
found there that it was necessary to establish evi-
dence of discrimination against each individual and
that, in the absence of such evidence, a broad
make-whole order was inappropriate.
By contrast, in the instant case, the judge found
there was evidence that a number of individuals
had applied to the hiring hall and were subjected
to discriminatory criteria regarding referral. Thus,
unlike Contractors of Pennsylvania, the judge's find-
ings showed discrimination, together with the exist-
ence of identifiable employees who were discrimin-
atorily treated. Thus, this case is distinguishable
from Contractor's of Pennsylvania. As there is no
basis for deleting` the language regarding similarly
situated employees from the Board's original Deci-
sion and Order, the Respondent's motion to recon-
sider is denied.2 Accordingly,
IT IS ORDERED that the Respondent's motion to
reconsider is denied,
2 The concerns raised by the General Counsel in she reply are proper-
ly a matter for compliance. Thus, if the General Counsel is unable to
identify any particular individuals other than the Charging -Party who
have suffered a loss of earnings as a result of discrimination by the Re-
spondent, she may close the case once the Charging Party has been made
whole and the requirements of subpars. 2(b) through (f) of the Order
have been satisfied.