Teamsters Local 331 (Statewide)

National Labor Relations Board - Board Decisions

Sep 29, 1994

315 N.L.R.B. 10 (N.L.R.B. 1994)

10
315 NLRB No. 4
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In adopting the judge’s finding that the Respondent violated Sec.
8(b)(1)(A) and (2) by causing the Company to terminate Charging
Party Leo Sullivan because he was not a current member of the Re-
spondent, we also rely on Quality Mechanical, 307 NLRB 64
(1992). As noted in that case, ‘‘a union may be held accountable for
results triggered by what on the surface appears an innocent act
which the union well knew would produce a desired result.’’ Id. at
66.
3 The judge’s remedy provides that the Respondent must make
Sullivan whole for any loss of earnings and other benefits, computed
on a quarterly basis from the date of his termination until 5 days
after notification to the Company that it has no objection to the
Company’s employing Sullivan. The Board has held that in cases
where a union unlawfully causes an employer to discharge an em-
ployee, and there is no culpability on the part of the employer, the
union will be required to make the employee whole for all losses
of wages and benefits suffered by the employee as a result of the
union’s discrimination against the employee until the employee is ei-
ther reinstated by the employer to his or her former or substantially
equivalent position or until the employee obtains substantially equiv-
alent employment elsewhere. See Sheet Metal Workers Local 355
(Zinsco Electrical), 254 NLRB 773 (1981), enfd. in relevant part 716
F.2d 1249 (9th Cir. 1983); Electrical Workers IBEW Local 99 (Elec-
trical Maintenance), 312 NLRB 613 (1993). We therefore modify
the remedy in this case to conform with Zinsco.
Because the recommended Order incorporates the remedy by ref-
erence and does not specifically mention the 5-day notification pro-
vision, it is unnecessary to modify the recommended Order.
1 All dates are in 1993 unless otherwise indicated.
2 The unopposed motion to correct the transcript in the General
Counsel’s brief (fn. 3), dated March 14, 1994, is granted.
Teamsters Local 331 a/w International Brotherhood
of Teamsters, AFL–CIO (Statewide) and Leo
Sullivan. Case 4–CB–6890
September 29, 1994
DECISION AND ORDER
BY MEMBERS DEVANEY, BROWNING, AND COHEN
On April 11, 1994, Administrative Law Judge Mar-
ion C. Ladwig issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering 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,1 and con-
clusions2 and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Teamsters Local 331 a/w
International Brotherhood of Teamsters, AFL–CIO,
Pleasantville, New Jersey, its officers, agents, and rep-
resentatives, shall take the action set forth in the Order.
Margarita Navarro-Rivera, Esq., for the General Counsel.
Walt De Treux, Esq., of Philadelphia, Pennsylvania, for the
Union.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on February 8, 1994.
The charge was filed by Leo Sullivan, an individual, against
the Union on April 16, 19931 (amended June 3), and the
complaint was issued June 8.
On March 9, when the Union signed a collective-bargain-
ing agreement with Statewide Co., the owner orally promised
that four of the employees would join the Union and that the
Company would hire two additional employees through the
union hall.
Later that month the Company recalled Sullivan, a laid-off
employee who was a member of the Union, but on with-
drawal. After being sent home with other employees because
of rain on April 1 (his first day at work), Sullivan went to
the union hall and informed Vice President Druly Golden
that he was going to work for Statewide. Golden telephoned
the company owner, inquired whether the owner was going
to abide by his promise, and mentioned Sullivan’s being
hired. That evening when Sullivan called the Company to
find out when to report to work the next day, he was denied
employment.
The primary issue is whether the Union, the Respondent,
attempted to cause and caused the Company to terminate
Sullivan because he was not a current member of the Union,
violating Section 8(b)(1)(A) and (2) of the National Labor
Relations Act.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Union, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Statewide Co., a corporation, is engaged in the construc-
tion business at its facility in Hammonton, New Jersey,
where it annually receives goods valued over $50,000 di-
rectly from outside the State. The Union, Teamsters Local
331, admits and I find that the Company is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
11TEAMSTERS LOCAL 331 (STATEWIDE)
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
For 5-1/2 years Sullivan, who lived in New Jersey, was a
member of the Union, a New Jersey local of the Teamsters.
Being unable to find other employment after losing his New
Jersey job, he took a withdrawal from the Union and joined
a Teamsters local in Philadelphia, where he obtained part-
time employment. (Tr. 9, 12, 14, 16.)
Sullivan continued to seek employment in New Jersey, ap-
plying on his own ‘‘all over the place.’’ In December 1992
he finally found part-time employment at Statewide (then a
nonunion employer) by following George Smith Jr. (the own-
er’s son) to jobsites and ‘‘bugging him’’ for a job. When
Statewide shut down in January because of the weather, Sul-
livan worked part-time in Philadelphia out of the Teamsters
local there. (Tr. 6–7, 9, 15–16, 34.)
Meanwhile on March 9 the Union signed a collective-bar-
gaining agreement (without an exclusive hiring hall provi-
sion) with Statewide. Owner George Smith Sr. orally prom-
ised that four of the employees would join the Union and
that the Company would employ two other employees
through the union hall. (R. Exh. 2; G.C. Exh. 2; Tr. 26, 32.)
B. Sullivan’s Recall and Termination
In late March Foreman John Rausch telephoned Sullivan
and said for him to come in, that Rausch had a full-time job
for him. Sullivan reported for work on April 1. Because of
rain, Rausch sent him and the whole crew home and told
him to call back when it stopped raining for his hours the
next day. (Tr. 7–10; R. Exh. 1 at 1–2.)
That morning (April 1), Sullivan went to the union hall
and told Vice President Druly Golden that he was going to
work for Statewide, but was rained out that day. Golden ad-
mitted telephoning Owner George Smith Sr. later that morn-
ing and asking if he was going to live up to his promise to
hire employees through the union hall. As Golden further ad-
mitted, ‘‘At that point I said I had heard he hired a gen-
tleman named Leo Sullivan. And he said to me he [doesnt]
even know who Leo Sullivan is’’ (evidently not being aware
that his son had employed Sullivan in December 1992 and
that Foreman Rausch had recalled Sullivan from layoff, stat-
ing that Rausch had a full-time job for him). (Tr. 28–29, 33;
G.C. Exh. 2.)
That evening Sullivan telephoned Rausch to find out what
time to report to work the next day, but was denied employ-
ment (Tr. 10–11). (I do not rely on the hearsay testimony re-
garding the content of the conversation.)
The next day (April 2), as Sullivan credibly testified, he
went to the union hall and complained to Golden about being
laid off. Golden responded that he was ‘‘tired of hearing’’
from every employer ‘‘that they want to hire’’ Sullivan. (As
found, Sullivan had been seeking a job on his own ‘‘all over
the place.’’) Golden also stated, as Sullivan credibly testified,
that ‘‘I’m not a member of his union,’’ that ‘‘I’m not paying
dues to him,’’ that ‘‘he has to put his own people in there,’’
that ‘‘I’m not one of his own people,’’ and that ‘‘I should
stay in Philly where I belong.’’ (Tr. 11–13; R. Exh. 1 at 2.)
When called as the Union’s defense witness and asked
about his next conversation with Sullivan, after talking to
Owner Smith, Golden ignored his April 2 conversation with
Sullivan and recounted only a later conversation in which he
and Union President Joseph Yeoman talked to Sullivan (Tr.
13–15, 30–31). As indicated, I have credited Sullivan’s testi-
mony quoted above regarding Golden’s April 2 conversation
with Sullivan. Contrary to the Union’s challenge to Sulli-
van’s credibility, he impressed me as an honest witness,
doing his best to give an accurate account of what happened,
despite the confusion in his testimony when recalled to the
stand near the end of the trial (Tr. 39–43).
C. Concluding Findings
Golden denied giving Owner Smith any indication that he
wanted Sullivan fired (Tr. 29) and denied informing Smith
that Sullivan was not a member of the Union (Tr. 33, 35).
When asked his purpose in calling Smith, Golden claimed
(Tr. 31):
Well, I assumed that being’s they hired Leo [Sullivan],
that work was picking up, and he would be calling us
for additional people. And I called to see if that was
going to happen.
The Union contends in its brief (at 5) that because ‘‘no
one was hired after Sullivan, it is reasonable to infer that
Statewide let Sullivan go because it had no work for him be-
yond that rained-out day.’’ I do not agree.
I find it obvious from Golden’s admissions that when he
telephoned Smith on April 1, he was complaining about the
Company’s hiring Sullivan directly instead of hiring someone
through the union hall. As admitted, Golden first asked
Smith if he was going to live up to his promise to hire em-
ployees through the union hall. Golden then referred to Sulli-
van’s being hired—not hired through the union hall, but
hired directly by the Company.
By asking the question about Smith’s keeping his promise
and referring to Sullivan’s being hired outside the union hall,
Golden clearly implied that Sullivan (whom the Company
had previously hired directly while operating as a nonunion
contractor) was not a member of the Union and that Golden
wanted Smith to terminate Sullivan and hire someone
through the union hall.
Moreover, Golden revealed to Sullivan at the union hall
the next day (April 2) that he had the discriminatory purpose
of getting Sullivan replaced with a union member by stating,
as found, that ‘‘he has to put his own people in there’’ and
that Sullivan should stay in Philadelphia where he belonged
(as a member of a Teamsters local there).
I therefore find as alleged that the Union, by Vice Presi-
dent Golden, attempted to cause and caused the Company to
terminate Sullivan (on April 1, the date Golden telephoned
Owner Smith), violating Section 8(b)(1)(A) and (2) of the
Act.
CONCLUSION OF LAW
By attempting to cause and causing the Company to termi-
nate Leo Sullivan on April 1, 1993, because he was not a
current member, the Respondent Union has engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the
Act.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 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 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.’’
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having caused Statewide Co. to terminate
Leo Sullivan because he was not a current member, it must
immediately notify the Company that it has no objection to
the Company’s employing him and must make him whole
for any loss of earnings and other benefits, computed on a
quarterly basis from the date of his termination until 5 days
after the notification, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). Food & Commercial Workers Local 454
(Central Soya), 245 NLRB 1295, 1299 (1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Teamsters Local 331, a/w International
Brotherhood of Teamsters, AFL–CIO, Pleasantville, New Jer-
sey, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Attempting to cause or causing Statewide Co. to termi-
nate or otherwise discriminate against any employee for not
being a current member of Teamsters Local 331.
(b) 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) Notify Statewide Co. that it has no objection to the
Company’s employing Leo Sullivan and request the Com-
pany to reinstate him.
(b) Make Leo Sullivan whole for any loss of earnings and
other benefits suffered as a result of the Company’s terminat-
ing him, in the manner set forth in the remedy section of the
decision.
(c) Post at its union hall in Pleasantville, New Jersey cop-
ies of the attached notice marked ‘‘Appendix.4 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 4, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by Statewide Co., if willing, at
all places where notices to employees are customarily posted.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO 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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT attempt to cause or cause Statewide Co. to
terminate or otherwise discriminate against you for not being
a current member of Teamsters Local 331 a/w International
Brotherhood of Teamsters, AFL–CIO.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL notify Statewide Co. that we have no objection
to the Company’s employing Leo Sullivan and we will re-
quest the Company to reinstate him.
WE WILL make Leo Sullivan whole for any loss of earn-
ings and other benefits resulting from the Company’s termi-
nating him, less any net interim earnings, plus interest.
TEAMSTERS LOCAL 331