Truck Drivers, Local No. 705

National Labor Relations Board - Board Decisions

Jan 16, 1976

222 N.L.R.B. 335 (N.L.R.B. 1976)

TRUCK DRIVERS, LOCAL NO. 705 335
Truck Drivers, Oil Drivers, Filling Station and Plat-
form Workers' Union, Local No. 705 affiliated with
the International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America (Ex-
cel Transportation Service Co.) and Anthony J.
DeVitto. Case 13-CB-5938
January 16, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
The Administrative Law Judge made the following inadvertent errors
which in no way affect his decision or our adoption thereof. In the first
sentence of the fifth paragraph of sec. 2(b) of his Decision, the Administra-
tive Law Judge states that DeVitto went to see Chicago Independent Presi-
dent Keegan after recovering from his injury rather than before recovery. In
the second sentence of the last paragraph of sec 2 (b), of his Decision, the
Administrative Law Judge refers to Fred Mandel as Fred Karzen. Finally,
in the first sentence of the sixth paragraph of sec. 2 (b) of'his Decision the
Administrative Law Judge stated that Roberts phoned DeVitto on June 8,
1975, rather than on June 8, 1971.
APPENDIX
On October 10, 1975, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in support of the Administrative Law
Judge's Decision.
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.
ORDER
Pursuant to Section 10(c) of the, National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
herein and hereby orders that the Respondent, Truck
Drivers, Oil Drivers, Filling Station and Platform
Workers' Union, Local No. 705 affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order, as so modi-
fied:
1. Substitute the following for paragraph 1(b):
"(b) In any other manner restraining or coercing
employees in the exercise of rights guaranteed by
Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
i The Respondent excepts to certain credibility findings made by the Ad-
ministrative Law Judge . Itns the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (C A. 3, 1951 ) We have carefully examined the
record and find no basis for reversing his findings.
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The hearing held in Chicago, Illinois, on August 6
and 7, 1975, in which we participated and had a
chance to give evidence, resulted in a decision that
we had committed certain unfair labor practices in
violation of Section 8(b)(1)(A) and 8(b)(2) of the Na-
tional Labor Relations Act, and this notice is posted
pursuant to that Decision.
The National Labor Relations Act gives all em-
ployees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities.
In recognition of these rights, we hereby notify
our members that:
WE WILL NOT cause Excel Transportation Ser-
vice Co. to lay off Anthony DeVitto in violation
of Section 8(a)(3) of the Act.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of rights guar-
anteed by the Act.
WE WILL notify Excel Transportation Service
Co. in writing that we have no abjection to the
continued employment of Anthony DeVitto.
WE WILL make Anthony DeVitto whole for
any loss of pay and benefits suffered because of
the discrimination against him.
TRUCK DRIVERS, OIL DRIVERS, FILLING
STATION AND PLATFORM WORKERS' UNION,
LOCAL No. 705 AFFILIATED WITH THE
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA
222 NLRB No. 48
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: Upon a
charge filed by the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 13
filed on March 27, 1975, and a complaint issued on May
23, 1975, against the above-named labor Union, Respon-
dent herein, alleging that Respondent had engaged in un-
fair 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, by terminating the em-
ployment of the Charging Party because of his lack of
membership in the Respondent. Respondent filed an an-
swer denying the commission of the alleged unfair labor
practices. A hearing was held in Chicago, Illinois, on Au-
gust 6 and 7, 1975.'
Upon the entire record in the case and from my observa-
tion of the demeanor of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
I. JURISDICTION
Excel Transportation Service Co. (herein called the Em-
ployer) is a corporation duly organized under and existing
by virtue of the laws of the State of Illinois.
The Employer, at all times material herein, has main-
tained an office and principal place of business at 2300
Estes, Elk Grove Village, Illinois, where it is engaged in
trucking operations.
During the calendar or fiscal year the Employer, in the
course and conduct of its business operations, which con-
stitute an essential link in the chain of interstate commerce,
perform services valued in excess of $50,000 for enterprises
directly engaged in interstate commerce which annually
shipped goods valued in excess of $50,000 directly to points
located in States other than the State where they are locat-
ed.
Respondent admits that it is engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act and it is
so found. The Union is a labor organization within the
meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background
In order to understand the various intrafamily relation-
ships of the various companies whose names might other-
wise be confusing the General Counsel has succinctly set
forth the following facts:
I. Karzen and his four children, either separately,
jointly or in various combinations, own several enter-
prises connected with the trucking industry. I. Karzen
is the sole shareholder of I. Karzen Trucking Co., Inc.
' Briefs were filed by the parties which have been duly considered
(hereinafter referred to as Karzen Trucking), and the
officers consist of himself, his wife and two of his chil-
dren. Excel Transportation Service Co. (hereinafter re-
ferred to as Excel) is solely owned by Caryly Karzen
Mandel, daughter of I. Karzen, and the officers of said
corporation consist of Mrs. Mandel and her husband,
Fred. Both Karzen Trucking and Excel have rented
equipment from Apex Rental, which is owned by the
four children of I. Karzen, which is located in the
same building as Karzen Trucking on North Kedzie in
Chicago, but also located on Busse Road in Elk Grove
Village, where Karzen GMC Trucks Inc., a GMC
dealership is located. Moreover, the building which
contains the operating office of Excel in Elk Grove
Village is owned by Laflin Investing Co., whose share-
holders are the four children of I. Karzen.
Because of the familial ties between the above men-
tioned enterprises, Excel utilizes the services of these
firms. As already mentioned, Excel rents its office
space from Laflin Investment Co. It leases approxi-
mately 50 percent of its tractors from Apex Rental.
Although it maintains its own time sheets and person-
nel records, it rents the services of Karzen Trucking's
computer for its payroll. Driver applicants for employ-
ment at Excel are sent to Apex Rental for qualifying
tests. Overflow work for both Excel and Karzen
Trucking may be picked up by the other corporation.
Anthony DeVitto started to work as a truckdriver for
Excel on June 9, 1971. He filled out his application for
employment and was hired by Excel's terminal manager
and dispatcher, Bob Roberts. For the first 3 weeks of his
employment, he did general work which consisted of pick-
ing up loads of materials and 'delivering it to a designated
consignee. Thereafter Roberts sent him to work as a driver
to the Mead Container Corporation located in Bridgeview,
Illinois, where he was employed steadily for 3-1/2 years.
He had the status of working for a steady house .2
B. The Facts
Anthony J. DeVitto began working as a truckdriver for
Excel on June 9, 1971. He had been a member of the Chi-
cago Independent Union for approximately 5 years. At the
time he was hired by Excel he had been out of steady
employment for about 6 months. During this time he had
been working on an intermittent basis and received this
employment out of the hiring hall of the said Chicago In-
dependent Union.
DeVitto suffered a job connected injury while regularly
employed by Excel on December 11, 1974, and he re-
mained out of work until April 14, 1975. He was originally
employed by Excel as the result of a conversation he had
with,a next door neighbor named Stevens, who was em-
ployed by Excel and told DeVitto that Excel was hiring
steady drivers. Based on this news he reported to Excel and
2 A "steady house" is a carrier's customer who requires the services of a
truck and driver on a permanent basis to transport the customer's goods
The driver reports to the "steady house," rather than to the employer's
terminal each day and the tractors and trailers are garaged at the "steady
house." The Local 705 and the CTDU (Chicago Truck Drivers Union-
Independent) contracts recognize the special status of a "steady house."
TRUCK DRIVERS, LOCAL NO. 705 337
was interviewed by Robert Roberts who is the terminal
manager and dispatcher for Excel. After initially doing
trucking work for Excel for about 3 weeks he was assigned
to be a "steady driver" for the Mead Container Corpora-
tion whose plant is located at Bridgeview, Illinois. The de-
scription of a "steady house" appears in footnote 2, supra.
DeVitto remained for 3-1/2 years as a steady driver for
Mead. In this capacity his responsibility was to report on a
daily basis at the Mead company and during this time he
had few occasions to report to the Excel place of business.
Excel has a union-security contract with Local 705 IBT.
During his entire period of employment up to the date of
his injury DeVitto remained a member of the Chicago In-
dependent Union. The fact of DeVitto's membership in the
Independent was known to Roberts who, early in De-
Vitto's employment, suggested that DeVitto transfer his
union membership from the Independent to Local 705.
Parenthetically it should be noted that Respondent's coun-
sel explained on the record that there is no relationship
between 705 and the Independent which is a large Chicago
Union. The contracts in the trucking industry in Chicago
among companies and the two unions are identical as to
their major provisions except for some slight variations as
to the health, welfare, and pension benefits. It is clear from
the record that all of the regular drivers for Excel were
members of Local 705. Neither Roberts nor DeVitto pur-
sued the matter of DeVitto's transfer to Local 705 and this
situation continued for 3-1/2 years.
During this time DeVitto was regularly paid for his serv-
ices with Excel checks. He did not ever sign a dues-deduc-
tion form in favor of Local 705 and, in fact, his health,
welfare, and pension payments were regularly made to the
Chicago Independent by the Karzen company. DeVitto
testified that during the 3-1/2 years of his employment as a
steady driver for Mead he and his family had numerous
illnesses all of which were paid for under the terms and
conditions of the Independent's health and welfare obliga-
tions to its members. It should be noted that the Karzen
Company has a union-security contract with the Indepen-
dent Union and has no relationship with Local 705.
From time to time, when DeVitto did have occasion to
visit the Excel office, he saw his name on Excel's seniority
roster at slot number 16. As will be explained infra his
name remained on Excel's seniority rosters until some time
in April 1975.
After recovering from his injury and having been dis-
charged by his doctor DeVitto phoned Roberts requesting
that he be returned to his job.'He went to see Roberts who
told him that he should promptly transfer from the Inde-
pendent to Local 705. Pursuant to this suggestion DeVitto,
accompanied by his wife, called on Barney Keegan, presi-
dent of Independent Union. DeVitto explained that he had
been steadily employed by Excel, one of whose steady
houses is the Mead Company, but that he now wanted to
transfer to Local 705. Keegan told him not to transfer until
705 agreed to accept him.
Going back in the record to recapitulate the facts, Rob-
erts phoned DeVitto on June 8, 1975, and told him to take
a driving test to see if he could handle a tractor trailer and
to take this test at the Karzen- garage. DeVitto passed the
test and reported to Roberts at Excel. DeVitto was hired
and went to work on June 9 for Excel. About 2 weeks later
Roberts asked DeVitto about the Union. DeVitto said he
was in the Chicago Independent Union. Roberts said,
"Well you probably have to transfer to Local 705," De-
Vitto said, "Okay, but I want to wait for 30 days in order to
make up my mind whether I want to continue to work for
Karzen," which had in the meantime hired DeVitto as a
driver.
At the time of the visit of the DeVittos to Keegan, Kee-
gan phoned 705 to find out whom DeVitto should see. De-
Vitto was told to see Joe Desmyter, who is Local 705's
representative in charge of the Excel -drivers. Desmyter
phoned Roberts at Excel while DeVitto was in the office of
705 and told him (Roberts) that DeVitto was requesting a
transfer to 705 from the Chicago Independent.
Roberts testified that he told Desmyter that DeVitto had
worked for Excel as a truckdriver since June 9, 1971. Rob-
erts told Desmyter he could not explain how it came about
that DeVitto worked for Excel for 3-1/2 years while he was
a member of the Independent notwithstanding the fact that
Excel had no contract with the Independent, but in fact
had a union-security contract with Local 705. Roberts
went on to say that DeVitto's name had somehow gotten
lost in the shuffle. In reply to, this information Roberts
testified that Desmyter said: "Well he no longer can work
for you because he does not belong to 705. He said, You
have a lot of men laid off too." Later in the same conversa-
tion Roberts was asked by the General Counsel:
Q. Did-in this conversation did Desmyter ask you
to do or tell you to do something?
A. Yes, he told me that I can no longer hire him
JUDGE SEFF: Keep him in your employ?
THE WITNESS: That's correct.
Roberts went on to say that he reported his conversation
with Desmyter to Fred Mandel, vice president of Excel,
and told Mandel, Desmyter said, "we could no longer use
or employ DeVitto as one of our drivers." Mandel replied,
"if that's the case we can't use him."
Later in his testimony Roberts said Excel removed De-
Vitto's name from the Excel seniority roster as the result of
Roberts' talk with Desmyter and Mandel's instruction.
The specificity of Desmyter's instruction to Roberts is
borne. out by the following recital by Roberts of his conver-
sation with Desmyter. The record continued:
Q. Then Desmyter got on the phone; is that cor-
rect?
A. Yes.
Q. And what did he say?
A. Well, he told me Mr. DeVitto was there and he
had wanted to make a change and get into 705. And
Mr. Desmyter asked me how long he had been work-
ing there, and I told him, and he said, "You know, he
said, "this man is-belongs to the Chicago local and
he can't work for you when he belongs to the Chicago
local." And the outcome of it was that he told me that
I could not put him back to work.
There then follows a question addressed to Roberts asking
him if he recalled that Desmyter told him (Roberts) that
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DeVitto was a Karzen employee on loan to Mead . Roberts
flatly denied that Desmyter made such a statement and he
was equally emphatic in denying that he (Roberts) had
made such a statement to Desmyter.
In the course of cross-examination by Respondent's
Counsel the following exchange took place:
Q. Now, in June of 1971, it is not a fact that the
Chicago Independent Union sent you to Karzen
Trucking Company?
A. No sir.
Q. Can you tell me how you got to Excel in Elk
Grove Village?
A. A neighbor of mine, lives two doors away works
for Excel Transportation.
Q. And who is that?
A. Stevens . Joseph Stevens.
Q. And it was after the conversation with Mr. Ste-
vens that you went to Excel?
A. Yes, sir.
To further bolster the fact that DeVitto was in fact an
employee of Excel and not Karzen during the period in
question, Respondent showed DeVitto an application for
employment. This application, which is identified in the
record as Respondent's Exhibit 4(a) and 4(b), consists of
two pages, the second page of which represents a photoco-
py of what appears on the back of the application blank.
DeVitto testified that he filled out the application in his
own handwriting which he identified as being the first page
of the exhibit. It is an application for employment at Excel
Transportation Company. The word "Excel" appears in
the upper righthand corner of the document . DeVitto testi-
fied that this word was not in his handwriting , Roberts
testified that he wrote the name "Excel" and also made all
the notations which appear on the reverse side of the appli-
cation.
As has been previously noted, on or about June 8, 1971,
Roberts called DeVitto and sent him to Apex Rental on
North Kedzie in Chicago to have a driving test taken under
the direction of Odell Fauk, a Karzen Trucking employee.
DeVitto passed the test and was immediately employed by
Excel. Roberts told DeVitto he would have to transfer his
union membership to Local 705. DeVitto told Roberts he
understood that, but he had 30 days to decide whether he
wanted to transfer or not as he wanted to wait to determine
if he liked the job at Excel. There were no further conversa-
tions about DeVitto's membership in a union thereafter.
DeVitto never did transfer his membership to Local 705,
but continued throughout his employment with Excel to be
a member of the Chicago Independent Union.
The General Counsel points out in his brief that at the
time of his employment with Excel, DeVitto had his union
dues paid through the end of that year. The first time dues
were deducted from his paycheck was in January 1972. It
was not until February 1975 that DeVitto learned his wel-
fare , health, and pension contributions were being made to
Chicago Independent on his behalf by Karzen Trucking,
whose drivers are represented by the Chicago Independent
Union.
General Counsel 's brief continues:
Although the facts are blurred by time, it appears that
someone at Excel called up Richard Karzen , Treasur-
er of Karzen Trucking, and asked that Karzen Truck-
ing pay the health , welfare and pension contributions
to Chicago Independent on DeVitto 's behalf . Karzen
agreed to do it so long as the matter was straightened
out later. `Once the contributions began being made by
Karzen Trucking, no further conversations about it
were ever held. The matter never came again to light
until after the-discharge of DeVitto in Feburary, 1975.
Mandel, Vice President of Excel, never knew that
Karzen was making payments to Chicago Indepen-
dent on behalf of DeVitto until February, 1975.
As has been noted earlier in the instant Decision Des-
myter called Roberts on the phone and said , "I've got a
man in my office by the name of DeVitto . He claims he's
been working there for three and one-half years. What
about it?" Roberts replied that DeVitto did work for Excel
and had been so employed since 1971. Desmyter then told
Roberts that DeVitto did not belong there and he should
be taken off the seniority roster because he was not a mem-
ber of Local 705 and "He cannot work for you." Desmyter
also told Roberts he could not put DeVitto back to work,
and he could not keep him in Excel 's employ.
According to Respondent 's counsel , Desmyter insisted
that DeVitto was a Karzen Trucking employee. He further
said there was nothing he could do because Respondent
Union did not know that DeVitto was working for Excel.
He then added that he would not recognize DeVitto as ever
being an employee of Excel and the only way DeVitto
could work at Excel was if all laid -off men at Excel were
recalled to work, and then DeVitto could be hired as a new
employee with no seniority , and that upon hearing this,
DeVitto and his wife left the hall.
Respondent in its brief questions the credibility of Rob-
erts. Respondent 's counsel further claims Desmyter alleg-
edly said that Roberts told him that DeVitto had, all along,
had been an employee of Karzen. This was flatly refuted
by Roberts , the seniority rosters received in evidence, De-
Vitto, and Fred Karzen . I was impressed with Roberts' de-
meanor on the stand and am persuaded that he told the
story truthfully as the events unfolded. Furthermore, it
should especially be noted that Desmyter was not offered
by Respondent as its witness although the bulk of the testi-
mony involved DeVitto, Roberts, and Desmyter. Beyond
this fact there is the further , clincher to be found in the
undisputed testimony of Vice President Fred Karzen, who,
upon being informed that Desmyter insisted that DeVitto's
name be removed from Excel's , seniority roster and not be
reemployed by Excel, told Roberts to follow Desmyter's
instructions. It strains credulity for Karzen to have given
these instructions to Roberts unless DeVitto had been em-
ployed by Excel as Roberts had testified.
Concluding Findings and Analysis
Respondent seeks to make much of the fact that Des-
myter did not use the word "discharge or" layoff in his
remarks to Roberts about DeVitto. Without indulging in
semantic niceties it is overwhelmingly borne out in the rec-
TRUCK DRIVERS, LOCAL NO. 705 339
ord that Desmyter instructed Roberts not to reemploy De-
Vitto, to remove his name from the seniority roster, and to
dispense with his services. In simple English this adds up to
"discharge." Bluntly, Desmyter' s language is clear and un-
ambiguous. He ordered Excel to terminate DeVitto's em-
ployment because he was not a member of 705, and 705
had a number of its members in layoff status. DeVitto was
not to be continued on the job unless and until all 705's
men had been rehired. Even then, if he was restored to
Excel's employment, it had to be as a new employee and
without seniority.
Respondent also makes the argument that by taking De-
Vitto as a rehire the effect of such action would be to do
violence to the integrity of Local 705's bargaining unit.
This argument is rendered, nugatory because it is admitted
on the record that the work of driving a truck performed
by DeVitto is identical with the work being performed by
the drivers who are members of 705 and within the ambit
of 705's bargaining unit. Respondent's further argument
that just so long as Desmyter had a colorable belief that his
actions were not motivated by the fact that DeVitto was
not a member of IBT's Local 705 his actions were not vio-
lative of the Act. Respondent's brief then quotes from Ce-
dar Rapids Block Company, Inc. v. N.L.R.B., 332 F.2d 880,
886 (C.A. 8, 1964), placing particular emphasis on that part
of the language of that case which states: "A good faith
belief, even if it turns out in fact to be incorrect, can be
sufficient to refute a charge of unlawful discharge."
Respondent's reliance on Cedar Rapids is both misplaced
and inapposite. This is so because the facts of the instant
case and those of Cedar Rapids are not analagous.
Much more to the point and on all fours with the case at
bar is the decision of Administrative Law Judge Richard J.
Boyce in the case of Truck Drivers, Oil Drivers, Filling Sta-
tion and Platform Workers Union Local 705, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Randolph Paper
Company),3 which involves the identical union in a case
that arose in Chicago and where the facts are identical with
those in the instant case. In that case, one Frank Byers had
been a member of the Chicago Independent Union and
was employed by Randolph doing identical work as his
fellow employees who were members of 705 with which
union Randolph had a union-security contract.
Shortly after Byers' hire by the company, company offi-
cials raised with him the possibility that he might have to
shift his membership to Local 705. Byers responded that he
did not wish to take such action because he had too much
time in Chicago's Independent retirement plan to abandon
his membership in that union. The company did not press
the issue and proceeded to remit health, welfare and pen-
sion and dues payments to Chicago Independent on behalf
of Byers. Byers never joined 705 and no payments were
made to this union by Randolph.
Matters remained in this posture until December 1974,
when business conditions caused the company to lay off
two drivers. Those selected, because least senior, were
Henry Bradtke and George Lee. They, along with all of the
3 221 NLRB No 37 (1975).
company's nine local delivery drivers except Byers, be-
longed to Local 705.
The thrust of Respondent's defense is summed up in the
Randolph case:
Byers did not become a member of the 705 unit ...
simply because he performed its work. Local 705
could lawfully claim that work for its unit members,
albeit to the seniority detriment of Byers, if it had a
good faith belief that its actions were proper.
In conclusion the Randolph Paper Company case makes two
salient points: One, that Byers' job in all respects was indis-
tinguishable from those concededly in the bargaining unit
represented by Respondent, that he was a member of that
unit as a matter of law and had been since his hire in 1967.
Second, Respondent's counsel makes the point that the
union representative acted on a good-faith belief that Byers
was not a unit member at the time of his layoff. This argu-
ment is identical with the position adumbrated by
Respondent's counsel in the instant case. The point is
stressed in the case at bar with pages of citations studded
with cases allegedly bearing on this point. Respondent's
counsel seeks to distinguish and reject this case on the
ground that Randolph was incorrectly decided because, in-
ter aha,
Here it is undisputed that Desmyter acted in good
faith based on the undenied statement by Roberts that
DeVitto was a Karzen Trucking employee and the ab-
sence of any evidence, of any evidence except De-
Vitto's word, that DeVitto was a 705 unit employee.
The evidence is otherwise. Not only did DeVitto repeatedly
state on the record that he was not a Karzen employee
during the period in question but the internal evidence and
the exhibits in the record consisting of his application for
employment (which unequivocally shows that DeVitto ap-
plied for work at Excel) but, in addition, the seniority lists
(accepted into the record as evidence) show that DeVitto
was carried on Excel's seniority roster up to the time in
April 1975 when this issue became the crux of the instant
case. Furthermore and decisive is the fact that Respondent
never presented Desmyter as its witness. Furthermore Rob-
erts testified, without refutation, that DeVitto was indeed
an employee of Excel. To say as Respondent has done in
its brief that "it is undisputed that Desmyter acted in good
faith based on the undenied statement that DeVitto was a
trucking employee of Karzen" is a distortion, not to say an
erroneous statement of the record.
In addition it should be noted that Respondent claims
DeVitto was under an affirmative duty to have denied in
his phone conversation with Roberts to notify 705 that he
was an employee of Karzen, not Excel. This is a totally
erroneous statement of the law. The answer to this question
is found in the brief of the General Counsel:
First, it is clear that the notice for the discharge was
Desmyter's desire to eliminate a nonunion employee
so that Respondent's members who ' were laid off,
would replace him and be recalled to work.
The record is crystal clear that Roberts testified that Des-
myter told Roberts to discharge DeVitto because he is not
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a member of 705. The General Counsel concludes from the
testimony in the record that: "In no manner can one inter-
pret that statement of Desmyter as being a declaration of
unit preservation as opposed to union membership preserva-
tion." In order to finally put to rest the question of integri-
ty of the unit Respondent laboriously sought to cast the
facts in such a guise that the issue in the instant case con-
cerns a serious question that Respondent was simply seek-
ing to "preserve the integrity of the Union's bargaining
unit." Once again the General Counsel in his brief points
out:
It is evident that DeVitto was a member of the bar-
gaining unit at Excel which was represented by Re-
spondent Union. There is no dispute that the other
drivers of Excel who worked at Mead Container were
members of Respondent Union's bargaining unit.
Why then should there be any dispute that DeVitto,
who did exactly the same work as they, was a member
of Respondent Union's bargaining unit. Clearly the
employer of all these drivers thought they were all a
part of the same unit since Excel's seniority lists, intro-
duced as Exhibits 6, 7, 8, 9 and 10, which covered the
period from December 1972 through April, 1975, con-
tained DeVitto's name during the period he was em-
ployed, as well as the names of all of its other drivers.
There is no dispute that Desmyter, as agent of Respondent
Union, on or about February 5, requested that Excel re-
move DeVitto's name from its seniority list and remove
him from its employment, requests with which Excel com-
plied.
In conclusion it is to be noted that when Desmyter in-
sisted that Excel remove DeVitto from its seniority list and
no longer employ him, Desmyter's motive in seeking De-
Vitto's discharge was necessarily an illegal one. In simple
language Desmyter sought the removal of DeVitto from
employment with Excel solely because he was not a mem-
ber of Respondent Union.
There remains only the question as to whose duty it was
to notify Respondent that DeVitto was in fact an employee
of Excel. The answer to this question is also provided by
the General Counsel's brief:
When a union requires a new employee to perfect
membership under a lawful union-security agreement,
it has the duty to notify the employee at some point, as
to what his "membership" obligations are. To permit a
union to lawfully request the discharge of an employee
for failure to meet his dues-paymg obligations where
the promises relating to such obligations are not dis-
closed to the employee, would be grossly inequitable
and contrary to the spirit of the Act. Philadelphia Sher-
aton Corporation, 136 NLRB 888.
Further, the case of Local 545, International Union of Oper-
ating Engineers, AFL-CIO (Joseph Saraceno & Sons, Inc.),
161 NLRB 1114, 1121, (1966) states:
... where the protection of an individual employee's
right to continued employment is to be balanced
against the statutorily restricted right of a union to
enforce a union-security agreement requiring member-
ship as a condition of employment, a union must show
that it has dealt fairly with the employee and given
him clear notice of what is required of him. Absent
such a demonstration the individual's rights must be
held paramount and protected.
The General Counsel's brief continues:
It was the obligation of Desmyter to inform DeVitto
what acts he had to perform and what duties he had to
incur in order to become a member of Respondent
Union, and give DeVitto the opportunity to perform
those acts and incur those duties before seeking his
discharge because of lack of union membership.
Respondent Union's fiduciary duty to inform De-
Vitto of the latter's obligations under the union-securi-
ty provisions of the collective bargaining agreement
existed independently from Excel's obligation, if there
was any. See Building Construction, Highway Pavers,
Sewer and Tunnel Workers Union Local No. 113, et al.,
167 NLRB 39 (1967).
In the case of International Union of Operating Engineers,
Local 18, AFL-CIO (William F. Murphy), 204 NLRB 681,
682 (1973), the Board held:
Thus, while the evidence proffered here might indeed
shows that the Union had no intent to encourage
union membership by interfering with Murphy's em-
ployment, yet the display of union power exhibited by
an exercise of control over employment opportunity
solely for reasons relating to the conduct of an em-
ployee as a union member would necessarily have that
effect. Since the Union's discrimination against Mur-
phy was, at best, related to his obligations as a union
member such action by the Union comes within the
proscription action of Section 8(b)(2).
I conclude and find that by causing the Company to lay
off and/or discharge DeVitto because of union member-
ship considerations, Respondent caused it to discriminate
against DeVitto in violation of Section 8(b)(2). Respon-
dent, by the same conduct, "restrained and coerced" De-
Vitto in violation of Section 8(b)(1)(A) of the Act.
By causing the Company to lay off DeVitto because of
union membership considerations, Respondent caused it to
discriminate against him in violation of Section 8(a)(3),
thereby itself violating Section 8(b)(2). Respondent by the
same conduct "restrained and coerced" DeVitto with Sec-
tion 8(b)(1)(A).
CONCLUSIONS OF LAW
1. By causing Excel Transportation Service Co. to dis-
criminate against Anthony DeVitto in violation of Section
8(a)(3) of the Act, as found herein, Respondent violated
Section 8(b)(2) and 8(b)(1)(A) of the Act.
2. The unfair labor practices affect commerce within
Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
TRUCK DRIVERS , LOCAL NO. 705 341
ORDER4
Respondent, Truck Drivers, Oil Drivers, Filling Station
and Platform Workers' Union, Local No. 705, affiliated
with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Causing Excel Transportation Service Co. to lay off
Anthony DeVitto in violation of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed by Section 7
of the Act.
2. Take the following affirmative action:
(a) Notify Excel Transportation Service Co., in writing,
that it has no objection to the continued employment of
Anthony DeVitto.
(b) Make Anthony DeVitto whole for any loss of pay
and benefits suffered because of the discrimination against
him, backpay to be computed in accordance with F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb-
4 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.
ing & Heating Co., 138 NLRB 716 (1962).
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all rec-
ords necessary for determination of the amounts owing un-
der the terms of this recommended Order.
(d) Post at its offices, meeting hall, and hiring halls, cop-
ies of the attached notice marked "Appendix." 5 Copies of
said notice, on forms provided by the Regional Director
for Region 13, after being signed by an authorized repre-
sentative of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken to ensure
that said notices are not altered, defaced, or covered by
any other material.
(e) Sign and forthwith return sufficient copies of said
notice to the Regional Director for Region 13 for posting
by Excel Transportation Service Co., that employer being
willing, at places where notices to employees customarily
are posted.
(f) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
5 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."