Teamsters Local Union No.174, Etc.

National Labor Relations Board - Board Decisions

Dec 11, 1964

149 N.L.R.B. 1570 (N.L.R.B. 1964)

1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Upon written notice at least sixty (60) days immediately prior to October 16,
1963 either party may terminate this agreement or make such changes or amend-
ments as may be agreed upon. If the parties are unable to agree upon such modifica-
tions by October 15, 1963, either party shall have the right upon thirty (30) days'
written notice to terminate the Agreement.
73. Notifications referred to above shall be sent by Registered Mail to the Em-
ployer or to the Union's Secretary at their respective Meridian, Mississippi addresses.
EXHIBIT "A"
SCHEDULE OF JOB CLASSIFICATIONS AND RATES
Stock Clerical Department
Storeroom clerk______________ $2.05
Checking clerk--------------- 2.14
* * * *
Utility clerk----------------- $2.21
Wood scaling clerk----------- 2.07
* * *
Yard Department
Slasher operator______________ $1.96
Truck driver---------------- 1.89
Crane operator--------------- 2.68
Pool crane operator---------- $2.53
Department utility ------------ 1.96
Teamsters Local Union No. 174, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America , Independent [ Consolidated Fruit and
Produce Company] and Earl C. Gann . Case No. 19-CB-997.
December 11, 1964
DECISION AND ORDER
Upon a charge duly filed by Earl C. Gann, the General Counsel of
the National Labor Relations Board, by the Director of Region 19
on June 29, 1964, issued a complaint against Respondent Teamsters
Local Union No. 174, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, In-
dependent, alleging that the Respondent Union had engaged in and
was engaging in unfair labor practices within the meaning of Section
8(b) (1) (A) and (2) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge, complaint, and
notice of hearing before a Trial Examiner were duly served upon
the Respondent Union and the Charging Party. The Respondent
Union filed an answer to the complaint denying the commission of the
alleged unfair labor practices.
On August 26, 1964, all parties to this proceeding entered into a
stipulation of facts. The parties agreed that the formal papers and
the stipulation of facts, together with the documents incorporated by
reference therein, constitute the entire record in the case, and that no
oral testimony is necessary or desired by any of the parties. The
parties further waived a hearing before a Trial Examiner, the mak-
149 NLRB No. 143.
TEAMSTERS LOCAL UNION NO. 174, ETC. 1571
ing of findings of fact and conclusions of law by a Trial Examiner,
and issuance of a Trial Examiner's Decision, and agreed to submit
this case directly to the Board for findings of fact, conclusions of law,
and an order.
By Order dated September 9, 1964, the Board approved the stipu-
lation and made it part of the record herein. The Board fixed a time
for the filing of briefs, and thereafter each of the parties filed briefs
in support of its contentions. None of the parties requested oral
argument.
Upon the basis of the aforesaid stipulation and the entire record in
the case, including the charge, the complaint, the answer, and the
briefs, the Board 1 makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF CONSOLIDATED FRUIT AND PRODUCE COMPANY
Consolidated Fruit and Produce Company, herein referred to as the
Company, is a Washington corporation with its principal place of
business in Seattle, Washington, and is engaged in the wholesaling of
fruits and, vegetables. During 1963 its dollar volume of sales
exceeded $500,000 and it sold and shipped products valued in excess
of $50,000 to points outside the State of Washington. We find that
the Company is engaged in commerce within the meaning of Section
2(6) and (7) of the Act, and that-it will effectuate the purposes of
the Act to assert jurisdiction' in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Union, Teamsters Local Union No. 174, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Independent, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Company is a member of Food Industries, Inc., an asso-
ciation which engages in collective bargaining, and is signatory to a
collective-bargaining agreement with the Respondent Union nego-
tiated by the association which became effective April 1, 1962, and is
to continue in effect until April 1, 1965. The agreement contains the
following union-security clause :
All Employees coming under the terms of this Agreement shall
make application to join the Union within thirty-one (31) days
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Chairman McCulloch and Members Leedom and Jenkins].
1572 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
following the date of employment or within thirty-one (31) days
following the date of signing of this Agreement, whichever is the
latter [sic], and must maintain membership in good standing for
the life of this Agreement and any renewal thereof. The
Employer shall discharge any employee as to whom the Union,
through its Business Agent, delivers to the Employer a written
notice that such employee is not in good standing in conformity
with this section.
The Charging Party, Earl C. Gann, was employed by Rosella's
Fruit and Produce Company, herein referred to as Rosella's, until
April 1963. Rosella's, a member of the association, was a signatory
to the above-mentioned collective-bargaining agreement. During his
employment with Rosella's, Gann was a member of the Respondent
Union and paid his dues through December 31, 1962. In April 1963
Gann resigned his employment at Rosella's, left the trucking indus-
try, and became self-employed. He neither sought nor obtained a
withdrawal card from the Respondent Union.
On April 27, 1964, Gann was hired by the Company as a part-time
warehouseman and relief truckdriver at a rate of $3.34 per hour. Gann
had never been an employee of the Company prior to April 27, 1964.
On May 5, 1964, the Respondent Union orally notified the Company
that Gann was not in good standing with the Respondent Union and
requested the Company to terminate Gann for nonpayment of dues.
The Company then ordered Gann to become a member of the
Respondent in good standing.
On May 5, 1964, Gann met with representatives of the Respond-
ent Union who demanded back dues and fines totaling $116.25
as a condition of his reinstatement as a member in good stand-
ing. This sum consisted of dues for the four quarters of 1963,
plus a fine of 75 cents for each quarter; dues for the first quarter of
1964 with a 75-cent fine; and dues for the second quarter of 1964 with
no fine because of no delinquency. Respondent Union's dues are
$18.75 per quarter, plus a 75-cent fine per quarter for each member
whose dues are not paid on or before the last day of the first month
of the current quarter, pursuant to Respondent Union's bylaws. The
Respondent Union demanded payment in full of this amount, which
Gann was unable to pay.
Gann notified the Company of his inability to become a member in
good standing and was told not to return to work on May 6 and 7,
1964. Gann returned to work as a truckdriver on May 8 and during
the day again told the Company he was unable to become a member
in good standing. At the end of the workday the Company notified
TEAMSTERS LOCAL UNION NO. 174, ETC. 1573
Gann that, effective May 11, he was being transferred to the job of
warehouseman at the reduced rate of $2.91 per hour. The parties
stipulated that this transfer resulted from the Respondent Union's
demand upon the Company for Gann's discharge on May 5, 1964.
On May 22, 1964, the Respondent Union again orally informed the
Company that Gann was not a member in good standing and, at the
Respondent Union's request, the Company `terminated Gann at the
close of the workday on that date.
The complaint alleges that, in substance, by causing the Company
to discriminatorily demote and discharge Gann, in violation of Sec-
tion 8(a) (3) of the Act; the Respondent violated Section 8(b) (2) of
the Act and that by making threats of reprisal if its demands for
Gann's discharge were not met also violated Section 8(b) (1) (A) of
the Act.
On the stipulated facts, it is clear that Gann was a new employee
when hired by the Company. He had earlier completely severed his
employment relationship with Rosella's and, for a period of a year,
had been self-employed, retaining, so far as appears, no recall or other
rights under the contract negotiated by the association. When he
began his employment with the Company on April 27, 1964 he was
therefore a new employee entitled to the 30-day grace period for
achieving membership in good standing in the Respondent Union as
provided in the statute. The, _Respondent Union's requests on May 5
and May 22, 1964, that Gann be discharged because he was not then
a member in good standing and because he was delinquent in the
payment of dues, and resultant files, for a period when he was not
employed in the bargaining unit and not subject to the union-shop
provisions of the contract, thus invaded Gann's statutory rights, pro-
tected by Section 7, to refrain from union membership. The fact that
the Respondent Union may have regarded him as a member in an
"expelled" status could not abrogate that right .2 Accordingly, we
find that the requests of the Respondent Union for the discharge of
Gann, which resulted in his demotion on May 11 and his discharge on
May 22, were violative of Section 8(b) (2) of the Act and also con-
stituted restraint and'coercion within the meaning of Section 8(b)
(1) (A) of the Act.
As the stipulation contains no evidence warranting a finding that
the Respondent Union made threats of reprisal if its demands were
not met, we shall dismiss that allegation of the complaint.
2ldarado Mining Co, 77 NLRB 392; Yellow Cab Company, 148 NLRB 620; Spector
Freight System, Inc, 123 NLRB 43, 44-45 ; Local No /,, United Slate, Tile and Composi-
tion Roofer s, etc ( Ai,on Sheet Metal Co ), 140 NLRB 384; United Brotherhood of Car-
penters and Joiners of America, AFL-CIO , Local 7 /13 (Tomblin Company ), 147 NLRB 442
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent Union set forth above, occurring
in connection with the operation of the Company, described above,
have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor dis-
putes, burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent Union has engaged in certain
unfair labor practices, we shall order that it cease and desist there-
from and take certain affirmative action in order to effectuate the
policies of the Act.
Having found that the Respondent Union has caused and attempted
to cause the Consolidated Fruit and Produce Company to discrimi-
nate against Earl C. Gann, it will be ordered that the Respondent
Union notify Consolidated Fruit and Produce Company and Earl C.
Gann, in writing, that it has no objection to the employment of Gann
by Consolidated Fruit and Produce Company in a position sub-
stantially equivalent to the one which Gann would have held absent
Respondent Union's discrimination against him, without prejudice to
his seniority or other rights and privileges. It will further be ordered
that the Respondent Union make Gann whole for any loss of pay he
may have suffered by reason of its discrimination against him, by
payment to him of an amount equal to that which he would have
earned from May 11, 1964, until the date on which the Respondent
Union notifies Gann and the Company that it has no objection to his
employment by the Company. Loss of pay shall be computed upon
a quarterly basis in the manner established in F. W. Woolworth
Company, 90 NLRB 289. Backpay shall include the payment of
interest at the rate of 6 percent per annum to be computed in the
manner set forth in Isis Plumbing cC Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Consolidated Fruit and Produce Company is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local Union No. 174, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Independent, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By causing or attempting to cause Consolidated Food and Pro-
duce Company to discriminate against Earl C. Gann in violation of
Section 8(a) (3) of the Act, the Respondent Union has engaged in,
and is engaging in, unfair labor practices within the meaning of
Section 8(b) (2) of the Act.
TEAMSTERS LOCAL UNION NO. 174, ETC. 1575
4. By restraining and coercing Gann in the exercise of the rights
guaranteed in Section 7 of the Act, the Respondent Union has
engaged in, and is engaging in, unfair labor practices within the
meaning of Section 8(b) (1) (A) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Teamsters Local
Union No. 174, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Inde-
pendent, its officers, agents, and representatives, shall:
1. Cease and desist from :
(a) Causing or attempting to cause Consolidated Fruit and Pro-
duce Company, its officers, agents, successors, or assigns, to dis-
criminate against Earl C. Gann, or any other employee, in violation
of Section 8(a) (3) of the Act.
(b) In any like or related manner restraining or coercing employ-
ees of Consolidated Fruit and Produce Company in the exercise of
the rights guaranteed them in Section 7 of the Act, except to the
extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the purposes of the Act :
(a) Make whole Earl C. Gann for any loss of pay he may have
suffered by reason of his discriminatory demotion and discharge by
Consolidated Fruit and Produce Company as provided in the section
herein entitled "The Remedy."
(b) Notify Earl C. Gann and the Consolidated Fruit and Produce
Company, in writing, that it has no objection to the employment of
Gann by the Consolidated Fruit and Produce Company.
(c) Notify Earl C. Gann, if presently serving in the Armed Forces
of the United States, that it has no objection to his employment by
the Consolidated Fruit and Produce Company upon application in
accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from
the Armed Forces.
(d) Post at its business offices and meeting halls copies of the
attached notice marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for Region 19, shall, after being
duly signed by a representative of the Respondent Union, be posted
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States'Court of Appeals, Enforcing an Order"
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Respondent immediately upon receipt thereof, and be main-
tained by it for 60, consecutive days thereafter, in conspicuous places,
including all places where notices to its members are customarily
posted. Reasonable steps shall be taken by the Respondent Union to
insure that said notices are not altered, defaced, or covered by any
other material.
(e) Mail to the Regional Director for Region 19 signed copies of
the notice attached hereto as an Appendix for posting at the office
of the Consolidated Fruit and Produce Company, said Company
willing, in places where notices to the Company's employees are cus-
tomarily posted.
(f) Notify the Regional Director for Region 19, in writing, within
10 days from the date of this Order, what steps the Respondent
Union has taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF TEAMSTERS LOCAL'-UNION No.
174, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
INDEPENDENT F '
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the purposes of the National
Labor Relations Act, as amended, we hereby notify , our member's
that :
WE WILL NOT cause or attempt to cause Consolidated Fruit and
Produce Company to discriminate against Earl C. Gann in vio-
lation of Section 8(a) (3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce
employees of the company in the exercise of. their rights guar-
anteed in Section 7 of the Act.
WE WILL notify the Company, with a copy of such notice to
Earl C. Gann, that we have no objection to his employment with
the Company.
WE WILL make Earl C. Gann whole for any loss of earnings
suffered as a result of the discrimination we. have practiced
against him.
TEAMSTERS LOCAL UNION No. 174, AFFILIATED WITH
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, INDEPENDENT,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify Earl C. Gann, if presently serving in the
Armed Forces of the United States, that we have no objection to his
MORRISON-KNUDSEN COMPANY, INC., ETC. 1577
employment by the Consolidated Fruit and Produce Company, upon
application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
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.
Employees may communicate with the Regional Office of the
Board, 327 Logan Building, 800 Union Street, Seattle, Washington,
Telephone No. _Mutual 2-3300, Extension 553, if they have any ques-
tions concerning this notice or compliance with its provisions.
Morrison-Knudsen Company , Inc. and Hawaiian Dredging and
Construction Company , a Division of Dillingham Corporation,
a Joint Venture and Fred Crawford . Case No. 37-CA-299.
December 11, 1,964
DECISION AND ORDER
On May 5, 1964, Trial Examiner Howard Myers issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. Thereafter,
the Respondent filed exceptions to the Trial Examiner's Decision and
supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman McCul-
loch and Members Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner
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 brief, and the entire record
in this case, and hereby adopts the findings,' conclusions,2 and recom-
mendations of the Trial Examiner.
1 The Trial Examiner inadvertently found that on July 22, 1963, the Respondent com-
menced the operation of cleaning the culverts, and that day watari Kuwada, the State
inspector visited the Lower Kula Road project. The cleaning operation and Kuwada's
visit were both on July 23, 1963. The Trial Examiner also found that the compressor
used on the cleaning job was a 600-pound-pressure-per-cubic-foot compressor. The com-
pressor generated 600 cubic feet of air per minute. We correct the Decision accordingly.
However, neither modification affects our finding herein.
2 We do not adopt the conclusion that the working conditions of Michael Crawford
were "abnormally dangerous" wthin the meaning of Section 502 of the Act. Cf. Curtis
Mathes Manufacturing Company, 145 NLRB 473. We do concur, however, in the
Trial Examiner's conclusion that the Crawfords were engaged in protected concerted
activity and that their discharge was violative of Section 8(a) (1) of the Act.
149 NLRB No. 140.