Teamsters Local Union No. 688

National Labor Relations Board - Board Decisions

Dec 24, 1974

215 N.L.R.B. 852 (N.L.R.B. 1974)

852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters Local Union No. 688, affiliated with the
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America and_
Corrine C. Freant . Case 14-CA-7919
December 24, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On September 18, 1974, Administrative Law Judge
Peter E. Donnelly issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel filed exceptions and supporting briefs.
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 at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The Administrative Law Judge found, and we agree,
that Respondent Union violated Section 8(a)(1), (2),
and (3) by negotiating' and entering into a collective-
bargaining agreement with itself and by requiring its
employees to join Respondent. The Administrative
Law Judge also properly found that Respondent did
not commit additional 8(a)(1) and (2) violations by
failing, prior to the commencement of negotiations, to
advise its employees of their rights under Section 7 of
the Act. However, we believe that it will effectuate the
purposes of the Act to expand the Administrative Law
Judge's remedy for Respondent's unlawful conduct by
now requiring it to advise the employees of their Sec-
tion 7 rights. We shall therefore modify the Adminis-
trative Law Judge's recommended Order and Notice
accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge, as modified below, and
hereby orders that Respondent, Teamsters Local
Union No. 688, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, St. Louis, Missouri, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order, as modified
herein:
1. Insert the following paragraph in the Administra-
tive Law Judge's recommended Order as new para-
graph 2(a) and reletter the subsequent paragraphs ac-
cordingly:
"(a) Advise the employees that Respondent will not
seek or accept them as members for the purpose of
representing them in collective-bargaining or the ad-
justment of grievances; that all employees are free to
join or refrain from joining any other labor organiza-
tion; and that Respondent will bargain collectively with
such other labor organization, upon request, if the lat-
ter is chosen as their representative by a majority of the
employees."
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
WE WILL NOT seek or accept our employees as
members for the purpose of representing them in
collective bargaining or the adjustment of griev-
ances. All our employees are free to join or refrain
from joining any other labor organization.
WE WILL NOT recognize , deal with , or enter into
any collective-bargaining agreement with our-
selves as the exclusive bargaining representative
for the purposes of collective bargaining and ad-
justment of grievances for our office clerical em-
ployees.
WE WILL NOT perform , enforce , or give effect to
the current agreement with ourselves covering of-
fice clerical employees dated June 1, 1973.
WE WILL NOT in any like or related manner dis-
criminate against employees or interfere with, re-
strain , or coerce them in the exercise of their right
to self-organization , to bargain collectively
through representatives of their own choosing, or
to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid
or protection or to refrain from any or all such
activities.
WE WILL bargain collectively with any other la-
bor organization, upon request , if it is chosen by
a majority of the employees to serve as their repre-
sentative.
WE WILL reimburse all our present and former
employees whose employment began on or after
November 7, 1973, who were not , at the time they
commenced their employment , members of Team-
sters Local Union No. 688 , affiliated with the In-
ternational Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpters of America,
for all dues, assessments , and fees paid to Team-
215 NLRB No. 127
TEAMSTERS LOCAL UNION NO. 688
sters Local Union No. 688, affiliated with the In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
together with interest at the rate of 6 percent per
annum.
TEAMSTERS LOCAL UNION NO 688,
AFFILIATED WITH THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND
HELPERS OF AMERICA
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge: The
charge herein was filed by Corrine C. Freant, an Individual,
on May 8, 1974. An amended charge was filed on June 10,
1974, and the complaint thereon was issued by the General
Counsel of the National Labor Relations Board on June 13,
1974, alleging that Teamsters Local Union No. 688, affiliated
with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein called
Employer-Union or Respondent, violated Section 8(a)(1), (2),
and (3) of the Act by executing and enforcing a collective-
bargaining agreement with itself covering its office clerical
employees. Further, that by failing to affirmatively advise
these employees of certain Section 7 employee rights and
Respondent's obligations, Respondent violated Section
8(a)(1) and (2) of the Act. An answer thereafter was timely
filed by Respondent on June 19, 1974. Pursuant to notice, the
hearing was held before the Administrative Law Judge in St.
Louis, Missouri , on July 29, 1974 Briefs have been timely
filed by General Counsel and Respondent, which have been
duly considered.
FINDINGS OF FACT
I THE OPERATIONS OF THE RESPONDENT
Respondent is now and has been, at all times material
herein, a labor organization affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
The Respondent has its principal office and place of busi-
ness located at 300 South Grand Avenue, St. Louis, Missouri.
The Respondent is engaged in the organization of unrepre-
sented employees and in representing its members and other
employees in collective bargaining with various employers
concerning wages, hours of employment, and other terms and
conditions of employment.
The Respondent has approximately 13,000 members and
has received during the last 12 months, which period is repre-
sentative of all times material herein, annual gross income in
excess of $500,000 of which an amount in excess of $50,000
was transmitted to the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
whose principal office is located in Washington, D C. The
Respondent also maintains collective bargaining with various
853
employers , including Crown Zellerbach Corporation , Flexi-
ble Packaging Division.
Crown Zellerbach Corporation , Flexible Packaging Divi-
sion annually sells at its St. Louis, Missouri , facility products
valued in excess of $50 ,000 of which products valued in ex-
cess of $50 ,000 were shipped from its St. Louis, Missouri,
facility directly to points located outside the State of Mis-
souri.
The answer admits, and I find that the Respondent is now
and has been , at all times material herein , an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
IL THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union No. 688, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, the Respondent, admits it is a
labor organization within the meaning of the Act and I so
find.
III ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges, in substance, that Respondent
recognized itself as the exclusive bargaining representative of
its office clerical employees and thereafter executed and is
presently enforcing a contract with itself. The effective dates
are June 1, 1973, to May 31, 1976. Further that said contract
contains a union-security provision requiring the office cleri-
cal employees to become members of Respondent as a condi-
tion of employment, which constitutes an 8(a)(3) violation as
well. In addition Respondent is alleged to have violated Sec-
tion 8(a)(1) and (2) of the Act by failing to formally advise
its employees that they have the right to engage in concerted
activities, that they have the right to join another labor organ-
ization in order to exercise their statutory rights, and that it
would bargain collectively upon demand with such labor
organization if the majority of its employees selects such
labor organization and that the Respondent does not propose
to represent its employee-members for the purpose of collec-
tive bargaining and/or the adjustment of grievances.
Facts
The relevant facts, substantially undisputed herein, dis-
close that Respondent employs about 16 office clerical em-
ployees under an office manager, Robert Lyons, who reports
to Philip L. Goodwilling, comptroller of Respondent. After
the expiration of a prior contract, in about mid-June 1973,
Otto Sanders, a business representative of Respondent, was
assigned by Paul Aker, who was at that time president of
Respondent, to represent, inter alia, the Respondent's office
clerical unit in the negotiation of a new contract. At or about
this time Sanders was given certain contract proposals which
had been drafted by an employee negotiating committee
representing various units.' Joint negotiations were con-
I units included the Labor Health Institute office clerical and dental
assistants , Council Plaza Redevelopment office clericals, Local 600 office
clericals, Local 682 office clericals , Local 54 office clericals, Joint Council
(Continued)
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ducted on behalf of these units between the Respondent,
represented by Ken Carroll, a trustee, member of Respon-
dent's executive board and head of Respondent's negotiating
department and Aker, and the various clerical units repre-
sented by Sanders and three negotiating committee members,
two of whom were clericals in Respondent's office clerical
unit. After approximately 10 to 12 joint negotiating sessions,
separate contracts were signed for various units including a
separate contract for Respondent's office clerical employees.
This is a 3-year contract with effective dates of June 1, 1973,
to May 31, 1976, signed by Ronald Gamache, secretary-
treasurer of the Respondent, as well as Sanders and two
negotiating committee members, Mary Lee Wild and Sally
Rossell.
The preamble of the contract reads:
This AGREEMENT, dated as of the 1st day of JUNE, 1973,
by and between TEAMSTER'S LOCAL UNION NO SIX EIGHTY-
EIGHT (#688) or their successors, located in ST LOUIS,
MISSOURI, hereinafter called the "EMPLOYER", party of the
First Part and TEAMSTER'S LOCAL UNION NO 688, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
its successors, party of the Second Part, hereinafter
called the "UNION", is for the purpose of establishing
rates of pay, wages, hours of work and conditions of
employment to be observed between the parties hereto.
The contract provides for exclusive recognition as follows:
ARTICLE I-RECOGNITION
Section 1. The Employer agrees to recognize and does
hereby recognize the Union, its agents, representatives,
or successors, as the exclusive Bargaining Agency for all
of the employees of the Employer as described in AP-
PENDIX "A".
Section 2. The Employer will neither negotiate nor
make Collective Bargaining Agreements for any of its
employees in the Bargaining Unit covered hereby unless
it be through duly authorized representatives of the
Union.
Section 3 The Employer agrees that it will not spon-
sor or promote, financially or otherwise, any group or
labor organization, for the purpose of undermining the
Union; nor will it interfere with, restrain, coerce, or
discriminate against , any of its employees in connection
with their membership in the Union.
Union security is provided for in the following article:
standing of the Union shall be conditioned upon those
persons continuing their payment of the periodic dues of
the Union; and that the continued employment of per-
sons who were in the employ of the Employer prior to
the date of this Agreement and who are not now mem-
bers of the Union, shall be conditioned upon those per-
sons becoming members of the Union not later than the
thirty-first day following the execution date of this
Agreement. The failure of any person to become a mem-
ber of the Union at such required times shall obligate the
Employer, upon written notice from the Union to such
effect and to the further effect that union membership
was available to such person on the same terms and
conditions generally available to other members, to
forthwith discharge such person. Further, the failure of
any person to maintain his union membership in good
standing as required herein Shall, upon written notice to
the Employer by the Union to such effect obligate the
Employer to discharge such person.
The checkoff provisions of Article IV read:
ARTICLE IV-CHECKOFF
Section 1. It is understood and agreed between the
Employer and the Union that the Company will deduct
any back unpaid union dues and initiation fees owed the
Union (provided such indebtedness for dues or initiation
fees was incurred during employment with the Em-
ployer) as well as current monthly union dues and initia-
tion fees and or uniform assessments from the paycheck
of employees who have signed proper legal authoriza-
tions for such deductions and who are covered by this
Agreement on the last pay day of the month preceding
the current month for which current union dues and
initiation fees are due the Union. The Employer further
agrees to remit to the Secretary-Treasurer of the Union,
all union dues, initiation fees and/or uniform assess-
ments so deducted from the employees pay check im-
mediately.
Section 2. The Employer will recognize any other au-
thorization for deductions from wages, if in compliance
with state law, to be transmitted to the Local Union or
to such other organizations as the Union may request if
mutually agreed to. No such authorization shall be
recognized if in violation of state or federal law. No
deduction shall be made which is prohibited by applica-
ble law.
ARTICLE V-UNION SECURITY CLAUSE
It is understood and agreed by and between the parties
hereto that as a condition of continued employment, all
persons who are hereafter employed by the Employer in
the unit which is the subject of this Agreement shall
become members of the Union not later than the thirty-
first day following the begainning of their employment
or the execution date of this Agreement, whichever is the
later; that the continued employment by the Employer
in said unit of persons who are already members in good
Credit Union office clericals , Joint Council Drive office clericals, as well as
Teamsters Local 688 office clericals.
Dues have been , and are being, checked off under the terms
of this contract.
Discussion and Analysis
A review of precedent in the matter of employee represen-
tation makes it clear that scrupulous attention must be paid
to insuring, in the representation of employees, that those
individuals charged with such responsibility are free from any
conflicting interests which might obscure or confuse this high
purpose. This duty of exclusive and unencumbered represen-
tation reaches its most important application in the negotia-
tion and execution of collective-bargaining agreements. In
TEAMSTERS LOCAL UNION NO. 688 855
such matters of employee representation , unions have the
same responsibilities and obligations under the Act as em-
ployers. Office Employees International Union , Local 11 v.
N.L.R.B., 353 U.S. 313 (1957). Employers may not sit on
both sides of the negotiating table , neither may a union, such
is the law As the Board stated in Oregon Teamsters Security
Plan Office, 119 NLRB 207 (1957) at 211, "Clearly [the
Union ] is not competent to bargain with itself concerning the
terms of employment of its own employees . Such bargaining
would necessarily be a mere sham and not genuine collective
bargaining ." Nothing in the instant case warrants a different
conclusion.
Respondent argues that the facts of this case do not show
interference with employee rights, rather that the relationship
between Respondent and representatives of the clerical unit
were fairly conducted , essentially at "arm 's length." How-
ever, it is difficult for me to conceive a situation where one
may deal at "arm's length " with one's self despite the highest
motivation . The basic conflict of interests exist in such a
situation if only by reason of the relationship itself Accord-
ingly , I find that Respondent , by negotiating and entering
into the above collective -bargaining agreement with itself, has
violated Section 8(a)(1) and (2) of the Act In addition, since
the contract contains union -security provisions under which
moneys are being exacted from covered clerical employees I
find the withholding of these moneys to constitute discrimi-
nation within the meaning of Section 8(a)(3) of the Act.
General Counsel also urges that Respondent 's failing to
affirmatively advise its employees with respect to Section 7
rights, as alleged in the complaint , are additional counts of
8(a)(1) and (2) misconduct , citing Retail Store Employees
Union, Local 428, AFL-CIO, 163 NLRB 431 ( 1967). In that
case the Board order did require Respondent to affirmatively
advise employees of their Section 7 rights. However , this does
not, in my opinion , represent a holding by the Board to the
effect that all employees hired by a labor organization must
be so advised . Rather , I read this case to hold that in those
circumstances where a union is privileged to require member-
ship as necessary to employment , that member-employees
must be so advised in order to insure that their Section 7
employee rights remain unaffected.
In the instant case the requirement of union membership
was not imposed by reason of any union business require-
ment, but solely because the union -security provisions of the
contract required it. Unlike the Retail Store Employees case,
no argument was even made herein that union membership
was a business necessity and no finding thereon has been
made. Indeed , if no such business necessity can be justified,
it could well be, although I do not speculate that requiring
union membership would be an 8(a)(2) violation no matter
what the employees are told.
In any event , it is axiomatic that the findings in each case
depend on the facts. In this case , the facts disclose an illegal
contract proscribed by Section 8(a)(1), (2), and (3) of the Act
and appropriate relief is granted below , but I cannot conclude
that the failure to affirmatively advise, on the facts of this
case , is an additional violation since the matter of union
membership as a business necessity , on which the findings are
based in Retail Store Employees, is not in issue in the instant
case and to make findings and grant relief based on facts not
present in the case at bar would be inappropriate
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close, inti-
mate, and substantial relation to trade , traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V THE REMEDY
As it has been found that Respondent has engaged in cer-
tain unfair labor practices , it will be recommended that the
Board issue the recommended Order set forth below requir-
ing Respondent to cease and desist from said unfair labor
practices and take certain affirmative action which I find will
effectuate the policies of the Act.
Since the negotiation and execution of the contract in issue
herein has been found to violate Section 8(a)(1) and (2) of the
Act, I shall recommend, inter alia, that Respondent cease
performing, enforcing, or giving effect to the contract with
itself covering its office clerical employees. Further, inas-
much as I have concluded specifically that Respondent has
violated Section 8(a)(3) of the Act by maintaining and enforc-
ing the union -security ' provisions of the contract , I shall
recommend that the Respondent, in its capacity as an em-
ployer, reimburse all present and former employees of Re-
spondent who were not at the commencement of their em-
ployment by Respondent, members of Respondent in its
capacity as a labor organization and whose employment be-
gan on or after November 7, 1973 (the date 6 months prior
to the filing of the original charge herein), for all dues, assess-
ments, and fees paid to the Respondent in its capacity as a
labor organization pursuant to the unlawful conduct herein
found. Retail Store Employees Union Local 428, supra; La-
peer Metal Products Co., 134 NLRB 1518, 1521-23 (1961);
together with interest at the rate of 6 percent per annum.
Retail Store Employees Union Local 428, supra; Seafarers
International Union of North America, Great Lakes District,
AFL-CIO, 138 NLRB 1142 (1962)
Upon the basis of the foregoing facts and the entire record
in this case I make the following.
CONCLUSIONS OF LAW
1. Teamsters Local Union No. 688, affiliated with the In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is an employer within the
meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local Union No. 688, affiliated with the In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers-of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By recognizing, dealing with , and entering into a collec-
tive-bargaining agreement with itself as the exclusive bargain-
ing representative for the purposes of collective bargaining
and adjustment of grievances for its office clerical employees,
Respondent has violated Section 8(a)(1) and (2) of the Act.
4. By maintaining and enforcing the union -security provi-
sions of such contract, Respondent has, and is , violating Sec-
tion 8(a)(1), (2), and (3) of the Act.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact and conclusions of law
and the entire record, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, I hereby issue the
following recommended:
ORDER'
Respondent, Teamsters Local Union No. 688, affiliated
with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, St. Louis,
Missouri, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Recognizing, dealing with, or entering into any collec-
tive-bargaining agreement with itself as the exclusive bargain-
ing representative for the purposes of collective bargaining
and adjustment of grievances for its office clerical employees.
(b) Performing, enforcing, or giving effect to its current
contract with itself, dated June 1, 1973, including the union-
security provisions thereof.
(c) Encouraging membership in Respondent by engaging
in any of the above conduct from which it is ordered to cease
and desist or in any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
right to self-organization to form, join, or assist any labor
organization, to bargain collectively through representatives
of their own choosing, or to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities except
to the extent that such rights may be affected by an agreement
requiring membership in a labor organization, other than
Respondent, as authorized in Section 8(a)(3) of the National
Labor Relations Act, as amended.
2. Take the following affirmative action which is found will
effectuate the policies of the Act:
(a) Reimburse all present and former employees of the
Respondent who were not members of the Respondent in its
capacity as a labor organization at the time they were hired
by Respondent in its capacity as an employer and whose
employment began on or after November 7, 1973, for all dues,
assessments and initiation fees paid to the Respondent in its
capacity as a labor organization in the manner and to the
extent set forth in the section of this Decision entitled "The
Remedy."
(b) Preserve and, upon request , make available to the
Board or its agents for examination and copying, all financial
records and reports , and all other records necessary to ana-
lyze the amounts of money payable by the Respondent under
the terms of this Order.
(c) Post at its offices and meeting halls in St . Louis, Mis-
souri , and elsewhere within the geographic jurisdiction of the
Respondent , copies of the attached notice marked
"Appendix ."3 Copies of said notice, on forms provided by
the Regional Director for Region 14, after being duly signed
by Respondent 's authorized representatives , shall be posted
by it immediately upon receipt thereof and be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including places where notices to employees and members are
customarily posted Reasonable steps shall be taken to ensure
that said notices are not altered , defaced , or covered by any
other material.
(d) Notify the Regional Director for Region 14, in writing,
within 30 days from the date of the receipt of this Decision,
what steps have been taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed insofar
as it alleges violations of the Act not specifically found.
2 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes
3 In the event that the Board's 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 National Labor Relations Board "