Teamsters & Truck Drivers Local No. 631

National Labor Relations Board - Board Decisions

Sep 26, 1974

213 N.L.R.B. 600 (N.L.R.B. 1974)

600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters & Truck Drivers Local No. 631, Interna-
tional Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America (Associated
Freight Lines) and Billy F . Stephens and Cecil W.
Hardin . Cases 31-CB-1417 and 31-CB-1419
September 26, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On May 13, 1974, Administrative Law Judge Louis
S. Penfield issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
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 the light of the exceptions and
brief and has decided to affirm the Administrative
Law Judge's rulings, findings, and conclusions' and
to adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified,
and hereby orders that Respondent, Teamsters &
Truck Drivers Local No. 631, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Las Vegas, Nevada, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order, as modified
below:
1. Insert the following as paragraph 2(c) and relet-
ter the existing paragraph 2(c) and succeeding para-
graphs accordingly:
"(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all "out of work" lists and referral records and any
other documents or records showing job referrals and
the basis for such referrals, and all other records nec-
essary to analyze the amount of backpay due and the
right to referral to jobs under the terms of this Order."
1 In its exceptions, Respondent raises various issues with respect to the
dates its liability for backpay should terminate . In our opinion, these issues
can best be resolved at the compliance stage of these proceedings.
DECISION
STATEMENT OF THE CASE
Louis S. PENFIELD, Administrative Law Judge: These
cases were heard before me in Las Vegas, Nevada, on
March 19, 1974. The consolidated complaint was based on
charges filed by Billy F. Stephens on December 3, 1973, and
by Cecil W. Hardin, on December 6, 1973. The consolidated
complaint which issued on February 7, 1974, alleges viola-
tions of Section 8(b)(2) and (1)(A) of the Act by Teamsters
& Truck Drivers Local No. 631, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called Respondent.
All parties were given full opportunity to participate in
the hearing, and after the close thereof, the Respondent and
the General Counsel each filed a memorandum brief in
support of its respective position.
Upon the entire record in this consolidated proceeding,
and upon my observation of the witnesses and their de-
meanor, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent currently has collective-bargaining agree-
ments with various employers in the southern Nevada area
who are engaged in the construction and freight industries.
One of such contracts covers Associated Freight Lines,
herein called Associated, which annually transports goods
valued in excess of $50,000 from points outside the State of
Nevada to points within that state. Another such contract
covers Reynolds Electrical and Engineering Co., Inc., here-
in called Reynolds which annually purchases and receives
goods valued in excess of $50,000 directly from points out-
side the State of Nevada. A third contract is with Associated
General Contractors whose members are engaged in the
construction industry in the State of Nevada, and such em-
ployer members collectively purchase and receive goods
valued in excess of $50,000 directly from outside the State
of Nevada. Under the circumstances, I find employers with
whom Respondent has collective-bargaining agreements to
be engaged in businesses which affect commerce within the
meaning of the Act, and assertion of jurisdiction over Re-
spondent to be appropriate.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
It is established that at all times material Respondent's
relevant collective-bargaining agreements provided that the
employers should "hire" all employees by using an exclusive
job-referral system maintained by Respondent. It is alleged
that such system has functioned in a discriminatory manner
with preference in referral given to union members, and that
213 NLRB No. 91
TEAMSTERS & TRUCK DRIVERS LOCAL NO. 631 601
this resulted in specific acts of unlawful discrimination
against both Billy F. Stephens and Cecil W. Hardin, the
Charging Parties. Respondent does not deny that union
members received preference in referral at one time, or that
Stephens and Hardin were discriminated against as a result
thereof. It claims, however, that the discriminatory practice
has been changed to a lawful one, and it disputes the back-
pay periods which the General Counsel claims are appropri-
ate for the past discrimination against Stephens and Hardin.
The facts as developed at the hearing are substantially
undisputed and disclose the following:
(1) At least during the period between June 1973 and
January 1974, it was Respondent's practice to maintain out-
of-work lists for union members. One covered construction
industry drivers, and the other covered other types of driv-
ers. These lists were kept in the form of cards upon which
appeared an individual's qualifications, as well as notations
relating to his job referrals. Dispatch took place in the order
in which the cards had been received. If an individual were
available in the hall when called, he would be sent out. In
some instances when no one in the hall was available, at-
tempts would be made to reach individuals by telephone. It
stands undisputed, however, that these out-of-work lists in-
cluded only union members. Nonmembers could, if they
chose, sign a separate out-of-work list from which they
would be dispatched only after it appeared that no union
members were available for a job.
(2) The Charging Party, Billy F. Stephens, at some point
had paid initial fees to Respondent as the first step toward
becoming a union member. This had resulted in his being
issued a card and placed on the out-of-work list for the
construction industry. In late August 1973, Stephens at-
tempted to pay up the balance of the fees which he owed
Respondent. He was told, however, that his payment was
late, that the sum earlier paid was now forfeited, and that
he no longer had membership status . Normal practice
would have resulted in Stephens' card being pulled from the
members' out-of-work list at that time. For some reason,
however, it was not, and on September 5 when the dispatch-
er received a request for a driver on a Reynolds construction
job, Stephens was called on the telephone. However, when
Stephens came to the hall to obtain a disptach slip, the
dispatcher inquired as to his union-dues status. When upon
inquiry it developed that Stephens' former union status had
been forfeited, the dispatcher refused to send him to the
Reynolds job since there were union members on the out-of-
work list available. Although earlier Stephens had signed on
the nonmember out-of-work list, after this he made no fur-
ther attempt to re-register. For some reason, however, Ste-
phens' card was not immediately pulled from the members'
list, and on or about September 17, Stephens was again
telephoned by the dispatcher but he was not reached direct-
ly. Immediately following this, Stephens' card was pulled
from the out-of-work list altogether. On or about January
22, 1974, however, Respondent, apparently in an attempt to
bring about some change in its discriminatory dispatching
practices, reinstated Stephens' card to what had formerly
been an exclusive union member out-of-work list. Thereaf-
ter the dispatcher called Stephens several times by tele-
phone regarding jobs, but it does not appear that he reached
Stephens. Nor is it shown that at any time following this
date Stephens was told that with regard to jobs in the future
his membership status was no longer an issue.
(3) Cecil W. Hardin was not a member of the Union. On
or about August 17 or 18 the terminal manager for Associat-
ed called the dispatcher and asked that Hardin be referred
to a job at Associated. When Hardin went to the union hall,
he was told by the dispatcher that since he was not a mem-
ber, he could not be sent out. A union member thereupon
dispatched to the Associated job is still in the employ of
Associated. Subsequently Hardin did obtain employment
with Associated for a short period in mid-November. While
working at that time he was told by Evan Tanner,
Respondent's president, that he must be a union member if
he was to continue working for Associated. This appears to
have had no effect on the particular short-term job on which
Hardin had been working. On December 4, however, Asso-
ciated once again requested that Hardin be dispatched. The
dispatcher, however, again refused dispatch because Hardin
was not a union member. The dispatcher again explained to
Hardin that he could only be dispatched when all members
were working. On January 7, 1974, counsel for Respondent
notified Hardin by telegram that Respondent had "no ob-
jection to [his] being employed by Associated Freight
Lines." On the same date , counsel also sent a telegram to
Associated advising it that Respondent had no objection to
its employing Hardin.
Discussion and Conclusions
The foregoing establishes without dispute that in operat-
ing its exclusive hiring hall, Respondent for a time was
following a referral practice whereby union members were
accorded preference in dispatch. That maintaining such a
practice causes unlawful discrimination in employment is so
well established that it merits no further discussion. In Janu-
ary 1974, Respondent appears to have undertaken some
effort to change such proscribed practice at least insofar as
Stephens and Hardin were concerned. This is evidenced by
the telegrams to Hardin and Associated, and by the rein-
statement of Stephens' card in the construction industry
out-of-work list. It has not been shown, however, that the
earlier unlawful discriminatory practices presumably fol-
lowed in job referrals generally were abandoned altogether,
or that any appropriate notice to that effect was sent either
to employers involved or to the drivers who might be affect-
ed by such practices. Under the circumstances, I find there
to be continued maintenance of a hiring hall referral prac-
tice which favors union members, that this leads to discrimi-
natory job referrals, and is conduct violative of Section
8(b)(2) of the Act. I further find that maintenance of such
practice constitutes restraint and coercion within the mean-
ing of Section 8(b)(1)(A) of the Act. Contrary to the claim
of Respondent I further find that such unfair labor practices
can only be remedied by the issuance of an appropriate
cease-and-desist order, and by the posting of appropriate
notices.
Stephens admittedly was not dispatched to the Reynolds
job on September 5 because he was not a union member in
good standing. It is not claimed that this came about as a
result of the application of a lawful union-security contract.
On the contrary, clearly it resulted from an application of
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's unlawful union-referral practices. On Sep-
tember 5 Respondent served notice on Stephens that hence-
forth he would not be dispatched until all union members
had been sent out unless he found means to reinstate his
own union membership. Although Stephens' card was mis-
takenly left on the union out-of-work list until September
17, any later call for a job presumably would have ended as
the September 5 call had when Stephens sought a dispatch
slip. Respondent's claim that Stephens' backpay should be
cut off on September 5 because he failed to re-register on
the nonmembers' out-of-work list must be rejected. Ste-
phens can scarcely be penalized for not using a nonmember
out-of-work list which existed solely to implement
Respondent's discriminatory referral practices. The appar-
ent reinstatement of Stephens' card on January 22, 1974, to
the membership out-of-work list signifies some effort by
Respondent to remedy past discriminatory referral practic-
es at least insofar as Stephens was concerned. While
Respondent's records show that Stephens was called for
jobs a few times following this date, Respondent did not
reach him directly, and it does not appear that Stephens was
ever told affirmatively that henceforth he would be dis-
patched whether or not he was a member in good standing.
In view of Stephens' September 5 experience regarding a
dispatch slip to the Reynolds job, the mere unilateral return
of his card to the out-of-work list hardly seems adequate to
establish a cutoff. Under the circumstances I am convinced
and find that Respondent' s initial refusal to dispatch Ste-
phens was violative of Section 8(b)(2), that the remedy
should not only include reinstatement to a nondiscriminato-
ry out-of-work list, but also that he should be made whole
for the period from the first unlawful refusal to dispatch
until such time as Stephens has been affirmatively notified
all future referrals will follow a nondiscriminatory pattern
unrelated to his membership in good standing in Respon-
dent.
Respondent refused to dispatch Hardin to a job at Asso-
ciated on August 17 or 18. A union member was sent out
to the same job and is still working at Associated. Admitted-
ly this refusal came about because of Respondent's discrim-
inatory referral practices. The statement of Tanner to
Hardin in mid-November and the subsequent refusal of the
dispatcher to send him out to still another job at Associated
on December 4 confirm the fact that by that time Respon-
dent was still following the same discriminatory referral
practices. Accordingly, I find such refusals to dispatch un-
lawful within the meaning of Section 8(b)(2) of the Act.
Respondent did, however, notify Hardin and Associated on
January 7, 1974, that any previous objections made to his
employment were now lifted. While Respondent does not
dispute its initial unlawful conduct regarding Hardin, it
asserts that any backpay liability for such conduct should
be cut off by January 7. However, the man sent out in place
of Hardin in August is still working for Associated. Thus
Respondent's withdrawal of its initial unlawful objections
to Hardin's employment does not insure him of a job even
after January 7. Under the circumstances Respondent
should not be relieved of all further backpay liability after
January 7, until such time as it is established that an equiva-
lent job is available either at Associated or elsewhere for
which Hardin qualifies.
IV. THE REMEDY
Having found that Respondent has engaged in conduct
violative of Section 8(b)(1)(A) and (2) of the Act, I shall
recommend that it cease and desist therefrom, and take
certain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent's referral practices caused
discrimination in the employment of Billy F. Stephens and
Cecil W. Hardin in a manner violative of Section 8(b)(1)(A)
and (2) of the Act, I shall recommend that Respondent
place each on an out-of-work list established and main-
tained without relation to membership or nonmembership
in Respondent, and that it make each employee whole for
any loss of pay he may have suffered from the date of his
respective refusal to dispatch until the date on which such
conduct has been obviated in the manner set forth in the
preceding section. The backpay obligation will include in-
terest at the rate of 6 percent per annum, with loss of pay
and the interest to be computed in the manner prescribed
by the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the basis of the foregoing findings of fact, and upon
the entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
2. By maintaining an exclusive hiring hall practice by
which union members were given preference in dispatch for
jobs, Respondent engaged in conduct violative of Section
8(b)(2) and (1)(A) of the Act.
3. By refusing to dispatch Billy F. Stephens and Cecil W.
Hardin to jobs at Reynolds and Associated, respectively,
Respondent caused discrimination against each in a manner
violative of Section 8(b)(2) and (1)(A) of the Act.
4. The aforesaid violations are unfair labor practices af-
fecting commerce within the meaning of Section 2(6) and
(7) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDERI
Respondent, its officers, agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Maintaining and giving effect to any dispatching
practice whereby union members are given preference over
nonmembers in dispatching to jobs covered by collective-
1 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.
TEAMSTERS & TRUCK DRIVERS LOCAL NO. 631
bargaining agreements whereby Respondent is granted ex-
clusive job-referral rights, except to the extent such may be
authorized by the provisions of Section 8(a)(3) of the Act.
(b) Refusing to dispatch Billy F. Stephens and Cecil W.
Hardin, or any other person, because of his membership or
nonmembership in Respondent or, any other labor organi-
zation, except to the extent such might be authorized by
Section 8(a)(3) of the Act.
(c) In any like or related manner interfering with, re-
straining or coercing any employee in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which I find will
effectuate the policies of the Act:
(a) Place the names of Billy F. Stephens and Cecil W.
Hardin on appropriate out-of-work lists maintained in a
nondiscriminatory manner unrelated to membership or
nonmembership.
(b) Make whole Billy F. Stephens and Cecil W. Hardin
for losses incurred resulting from Respondent's unlawful
conduct in the manner set forth above.
(c) Post in conspicuous places, including places where
notices to members are customarily posted, at its usual
membership meeting place, copies of the attached notice
and marked "Appendix." 2 Copies of said notice to be fur-
nished by the Regional Director for Region 31, shall, after
being signed by a duly authorized representative of Respon-
dent, be posted by it immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days
thereafter. Reasonable steps shall be taken by Respondent
to insure that said posted notices are not altered, defaced,
or covered by any other material.
(d) Send signed copies of the aforesaid notice to the Re-
gional Director for Region 31 for posting by Associated or
Reynolds or other employers covered by collective-bargain-
ing contracts granting exclusive job-referral rights, if they so
choose, in places where notices to their employees are cus-
tomarily posted.
(e) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this order, what steps
Respondent has taken to comply herewith.
2 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."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
603
WE WILL NOT maintain or give effect to any dispatch-
ing practice whereby union members are given prefer-
ence over nonmembers in dispatching to jobs covered
by collective bargaining agreements whereby we are
granted exclusive job referral rights, except to the ex-
tent that such may be authorized by the provisions of
Section 8(a)(3) of the National Labor Relations Act.
WE WILL NOT refuse to dispatch Billy F. Stephens or
Cecil W. Hardin to any job for which he may be quali-
fied because of his membership or nonmembership in
this or any other labor organization, and we will make
each whole for any losses he may have suffered as a
result of any discrimination against him which has
come about from our job referral practices.
WE WILL NOT in any like or related manner, interfere
with the rights of employees guaranteed by Section 7
of the Act.
Dated By
TEAMSTERS & TRUCK DRIVERS
LocAL No. 631, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Federal Building, Room 12100,
11000 Wilshire Blvd., Los Angeles, California 90024, Tele-
phone 213-824-7351.