B. G. Costich & Sons, Inc.

B. G. (OSTI(CH & SONS. IN(C. B. G. Costich & Sons, Inc.: East End Moving & Stor- age, Inc.; Wm. J. Renner Carting Co., Inc.: and Service Storage. Inc. and New York State Team- sters Conference Pension and Retirement Fund and Chauffeurs, Teamsters and Helpers, Local Union No. 118, Party to the Contract. Cases 3 -CA 8453 4. 3 CA 8453-5, 3-CA 8453 8. and 3- CA 8453 Ii June 26, 1979 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MIMHBRS PNI I () AN) TRt ISI)AI 1 On March 23. 1979, Administrative Law Judge Da- vid S. Davidson issued the attached Decision in this proceeding. Thereafter. Respondents filed exceptions and a supporting brief:' and the General Counsel filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(h) of the National Labor Relations Act, as amended, the Na- tional abor 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 an(d brief's and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge. except that the remedy is modified to delete the provision lbr a fixed rate of interest on the retroactive pa1 ments to the Fund,2 and to adopt his recommended Order. 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 Or- der of the Administrative Law Judge and hereby or- ders that Respondents B. G. Costich & Sons. Inc.: East End Moving & Storage. Inc.: Wm. J. Renner Carting Co., Inc.: and Service Storage, Inc., Roches- ter, New York, their officers, agents, successors. and I As the record adequatels presents the positions of the parties. he tnm- ployer's request flr oral argument is herehs denied I Because the prilvisions of employer benefit fund agreements .ire s:lriable and complex, the Board does notl provide al the adudicator, stage ot i proceeding for the additl(n of interest at fixed rate n unlawlulls withheld fund payments We leave to the compliance stage the question whelher Re- spondent must pay an) additional amounts into the henefit funds in order to satisfy our "make-whole" remedy. These additional amounls mas he deler- mined, depending upon the circumstances ol each case, by reference to pro- visions in the documents governing the funds at issue and. vs here there are no governing provisions, to evidence of any loss directly ittrlbut.lble the unlawful ilthholding action, which might include the loss of return on n- vestment of the prrtlin f funds withheld. additlonal adminlstratl e co,*s. etc.. hut not collateral losses See Uern Hlfrter Opirl ( nltpllnV. 24(0 NI RB 1213 1979}. assigns. shall take the action set forth in the said rec- ommended Order. )CI,(' SION S l -I1-NI t l 1 1 II CI( S! D)AxID S. DA\i)stO. Ad.nministrativ e l.aU Judge: The charges in this case were iled on April 19. 1978. hb New York State 'eamsters ('ontrence ension and Retirement Fund, herein called the I-und. 1 he consolid.ated complaiint issued on June 16. 1978. alleging that Respondents have violated Section 8(a)(3) and (I of the Act bh making pen- sion fund contributions to the und on behalf of1 casual emplovees who are members of ('hauticurs. ITealmsters and Ilelpers. ocal Union No. I 18. ile refusing to nmake such palllen ts on behalf oft casual eplo sees \v ho are not mellm- bers of I.ocal 118. In their ansVuer, Respondents den, the commission oft' anx untair lahor practices. A\ hearing was held belire me in Rochesler. Nessu York. on September 28 and 29. 1978. At the conclusion of the (ieneral Counsel's case, the General Counsel as permitted to withdraw the complaint insofar as it relates Ito Boulter ('arting Co., Inc.. ('lanc, ('arting & Storage ('Co,. Inc.. George M. (lancs ('arting ( Co.. Inc.. (Glhobal \n allid Stor- age. Iic.. (iottr, Corp., Mlichael J. R an d b a R an ('art- ing ('o.. and Vogel Van & Storae of Rochester Inc., lea',- ing to he decided the allegations a to B. (. (. )tich & Sons,. Inc.. herein called ('ostich. ast E:id nMOilg & Storl-g.e Inc.. here called L-ast Id. . J. Renner (artline Co., Inc.. herein called Renner. and Service Storlge. Inc.. herein called Service. At the conclusion of the hearinig. the remainll- ing Respondents 1moied t- lisissal ol' the coimplallit is Ito therm aind ruling ;i as resericed The General Counsel a;id Respondents ha\se iled bricl, I pon the entire record in tils case. including m, ohbser- v;ation o te iln1esses ;11ld their delmeanor. I make tle 1ol- lo in e: I:I,,)l(;rs \NI) ('ot( I t sI)Ns 1. 111 Ilt SIIS () RSP0(\I I Respondents (ostich. Ltast nd. Renner. and Service are engaged in the nloving and storage of household goods and related services in Rochester, Nees York. AnnuallN each derives gross revenues in excess of $S500(X) trom its llO ming and storage operations performed pursua nt ti o conlractis with or arrangements , itlh Lindl or as agents tr ',trllnis iin- terstate commninion carriers. I tind that Respolldenlts are enl- ployers engaged in coLrmmerce u ithin the meatinig of the Act and that it u'ill effectuate the policies of the Act to assert jurisdiction herein. I 11. I AB(R (lR(i NIZAI[()N INS\tl 'l-li Local 1 18 is a labor orgalizatilon w ithin the meaning t the Act. 243 NLRB No. IS I)'CISIONS O(): NATIONAL L.ABOR RELATIONS BOARI) l. ilt Al Itil) tUNIAIR I AB(R PRA( II(l:S A. The a vly 1. he agreements between the parties Respondents are members of Rochester Truckmen's and WarehousemCen's Association, herein called the Associ- ation. and bargain jointly through the association with Lo- cal 118. heN are parties to a collective-bargaining agree- ment with I.ocal 118 effective from April 16, 1977, to April 15, 1980. Article I provides that the agreement covers "all truck driers, helpers, dockmen, warehousemen checkers, power- lilt operators hostlers. riggers, rigger helpers, packers of chi na and furniture, heavy hauling and freight, and such olher employees as may be presently or hereafter represent- ed b the ni n." It provides further that employees cov- ered by the agreement shall include all employees used in dockwork checking, stacking, loading, unloading, handling, shipping. receiving, assembling. and allied work. Article 2, Section 1 of that agreement provides that the ciployer recognize I.ocal 118 "as the sole and exclusive representative for all employees in the classification of work covered by this Agreement fior the purposes of collective hargainilig as provided by the National abor Relations ,Act." Article 2 Section 2 entitled "Probationary Employees," provides lor a 30-day probationary period for new employ- ecs ftler which they are to be placed on the regular senior- itl list. but "This does not apply to employees who are hired as replacements for employees who are on vacation or are absent from work." It also provides as follows as to casual employees: In case olfdiscipline within the thirty (30) day period the mrnployer shall notify the Local Union in writing. Casual employees shall not come under this provision. ('asual employee is one hired to cover jobs caused by vacations sickness, absenteeism and leaves of ab- sence and cannot work more than five (5) months or one hundred (100) work days without acquiring senior- ity. Casual employees of thirty (30) work days or more shall be granted the first regular job openings and no junior casual employee can be employed unless senior casual is also employed or has earned his full day or full week. Senior casual employees shall be granted regular job before hiring any junior casual employees as regular employees. Any casual employee whose work is fifty per cent (50W7) or more due to influx of business for thirty (30) days or more automatically becomes a regular em- ployee after thirty (30) days. Regular employee is one hired to fill job designated by Employer for a period of thirty (30) consecutive work days, or any employee who has an earned senior- ity as specified elsewhere herein. Regular employees on laid off status must be re- called to work in seniority order before any casual em- ployees and casual employees of thirty (30) work days or more shall hold casual seniority and shall be laid off and rehired according to their casual seniority. Article 23 of the agreement. entitled "Pension and Re- tirement Fund," provides that the employer agrees to con- tribute to the fund for "any and all of his employees cov- ered by this Agreement" in specified amounts. It provides further that the fund shall be open to participation by any group of members belonging to a participating local and *'any or all other employees of a participating Employer not members of the Union." It provides further that it is under- stood that the contributions to the fund provided therein "are in the nature of compensation to the emploNec for the purpose of inducing employment and continued elmploN- ment in the industry and for the purpose of providing bene- fits for himself and his dependents however intangible such benefits mav be to the individual employee at any gi en time." In administering the pension fund, participating emplo\- ers are usually required to sign a orm stipulation provid- ing, among other things: "I. The employer agrees to con- tribute for any and all of his regular ull-time and any and all other employees covered by this Agreement" to the fund. It provides further: 7. The Pension Fund shall be open to participation by any group of members belonging to a participating I ocal Union and the employer maN contribute to the New York State Teamsters ConIerence Pension & Re- tirement Fund for employees working outside the juris- diction of the C(ollective Bargaining Agreement in the amounts indicated above. However, if these emplo ces are included, the employer agrees to make contribu- tions on all emplovcles in this categor subject to) the same conditions and on the same basis as is provided in this stipulation. and the employer also agrees to con- tilue to nlake contributions on all o!f Ihew cmphOlees tor as long as there shall be a Collective Bargaining Agreement or Agreements between the employer and the U nion subject to any and all rules and regulations of decisions covering this group that are issued bh the Board of Trustees. 8. The employer agrees that should he not make contributions on 100`r7 of all his non-union employees as required herein, the New York State Teamsters Conference Pension & Retirement Fund will not pay nor be liable or obligated to pay any Pension & Retire- ment or other benefits to all his non-union employees whatsoever, whether or not contributions were made on such individuals, in which event the employer shall pay to any or all such non-union employees any and all Pension & Retirement or other benefits that such employee or employees may have been entitled to or are later entitled to until such time that the Pension Board of Trustees of the New York State Teamsters Conference Pension & Retirement Fund once again extends coverage to this group and only under terms decided solely by the Board of Trustees of the New York State Teamsters Conference Pension & Retire- ment Fund. Under the plan administered and supported by the fund. in order to be eligible to receive retirement benefits a par- 8( B. (;. ('()STICH( & SONS. IN( ticipanit lutst accuulaite t least 5 ,ars of credited ser- Ice.' 2 'he declaratorl judgmelnl In Janu;arr! 1978. metblhers ol the associationl. including Respondents. commenced c il actlion in the Supreme Court of New York. seeking among other things a declara- tory judgment that the employer members of' the associ- ation are not required hb the collectise-hargaining agree- ment to make contributions to the und on behalf of nonunion employees.' On August 2. 1978. Justice Robert Ht. Watgner issued a declaratory judgment in favor of the association. holding that its ermployer members were obligated under the collec- tive-bargaining agreement to make contributions to the fund "only on behalf of employces who are members of' I.ocal ULnion No. 118." Although the accompanying deci- sion of the court contains some indication that the court was under the impression that all casual employees were not members of local 118 and were excluded rom cover- age by the contract, it concluded that the intent of the par- ties was to establish a closed shop and that for pension purposes only union employees doing bargaining unit work were covered by the contraclt. A notice of appeal from the declaratory judgment has been filed, and the appeal was pending at the time of the hearing. 3. he practice \with respect to contributions to the fund on behalf of casual employees and their employment During the period from October 19. 1977, 6 months be- fore the charges in this case were filed, until the date of the hearing. Respondent Costich employed 27 casual employ- ees, of whom only one was a member of Local 118. During the same period Respondent East End employed 39 casual employee. of whom 7 were members of Local 118: Respon- dent Renner employed 15 casual employees. of whom one was a member of Local 118: and Respondent Service em- ployed 37 casual employees, of whom 8 were members of Local 118. During this period each of these Respondents made pension contributions to the fund on behalf of the casuals who were members of Local 118. but not on behalf of the remaining casuals who were not members of Local 118. Casual employees are hired either through the New York State Department of Labor or from lists of prospects main- tained by Respondents. Casuals work as drivers, helpers. or warehousemen as needed, and never perform work other than that performed by regular bargaining unit employees. Because they often lack experience, they usually require more supervision than regular employees. They receive the same hourly wage as regular employees receive, but do not I Death and disabilily benefits may accrue after I year ot partilcipallon. The rate of accrual of credits is geared to the contractual contribution rate per hour. and credits can accrue in amounts as little as IlOth of a year based on the total contribuion made in a parllcipant's behalf in the course of a fiscal year The collective-bargaining agreement contains a union-security clause In- )rfar as appears. the only employees referred it as nonunion employees sere casual employees who were not members of I.ocal 118. receive fringe benefits other than the conlrlbutions to the iund made on behalf' o uniolr meniber casuals. ()nc s iltl Ne testified that Boulter made such conitributions oni behllll its union casuals because the nion casuals er ce rmore expe- rienced than the nonmember casuals. As a rule. Respondents dLI nol tell nonmli¢inlber casuls that thev have made contributionis to thie pension lfund on behalf of union member casuals. but once a iioltlh lthie irfe required by the terms of the stipulation \\ith the iIuld to post in conspicuous places copies of' the rellitlalce fornl [o the fund listing each emploecc on %khosc behalf colntribu- tions have been made and the arnotiunls o llhe cltlrlibu- tlons.i B. ( ontludltf -noldn' T'here is no dispute that casual eplol ees are emploees within the meaning of the Act who are protected b, Sectlion 8(a)(3) of the Act against iscrirnilnialio n hich encouraLes or discourages union membership. H(voweer. there re is- sues raised as to the inclusion of the casual emplo Nees in the contractual unit and as to whether the disparate I reatnient of nonmember casuals is discriinationll I.hich encouraTes union membership. Initially, the General ('ounsel contends that .111 ;casual employees are part of the contractual bargaining uilil. % h1ilC Respondents contend that the s are not. Responlenis con- tend that its position is consistent with the decision of the court in the declaratory judgment action. However. while one portion of the decision appears to state that all casuals are excluded from the contractual unit. it reaches the con- clusion that the contract covers all union members. includ- ing casuals." but excludes all nonmember casuals. It thus appears that in this proceeding neither the (ieneral ('ounsel nor Respondents support the position take bs the court. While the state court had jurisdiction to construe and en- force the collective-bargaining agreement.' the Board is not bound by the decision of the state court." Here. to the ex- tent that the state court found that the contract established a closed shop and covered casual employees who were members of Local 118. while excluding casual employees who were not, the decision establishes a members onl' con- tractual unit which the Board would not find appropriate.' Moreover, the construction of the agreement as establishing a closed shop places it in conflict with the provisions of Section 8(a)(3) of the Act. In these circumstaces. it is ap- propriate to interpret the agreement independentl of the decision in the state court." One of the Respondents. Costich, stopped posting the Iorms, hen the current collective-bargaining agreement became eflectise because t did not sign a new stipulation with the lund In its case. each nlinth the teward inspects the remittance form and verifies that the pay ments hae been made. 3 From their conduct it is clear that Respondents so, construed the decision and order and continued their practice sith respect to conlrlhution, Io) the fund. C' harles Dond Be s Co. Inr v Curtnev. e ,al 368 t S 502 1962) Smith v. Evening Nes) AtssoliaiOtn. 371 S 195 (19621 6Combustion Engin'ering (onmpar . I1n , 86 NiRB 1264. 12t,6 67 I 1949i cf. N 1. R. B s 4llter E Hema nl. dbh:. Stlo s.s, lhriiisr 541 : 2.l 796 (9th (ilr 1976). 'ManuJacluring o4- x>ni.,'rAt Aes4o,lllan t (;relater S.u, )r, lin-. 194 NLRB 122. 1123 11972): Aaou P-,ler I.ygh (n)1atl, 64 NlRH 915 (1945) ('f. ( re v Ueonlthoire l ,,i rlr, (orp. 17S I S 26 1.272 119t,4 EI)t('ISI()NS ()1: NATIONAI. IABOR REI.ATIONS BOARI) Contrary to the court decision. it is clear rom the lace of' the agreement that it establishes a lawful union shop. rather than a closed !,hop. and that nonmembers of Local 118 are covered by its terms, even though theN man he required to become members of ILocal 118 after finishing grace or pro- bationary periods. Furthermore, notwithstanding testimony of several wit- nesses that they never negotiated with Local 118 on behalf of casual employees, inclusion of provisions in the agree- ment which have appeared in predecessor agreements for many years shows that the parties have bargained over terms of employment of casuals and have regulated em- ployment of casuals by their agreements. Thus. the agree- ment specifically provides that it covers all employees per- forming the work described by its terms. While it denies casual employees seniority after completion of a 30-day probationary period and exempts casuals from a require- ment of notification to Local 118 of disciplinary actions, it provides for casual seniority and gives senior casual em- ployees preferential hiring rights both for regular job open- ings and casual employment. Although some of the provi- sions in the agreement pertaining to casuals may he viewed as intended to protect the jobs of regular employees against erosion through abuse of the right to hire casual employees. the preferential hiring rights given senior casuals are of no benefit to regular employees and can only be viewed as regulation of the terms and conditions of employment of the casuals.' In these circumstances. I find that the agreement was intended to cover all casual employees, who, as has been shown, perform the same work as regular employees. As there is no evidence to show that inclusion in the contract unit of the employees termed casual by the agreement in this case conflicts with any policy of the Board."' I find that the parties have established by a long bargaining history units which include casual employees with regular employ- ees performing the same work. I find further that the Respondents' payment of pension contributions to the fund for casuals who were members of Local 118 at times when it did not make such payments for nonmember casuals constituted discrimination in regard to terms or conditions of employment which encourages union membership. Respondents content that there were in fact no benefits lost by nonmember casuals because they would never receive pension or retirement benefits under the pen- sion plan as they would never accumulate 15 credit years. Respondents' contention, however, is premised on the as- sumption that nonmember casuals will never become regu- lar employees, an assumption that cannot be made in the light of the provisions of the agreement which contemplate that casual employees may become regular employees and set forth the conditions under which the change of status is to occur. Many employees, including nonmember casuals. member casuals. and regular employees may never accu- ' In their briefl in connection with their contention that any discrimination which may occur is de mnimin., Respondents appear to concede that casuals are required to become members of the Uinion ater 30 dys olf casual em- ployment. which would he inconsistent with a conclusion that the agreement does not cover casual employees. 'l See 411-Work, Inc, 193 NLRB 918 (197 1); Rt Pil, Produ il.s, In, 121 NlRB 1172 (1958). mulate 15 credit ears under the terms of the plan, but their identity cannot he determined in the earl years of their employment, and the agreement contemplates that not ev- ery employee on whose behalf contributions are made will ultimately receive a pension from the fund. Thus it provides that contributions to the fund are compensation foir the pur- pose of providing benefits "however intangible such bene- fits may be to the individual employee at any given time." But to the nonmember casual who ultimately becomes a regular employee Respondents' failure to make payments to the fund while he is not a member may result in his being required ultimately to work longer than a member casual to become eligible for a pension. I find that the failure to pay pension contributions for nonmember casuals is discrimina- tion with respect to terms of employment. Respondents' also contend that anv discrimination is de inini.y because it results in at most loss of one-tenth of a credit for failure to contribute on behalf of an employee for the first 30 days of his employment. However, the require- ment that an employee work an additional 30 days to be eligible for retirement is hardly trivial and may bear serious consequences for an employee or his dependents in future years. There is no indication that Respondents intend to change their practice in the future, and the number of casu- als affected by the practice is constantly expanding. I find that the discrimination is not tic miniini.s. Respondents contend further that there can be no finding that discrimination in this case encouraged union member- ship because there is no evidence that nonmember casuals were aware that pension contributions were made on behalf of member casuals. However. it is not necessars to show that the specific discriminatees knew of Respondents' prac- tice. Three of the Respondents posted their monthly remit- tance reports of contributions to the Fund. and the fourth showed its report to the shop steward. The purpose of this disclosure was to insure that all contributions required by the agreement were made. In these circumstances, it is rea- sonable to infer that employees were aware of Respondents' discriminatory practice. Finally. Respondents contend that there is no evidence of discriminatory intent and that no such intent can be found where Respondents' conduct was confirmed by the declara- tory judgment. However. "specific proof of intent is unnec- essary where employer conduct inherently encourages or discourages union membership."i The declaratory judg- ment came long after Respondents adopted the practice of making pension contributions for casuals based on their union membership, and clearly was not the cause of it." I Radio Offi'er' Union of/the ('onmmerial Telegraphers nwtion, A II .4 H Buli/ Stealm.rhip ('umpanvl v. h L. R B. 347 U.S. 17. 45 (1954. 1 Respondent Renner contends that the evidence shows that it made cn- tributions t, the pension fund n behalf of member casuals onl after being advised ,of Justice Wagner's decision and order and that it should not be found in violation eof the Act fur following that oirder. Als'in Renner. pres- idenl ,of Respondent Renner. testified that during the period beginning ()cl,- her 19. 1977. ii, the date of' the hearing. Respondert Renner emploved nl oine member casual who was hired on August 16. 1978X and thai Ihe omtrl- hution n his behalf was made ;lier Renner was adilsed ol the declsion ot Justice Wagner and pursuant thereto. Although Renner also testificd thal ti the best of his knowledge Respondent Renner had neer presiousl? enl- pityed a member casual. in an aliid.l it g e tihe ( teera (' ountel on Ma 1 s 10. 1978. Renner stated that since 1955 Renner had mide conltributioin t o the pension fund ion behalf ,lf member c;lsudll In the hlght I Ithli s llelient 82 B (i. (O()SII('1 & SONS. INt( Moreo er. the State court decision did not purport to deter- mine the lawfulness of the practice under the Xct and gave no cause for Respondents to believe that the agreement as construed did not violate Section 8(a)(3). find that Re- spondents' conduct in this case inherentls encouraged union membership and violated Section 8(a1)3) of the Act. ' While I have found above that casual emplo es were included in the contractual bargaining unit e en i the c a- suals had been found to be excluded froim the contractual unit, the conclusion would nonetheless tbllow that Respon- dents' practice with respect to pension fund contributions for casuals was discriminatory.l4 While Respondents con- tend that the reasoning of Radio Ofilcer' ,in x. N.L.R.B.. ulprei, applies only where the two groups of' eiiim- ployees who have been treated unequalll are represented by a union in the same bargaining unit. the cases relied onl by Respondents all involve situations in which a group of' represented employees has been treated dlifferently front a group of unrepresented employees." 'I hey do not stanld for the proposition that an employer maN grant union meimbers different benefits from those provided nonmembers v where none of them are represented for purposes of collectise bat- gaining and all of them perform the same work and other- wise receive the same benefits. In the circumstances here present the differing treatment is based solely on Lunilon membership and violates the Act for the same reasons as set forth above. I conclude that Respondents hate iolated Section 8(a)(3) and ( I ) of the Act by making pension contri- butions to the fund on behalf of only those of its casual employees who were members of ocal 118. IV. rFIlEF RMttDY Having found that Respondents engaged in unfair labor practices I shall recommend that they be ordered to cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. As I have found that Respondents unlawfully discrimi- nated against casual employees who were not members of Local 118 by not making pension contributions on their behalf while making such contributions on behalf of mem- ber casuals, I shall recommend that Respondents be or- dered to make the nonmember casuals whole b making such contributions to the fund retroactively on their behalf for the period from October 19. 1977. the date 6 months before the charge was filed, until such time as Respondents begin to make contributions to the fund on behalf of all casual employees, to which shall be added interest to be the conclusion is warranted that as in the case of the other Respondents Renner did not institute contributions on behalf of the member casuals be- cause of the court decision and that it had a longstanding practice of making such contributions i1 Prestige Bedding Compan. Inc. 212 NLRB 690¢ 1974) 14 It is clear that union membership cannot serve to distinguish casuals for unit purposes. and all are either included in the unit or excluded from it Respondents have offered no facts to show that the employment regularity of member casuals differs from that of nonmember casuals. If evidence had been adduced showing that member casuals are more in the nature of regular part-time employees or have predictably regular employment while non- member casuals work only sporadically, then a different set of conclusions might well follow. 5 Meredith Corporation, 194 NLRB 588 (1971) The B F Go.drich (m- pany, 195 NLRB 914 (1972); Intermounain Equipment Compani . \ 1. R B., 239 F.2d 480 (9th Cir. 1956). compuled Iii the itanner prescrithed In /'/ oa St'e/ ( ps- r/au/o, 231 N IRB 65 (11977).' ('i%, It 11 S () t 1.%s 1 B. (. ( ostich & Sons. Inc.. i .ast lnd \1o ing & Stor age, Inc.. W'n. . Rinncr (riliug (.. Inc1.. and S`scc Storage Ic.. re cipli ls etigigAed in cliomlmlrce ss Ni the meall inig of Sectioll 2(2) () a;ld (7) of the \t. 2. ('haliul'eur. I allllers and Helpers, local lin,n No. I 18, is t labhor rgallllatioil ithin te ellalnlinl il Section 2(5) of' the \ci. 3. B discrlnllating aIga;inst caItsuall epnloCes s. ho are not memnbers of I ocal 1 18 il regard to plnnlil tf pellsioii contrihutlions to the Nes Yrkl; St;lte I atilsters ('o lllrence Petnsiotn alld Retiremei!t I tild. Respoldetllts hasC cngaged in unfair labor pra-;ctices ltleclinLg ctlllilerce , lhin tile mearniti of Secttions )(I) and I) nd 216 itild (7) ot the Act. LJpol he lregolingL timlinis I tact. cllttlioLs it' 1at. anid the eltire record. and llrsul l t Sectlioli t()t ol' the :\ct. I hereb , issue 1the l oll nrig rectonlnlendld: ()RI)I R Thele Respondenlts B. (. (o',tich & Sons, Ic'., ;ist End NMo ing & Storage, Ic.. ni. JI Relner ('ar-ting ('o.. Inc. alid Service Storage. Inc.. Rcheliter, Nev York, their offi- cers. agents. uccessors. ad asigns. shall: 1. (ease and desist from: (a) [)iscriminating against casual emplosees s ilh regard to the pa mrent of pension funtld cntributions becaluse thes are nt members ofC (ha ttt r. Teailsters a nd I elpers. - cal 'nion No. 118. (h) In an like or related miiniter inlerfcriing ith. re- straining, or coercing emplosees ill the eercise sit their right to enlgage in or retlraill t'ronl enigagilg in an, oir all the activities specified i Section 7 oi the X\Ci. 2. lake the fll,)wing atfiimlaltise actitill which Is neces- sarx Io etffecuate the policies )f the Ael: (a) Make their casual emploces hole tfor ani loss oit benefits they ma;l hase suftiered as a IrestIlt of' the discrimii- nation against them hb miakinig contributlions to the New York State Teamsters (onference Pfension ad Retirement Fund in the manner set forth in the section of this I)ecision entitled "The Reined." Is See. generall. sis Plumbnlg & haIloli ( , 138 N IRB 71h i 1962) he General Counsel asks that nterest he rdered at the rate it 9 pcrceli rather than at the rate prescribed in Florrida Slee ( ,rp,rllrilt suprsl. on the griound that financial events since the 1 rlda Sicl )ecision show s that its tirmula is not adequate to make emplosees whole w hile I hbelive that there is force tis the General (iunsel's argumentm h.i the Internil Revenue Sersice's adjusted prime rate has not reflected current market nteresl rates since 1I?/rida Steel was decided. I am constrained t llo Ihalt Deitossn until modified by the Boa rd i In the event ilo exceptions are filed a.1 prosided hs Sec 10246 of the Rules and Regulations of the Natinal I ahor Relltionrs Board. the findings. conclusions. and reconmended Order herein h.ll, a. prosided in Sec 102.48 of the Rules and Regulations. he adlpted hs he Boaid nd hecome it, findings. cinclus.ions. and Order. and all ohiectlirs hercel. shall he deemed waived for all purposes [)IL(ISIONS OF: NATIONAL. I.ABOR RAI .ATIONS BOARI) (b) Preserve and. upon request. make available to the Board or its agents, fr examination and copying. all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records rel- evant aind necessary to a determination of compliance with paragraph (a) above. (c) Post at their Rochester, New York, places of business copies of the attached notice marked "Appendix."1 Copies of said notice, on firms provided by the Regional [)irector fir Region 3. after heing duly signed by Respondents' rep- resentatives. shall be posted by them immediately upon re- ceipt thereof and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered. det'aced. or covered by any other material. (d) Notify the Regional Director for Region 3. in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 1 In the event that this Order is entiorced hy a Judgment o a United States (,ot rt ot Appeals. the words in Ihe no.lice reading "Posted bh Order oi the National I.abor Relaionls Board" shall read "Posled Pursuaint t .a Judg ment ,of the Utnted States ( ourt o, Appeals f nlbrcing an O(rder of the N;a- tional Labor Relalons oard " APPENDIX Notl(t I 't Ft lPIl o'lTS PosII t BhY ORI)I R t)l IIt NAI()ONAI LABOR RIi.AiII()NS BARI) An Agency of the United States (;overnment Wl wlL NOI discriminate against our casual em- ployees with regard to pament of pension fund contri- butions because thes are not members of (hauttffeurs. Teamsters and Helpers I.ocal Union No. 1 18. Wt: Wll1 NOI in an like or related manner interfere with. restrain, of' coerce our employees in the exercise of the right to engage in or to refrain from engaging in any or all the actisities specified in Section 7 of' the Act. Wt: ull I make our casual employees whole for any loss of' benefits they may have suffered as a result of' the discrimination against them by making all contribu- tions on their behalf to the New York State Teamsters ('onterence Pension and Retirement I und which we have failed to make since October 19. 1977. B. (. ('(tslt It & SONS. I(.: t'. \Sl I t:Ni M\ xl(; & SIo)RA( , I N(.; WVM. J. RNNIR C(ARIN (CO. IN( . ANt) SRVI(I STORA(G., IN( . 84