Teamsters, Chauffeurs, Warehousemen, Local 182

234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters , Chauffeurs , Warehousemen, Stablemen and Helpers Local 182 (S. A. Scullen Jr., F. B . Scullen, Sr., and C. S. Bans d%b/a S. A. Scullen Co.) and Ameal Baird. Case 3-CB-975. May 1,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On February 1, 1967, Trial Examiner Lowell Goerlich issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trail Examiner with the following modifications. According to the undenied and credited testimony the relevant facts are as follows. On June 17, 1966, the Employer, S. A. Scullen Company, hired Ameal Baird, the Charging Party herein, as a truckdriver at its road construction site on Route 30 in upper New York State. The work at this location was covered by a collective-bargaining agreement between Associated General Contractors of America, New York State Chapter, Inc., and New York State Teamsters Council- Construction Di- vision. The council is an organization of Teamsters locals including, inter alia, Respondent and an Albany, New York, sister, Local 294. The jobsite was in Respondent's jurisdiction and Baird, at the time of his employment with Scullen, was a paid-up member of Local 294. The contract in effect between the Employer and Respondent contains a union-security clause providing in pertinent part: It shall be a condition of employment that all employees of the Employer covered by this ' Under the terms of the contract, Job Steward DePietro had no authority to collect money from Baird 2 In the vernacular of the individuals involved herein to "knock off" is to lay off or dismiss Agreement who are members of the Union in good standing ... shall remain members in good standing.... The failure of any person to become a member of the Union ... shall obligate the Employer, upon written notice from the Union to such effect and to the further effect that Union membership was available to other members, to forthwith discharge such person. Further, the failure of any person to maintain his Union membership in good standing as required herein shall, upon written notice to the Employer by the Union to such effect, obligate the Employer to discharge such person. The agreement defines "Union" as any of the member locals of the New York State Teamsters Council-Construction Division. Thus, a member in good standing in Teamster's Local 294 has complied with the union-security clause of the contract, and cannot be discharged pursuant thereto. On the same day that Baird was hired, Respondent's job steward, DePietro, approached him and asked whether he had a paid-up book. Baird produced his most recent dues receipts and a Teamsters identification card for DePietro's inspection. DePietro said that Baird "had to pay a fee" but did not say why he wanted a fee or the amount thereof. A week later DePietro came up to Baird at the jobsite and told him to "pay off." Baird then asked DePietro the amount of the "payoff," but the latter did not answer. As DePietro walked away Baird told him that if any money was involved DePietro should send Respondent Local 182's business agent to talk to him. I Baird's last meeting with DePietro took place on the morning of July 19, 1966. Earlier that day DePietro had told Baird's brother, John, the Employer's job superintendent, that he was going to lay off Ameal because the latter would not cooperate and was doing a lot of swearing. As Ameal Baird started toward his truck DePietro drew near to him and said he had to "knock" Baird off.2 When Baird asked him why, DePietro replied that it was because of Baird's failure to "cooperate." DePietro did not elaborate further. Baird then left the site and went home.3 Shortly thereafter, on the same day, DePietro paid a visit to Joseph Quinn, the Employer's timekeeper. DePietro told Quinn that Baird could no longer work on the job. Quinn made a notation to this effect in his job diary and asked DePietro for the reason. DePietro stated, "noncooperation with the Union." Quinn then inquired as to the meaning of "noncooperation with the Union." DePietro merely repeated this reason, adding that it was the decision I As to his reason for so doing Baird testified, "DePietro knocked me off and at that time when he knocked me off, I figured-I was burning up inside and I took off " 164 NLRB No. 38 TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, LOCAL 182 235 of his business agent. At the hearing DePietro admitted that Baird's termination "had nothing to do with dues," or with slips from or showing membership in the other union. Baird returned to the jobsite at noon on July 19 to find out DePietro's full name so that he could give the New York State Labor Relations Board all the details surrounding his layoff. He asked Quinn for this information and told the latter that DePetro had "knocked him off" the job. Quinn acknowledged his awareness of this fact. Superintendent John Baird testified that on the same day he informed Steve Scullen, one of the three partners in S. A. Scullen Co., of his brother's encounter with DePietro. Scullen responded to Baird's report as follows, "That's strictly none of the Company's doings, that is between him and the Union." A week after DePietro laid him off, Ameal Baird visited the site again and asked Quinn if Scullen had received notice from Respondent that Baird was to return to his job. Quinn replied that the Employer had not received such instructions from Respondent. Thereafter, on September 12, 1966, Baird was put back to work. He worked until September 27, when the job was completed. At the time of Baird's reemployment all of Respondent's members, including Job Steward DePietro, had left the site. Although Baird was never explicitly told by his Employer that he was discharged, we find, with the Trial Examiner, that the Employer's knowledge of DePietro's layoff of Baird, and the reasons therefor, represented acquiescence in Respondent's conduct and a constructive discharge of Baird. Thus the record evidence indicates that Baird had complied fully with the terms of the union-security clause in the collective-bargaining contract between the Employer and Respondent. The record further shows that Baird was not discharged for violating this provision of the agreement, but for "noncooperation," a term whose meaning Job Steward DePietro never clarified. Section 8(b)(2) of the Act expressly forbids a labor organization or its agent to cause or attempt to cause an employer to discriminate against an employee for reasons other than his failure to pay the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership. Accordingly, we find, with the Trial Examiner, that Respondent violated Section 8(b)(2) and (1)(A) of the Act by attempting to cause and causing the discharge of Ameal Baird. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Teamsters, Chauffeurs, Warehousemen, Stablemen and Helpers Local 182, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Trial Examiner: On the charges filed by Ameal Baird against Teamsters, Chauffeurs, Warehousemen, Stablemen and Helpers Local 182, herein referred to as the Union, on August 25, 1966, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 3, on October 14, 1966, issued a complaint and notice of hearing naming the Union as the Respondent. The complaint in substance alleged that on or about July 19, 1966, the Respondent Union attempted to cause and did cause S. A. Scullen, Jr., F. B. Scullen , Sr., and C. S. Hans, copartners doing business under the trade name and style of S. A. Scullen Co. (hereinafter referred to as Scullen or the Employer) to discharge Ameal Baird, the Charging Party, its employee, in violation of Section 8(b)(1)(A) and (2) of the Act. The Respondent Union filed a timely answer to the complaint in which it denied that it had engaged in the unfair labor practices alleged but admitted that "[o]n or about July 19, 1966, Respondent attempted to cause and did cause Scullen to discharge Baird, its employee from the Route 30 jobsite." The Respondent Union further answered that "petitioner was dismissed from his employment pursuant to the union-security clause' in the Labor Agreement between the Employer and the Union." i The union -security clause provided- ARTICLE 3-CONDITION OF EMPLOYMENT 3 1 It shall be a condition of employment that all employees of the Employer covered by this Agreement who are members of the Union in good standing on the effective date of this Agreement shall remain members in good standing and those who are not members on the effective date of this Agreement shall, on the eighth (8th) day following the effective date of this Agreement, become and remain members in good standing in the Union It shall also be a condition of employment that all employees covered by this Agreement and hired on or after its effective date shall, on the eighth (8th) day following the beginning of such employment become and remain members in good standing in the Union. The failure of any person to become a member of the Union at the required time shall obligate the Employer, upon written notice from the Union to such effect and to the further effect that Union membership was available to such person on the same terms and conditions generally available to other members, to forthwith discharge such person. Further, the failure of any person to maintain his Union membership in good standing as required herein shall, upon written notice to the Employer by the Union to such effect, obligate the Employer to discharge such person "Union" was defined as "New York State Teamsters Council-Construction Division, composed of Local Unions Nos. 65, 182, 294, 317, 398, 506, 529, 648, 649, 687 and 693, affiliated with the International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America." 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus the issue raised by the pleadings is whether the Respondent Union attempted to cause and did cause Scullen to discharge Baird, its employee, pursuant to the union-security clause in the labor agreement between the Employer and the Union as the Union claims or whether, as claimed by the General Counsel, the admitted discharge of Baird violated Section 8(b)(1)(A) and (2) of the Act2 in that Baird was discharged from its employment for a reason other than Baird's failure to tender periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership. This matter came on for hearing before me in Albany, New York, on November 30, 1966. At the time of the hearing the General Counsel and the Respondent Union were represented by counsel and the Charging Party, Ameal Baird, appeared in propria persona. Each party was afforded full opportunity to present evidence relevant to the issues, to call, examine, and cross-examine witnesses, to present oral argument, to file proposed findings and conclusions, and to file briefs. Briefs were submitted by the General Counsel and the Respondent Union which have been duly considered by me. On the record as a whole and from my observation of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF THE EMPLOYING ENTERPRISE Ameal Baird was employed on June 17, 1966, by Scullen as a truckdriver at a jobsite (herein referred to as the Route 30 jobsite) located halfway between Wells and Speculator on Route 30 in Hamilton County, New York. At all times material herein, Scullen has maintained its principal office and place of business at 6 Second Street in the city of Waterford, New York, and is and has been at all times material herein engaged as a general contractor in the road construction industry at said location and other locations including the Route 30 jobsite referred to above. During the past year Scullen, in the course and conduct of its business operations, purchased, transferred, and delivered to its various construction sites and places of business cement, pipe, and other goods and materials valued in excess of $50,000, which goods and materials valued in excess of $50,000 were transported to said construction site and places of business from, and received from, other enterprises located in the State of New York, which other enterprises had received the said goods and materials directly from States other than New York State. z Sec. 8(b)(1)(A) and (2) provides: It shall be an unfair labor practice for a labor organization or its agents- (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein .... (2) to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender During the past year Scullen, in the course and conduct of its business operations, performed services valued in excess of $50,000 of which services valued in excess of $50,000 were furnished to various other enterprises, including the State of New York, located in the State of New York, which other enterprises annually produce and ship goods and perform services valued in excess of $50,000 directly out of the State of New York.3 I find, as is admitted by the Respondent Union, that Scullen is now and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Teamsters , Chauffeurs, Warehousemen , Stablemen and Helpers Local 182 is a labor organization within the meaning of Section 2 (5) of the Act.4 III. THE ALLEGED UNFAIR LABOR PRACTICES The Facts On June 17, 1966, Scullen, through its superintendent, John A. Baird,5 employed Ameal Baird as the driver of a Sand Truck Company truck at the Route 30 jobsite. The truck was "hired" by Scullen from the Sand Truck Company until the latter part of September 1966. Baird operated the truck between the dates of June 17 and July 19, 1966, and September 24 and 27, 1966, at which time work at the jobsite was completed. The General Counsel claims that Baird was discriminatorily separated from employment between the dates of July 19 and September 24, 1966. The work at the Route 30 jobsite was covered by an agreement executed on March 4, 1965, by and between the Labor Relations Division of the Associated General Contractors of America, New York State Chapter, Inc., acting for and on behalf of the present and future members and the New York State Teamsters Council- Construction Division, composed of Local Unions Nos. 65, 182, 294, 317, 398, 506, 529, 648, 649, 687, and 693, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. (Emphasis supplied.) At the time of his hire Ameal Baird was a paid-up member of Local 294. The jobsite was in the territorial jurisdiction of the Respondent, Local 182. the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership.. Sec. 8(a)(3) of the Act provides in part: It shall be an unfair labor practice for an employer- (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization .... 3 The foregoing facts are admitted in the Respondent Union's answer. 4 The Union so admits in its answer. 5 John A. Baird is the brother of Ameal Baird. TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, LOCAL 182 237 Shortly after his ethployment Baird was accosted by John DePietro, the job steward for Local 182.6 According to DePietro he asked Baird whether he was a member of the Union, whereupon Baird "started hollering." Baird said "You G- D- fools, you're all the same. . . . I got a book.... It belongs to Albany' and I can't get a job and guys without books can't get along." At this point Baird "started swearing and cussing." DePietro said, "if that's the way you feel about it" and walked away. DePietro did not ask Baird to become a member of Local 182. Baird's version was somewhat different. Baird testified that in response to DePietro's question, he "showed him a receipt and an identification card" for Local 294. DePietro then said that Baird "had to pay a fee." DePietro did not reveal why he wanted the fee or the amount demanded. DePietro testified that after his first encounter with Baird he reported to Union Business Agent Carmen Citro that Baird would not show him "no book or anything that he was a member of the Union."" The business agent advised DePietro to ask for evidence of membership. DePietro returned to Baird and notified him that the business agent had sent him to check his "slip." Baird commenced swearing and said "That G- D- s. o. b., let him come himself." DePietro "got burned up" and left. He reported the incident to his business agent who directed him "to knock him off." Again Baird's version differed. According to Baird, DePietro told him "to pay off" or he "wouldn't have no job." Baird asked him for the amount of the "payoff" but received no answer. Baird told him that if there was any money involved with Local 182, "to send his business agent down" and he would talk to him.9 Carmen Citro, the vice president and business manager of Local 182, confirmed that DePietro had reported Baird's reluctance to prove union membership. On a subsequent occasion DePietro described his difficulties with Baird and that he was unable to ascertain whether Baird was a member of the Union. He informed Citro that Baird was the brother of the superintendent. Citro advised, "[T]hen go ask the superintendent does he carry a book from the Union." DePietro was also told to contact Steve Scullen, one of the copartners. Later, DePietrc reported that he had been unsuccessful in obtaining proof of membership. Citro advised, "Knock him off1it or have him show proof of membership." On July 19, 1966, DePietro confronted Superintendent Baird with the statement that he . "had to go over and tell Baird here that [he] had to lay him off because he wouldn't co-operate with [him], doing a lot of swearing." Superintendent Baird responded that it was between Ameal Baird and him and he did not "want nothing to do with it."11 According to DePietro, after his conversation with Superintendent Baird he approached Ameal Baird and said, "[W]e're going to have to knock you off because you wouldn't co-operate12 with me." Baird jumped out of his car and DePietro left. Baird's testimony was substantially the same as that of DePietro. Baird added that he asked DePietro whether the reason was because it was raining. DePietro answered that the reason was because he "wouldn't co-operate." Baird told Cole, the owner of the truck which Baird was driving, that DePietro had knocked him off and that he was going to call the State Labor Board to find out where he stood. Baird went home and called the State Labor Board.13 In the meantime DePietro visited Joseph B. Quinn, Scullen's timekeeper, between 8 and 10 o'clock. He informed Quinn that Baird could no longer work on the job. Quinn made an entry in the job diary to that effect and asked DePietro the reason. DePietro answered "for nonco- operation with the Union." Quinn asked him what he meant by "nonco-operation with the Union." He answered, "[F]or nonco-operation with the Union." DePietro said it was the decision of his business agent. Quinn related the incident to Superintendent Baird about 10 o'clock of the same day. Around noon Baird returned to the jobsite and asked Quinn for the steward's name. Quinn gave Baird DePietro's name at which time Baird commented that DePietro had knocked him off. Quinn responded that he had heard about it. Superintendent Baird advised Steve Scullen, one of the owners, that DePietro had knocked off Ameal Baird. Scullen commented, "That's strictly none of the Company's doings, that is between him and the Union." Baird returned to the jobsite a week after his separation and asked Quinn if Scullen had any notice from the Union for his return to work. Quinn's answer was in the negative. In the meantime Baird had approached the president of Local 294 with a request to "straighten things out" with Local 182. Baird was told that there was nothing that could be done because "it was two different locals." After the Union had left the jobsite Baird was put back to work driving the Sand Truck Company truck. He worked from September 12 to 27, 1966, at which time the job was finished. 6 Under the labor agreement in effect between the Employer and the Union it is provided in respect to job stewards The authority of job stewards and alternates so designated by the Union shall be limited to, and shall not exceed, the following duties and activities* (a) The investigation and presentation of grievances in accordance with the provisions of the collective bargaining agreement (b) The transmission of such messages and information which shall originate with, and are authorized by the local union or its officers, provided such messages and information (1) have been reduced to writing, or (2) if not reduced to writing, are of a routine nature and do not involve work stoppages, slowdowns, refusal to handle goods, or any other interference with the Employer's business r Local 294 was located in Albany 8 DePietro testified on cross-examination that he had informed Citro that Baird claimed membership in Local 294 but would not show him his "book " Citro's testimony was to the contrary 9 Under the labor agreement the steward had no authority to collect money from Baird 10 DePietro defined "knock off" as "to lay off, dismiss " Such was DePietro's version Superintendent Baird testified, he said, `What seems to be the matter with Ameal9' I said,'I don't know ' He said, `Well,' he says, 'if he don't co-operate with me, I'll have to knock him off' And I said, `John,' I said, `whatever is between you and the Union man here, I do not figure that I'm concerned in any way, shape or manner. I have nothing to do with the Union' . Well, I asked him what was the reason, was he back on his dues or somethtng2 He told me no, that he wouldn't co-operate. And I said that was nothing to me what you and him does between the Union which I have no part in any way, shape or manner with it " (Emphasis supplied ) i2 DePietro defined "nonco-operation" as "he wouldn't talk to me in a decent way, swearing and everything like that." 10 Superintendent Baird testified that Clifford Cole told him that DePietro had knocked off Baird 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Citro, he at no time contacted Local 294. Citro said that Baird was the first employee who was knocked off on "his road builders." Citro admitted that the contract required a written notice to be served upon the Employer before dismissal could be effected. He testified, "So if I didn't give the written notice, then the Employer was wrong in dismissing him." The Employer was not served with a written notice nor was Baird ever notified of the amount of dues he was required to pay." Citro said that he first learned of Baird's membership in Local 294 when he was called by a representative of the National Labor Relations Board on August 25, 1966.'' DePietro admitted that Baird's knocking off "had nothing to do with dues" and "[n]othing to do with slips from or showing membership in the other union." Conclusions First: It is only reasonable to conclude from the foregoing detailed facts, as well as from the record as a whole, that Baird was "knocked off' his job "for nonco- operation with the Union" or as elucidated by DePietro, "doing a lot of swearing," and not for Baird's failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in a labor organization pursuant to a contract authorized by the provisions of Section 8(a)(3) of the Act. It is clear that the provisions of the labor contract were not adhered to in procuring Baird's separation from employment. However, the first question which presents itself is whether the Employer, Scullen, may be charged with the dismissal of Baird or as claimed by the Union Respondent, "Baird merely walked off the fob...." On this point I conclude that the Employer's participation in the incident of Baird's departure was such as to charge it with Baird's constructive discharge. While the Employer possessed actual knowledge of the reasons stated by the Respondent Union for Baird's departure through the communications of Union Steward DePietro, it made no effort to countermand the action of DePietro nor did it effect Baird's reinstatement until after representatives of Local 182 had left the jobsite. The Employer's intent to continue Baird as separated from employment is fully manifested by its failure to put Baird back to work after it had learned of the cause of his departure when he returned to the jobsite on the day of the incident and, again later, when he returned to inquire whether the Employer had any notice from the Union for his return to work. Superintendent Baird's attempt to wash his hands of the whole matter by telling DePietro that the controversy was between the Union and Baird and that he was not "concerned in any way, shape or manner" did not exculpate the Employer from the consequences of DePietro's direction to Baird to leave Scullen's employment, but trenchantly revealed the Employer's acquiescence in DePietro's conduct. The following language from J. W. Bateson Company, Inc., 134 NLRB 1654, 1656, is apposite: ... silence ... when according to ordinary experience an employer would be expected to speak if he did not acquiesce in the Union's adamant position, established a situation in which [the employee] could, and did, reasonably conclude that the Company assented to the Union's insistence that he not work. Thus Sutton's leaving the job cannot be found to be a voluntary act on his part but rather one motivated by the Company's conduct in creating the impression that it had assented to the unlawful position taken by the Union. Accordingly, we find that Respondent Company by failing to dispel this impression constructively discharged [the employee] in violation of Section 8(a)(3) and (1) of the Act. In the instant case there is no room for doubt that the Employer, when it was first advised of the Union's intention to "knock off" Baird and thereafter, conducted itself in such a manner as to confirm its acquiescence in the action taken by DePietro. By the Employer's failure to dispel the impression either by words or action that it assented to Baird's departure from employment at the behest of the Union, the Employer constructively discharged Baird. Moreover, at the time of Baird's departure from employment, the Respondent knew that it could not justify his discharge because it had reasonable grounds for believing that membership in the Union was not available to Baird on the same terms and conditions generally applicable to other members, or because it had reasonable grounds for believing that his membership was denied or terminated for reasons other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. Second: The Respondent in its brief contends: HAD THE UNION CAUSED BAIRD'S DISCHARGE IT WOULD have been legal and proper since there was a valid security clause in the agreement. The Respondent reasons that Baird was required under the union-security clause to become a member of Local 182 or prove membership in Local 294 within 8 days. He did neither. Therefore he was properly discharged. No authorities are cited for the Respondent Union's position. This argument fails for two reasons: (1) Baird proved membership in Local 294; 'b (2) Baird's constructive discharge was not effected because Baird did not become a member of Local 182 or because he did not prove membership in Local 294. Baird's discharge occurred because he was uncooperative with the Union which, according to DePietro, had "nothing to do with dues." Indeed, Baird's separation from employment was not in compliance with the union-security clause." Moreover, it seems unreasonable to assume that it was intended by the parties that the Employer's contractual obligation to 14 Citro testified that had Local 182 received proof that Baird was a member of 294 he "would have wrote a letter to the President of the Local in Albany of 294 and have this man work in [his] jurisdiction Therefore, the President of 294 would send me a transfer for work in [his] jurisdiction and Baird would have to pay dues into [his] local " In the alternative Baird could have remained a member of Local 294 and paid a service charge to Local 182 11 DePietro testified that he reported to Citro that Baird said he was a member of Local 294 and Citro told him to find out if he had any receipts to show that he was a member of Local 294 is Baird's credited testimony established that he was a member of Local 294 and that he displayed evidence of such fact to DePietro Baird testified, "Mr DePietro came up and asked me if I had a paid-up book and I showed him a receipt and an identification card [for] Local 294 " DePietro admitted that Baird told him that he had a book from Local 294 Thus it is significant that DePietro did not ask Baird to become a member of Local 182 at the time 'r Union Business Manager Citro testified, "So if I didn't give the written notice, then the Employer was wrong in dismissing him" TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, LOCAL 182 discharge employees for failure to "become and remain members in good standing in the Union" embraced the obligation to discharge an employee for failure to cooperate with the Union in a matter which had "nothing to do with dues," for so to construe the union-security clause would cast doubt upon the validity18 of the clause in view of the limitations set forth in Section 8(a)(3) of the Act. Nevertheless, the issues remain as to whether Baird'- constructive discharge for noncooperation with the Union constituted "discrimination" as that term is used in Section 8(a)(3), and whether the discharge, if discriminatory, did "encourage or discourage membership" in a labor organization." The burden of proof as to these issues was with the General Counsel. A. In N.L.R.B. v. Local 50, American Bakery & Confectionery Workers Union, AFL-CIO (Ward Baking Co.), 339 F.2d 324, 327 (C.A. 2), the court said: Stated concisely, we believe that an employee is unlawfully "discriminated" against when a distinction is made arbitrarily or without sound basis and to his detriment. [Citation.] It is clear to us, moreover, that the provisions of the Labor Act under consideration are meaningful only if they are read to forbid such "discrimination" 20 not only between union members and non-members or between good members and bad members but in all decisions which depend primarily upon union membership consideration.21 On the subject of discrimination the Supreme Court has said in The Radio Officers' Union of the Commercial Telegraphers Union, AFL, etc. v. N.L.R.B., supra, 39: . involuntary reduction of seniority, refusal to hire for an available job, and disparate wage treatment are clearly discriminatory. It would seem that discharge for lack of cooperation with the union would constitute an even more marked discrimination than that mentioned by the Court, since a discharge results in more than a reduction of seniority; it results in the absolute abolishment of seniority. Baird's constructive discharge was for a cause unrelated to the employment relationship with his Employer. It pertained to the compliance with a union rule tailored to fit a union steward's pleasure. The discharge manifested dissimilar treatment for good and bad union members stemming from membership considerations alone. The Union's decision was clearly arbitrary and without sound basis and to Baird's detriment. I find that Baird's constructive discharge constituted "discrimina- tion" as such term is used in Section 8(a)(3) of the Act. N.L.R.B. v. Local 50, American Bakery & Confectionery Workers Union, AFL-CIO, supra. 1s " the legislative history clearly indicates that Congress intended to prevent utilization of union -security agreements for any purpose other than to compel payment of union dues and fees " Radio Officers' Union of the Commercial Telegraphers Union, AFL (A H Bull Steamship Company) v N L R.B , 347 U.S 17, 41. is " the only encouragement or discouragement of union membership banned by the Act is that which is accomplished by discrimination " Local 357, International Brotherhood of 239 B. The final question to be resolved is whether Baird's constructive discharge for noncooperation with the Union encouraged or discouraged membership in any labor organization. Discrimination aimed at encouraging or discouraging employees to join, retain membership, or remain in good standing in a union, except where an employer has entered into a union-security contract valid under the Act with a union, is proscribed; but Section 8(a)(3) of the Act does not outlaw all encouragement and discouragement of membership in a labor organization. Only such is outlawed as is accomplished by discrimination. Nor does Section 8(a)(3) outlaw discrimination in employment as such; only such as encourages or discourages membership in a labor organization . The Radio Officers' Union of the Commercial Telegraphers Union, AFL, etc. v. N.L.R.B., supra, 42, 43. ... encouragement to remain in good standing in a union is proscribed." Idem., 42. The Supreme Court also said: Encouragement and discouragement are "subtle things" requiring "a high degree of introspective perception." Idem., 51. The pressure put on Baird was not necessarily of a subtle nature. Baird's discharge was a practical demonstration of what employees could expect if they did not accommodate the will of the Union as it interpreted approved behavior of its members. Employees were encouraged thereby to become members in such standing as would conform to the Union's pleasure. Only then could they be assured of the Union's favorable consideration which, if flouted, would result in their potential discharges. Furthermore, a nonmember could reasonably conclude that if Baird, a member, was discharged for noncooperation with the Union in a matter which had "nothing to do with dues," a nonmember would be shown even less consideration if he refrained from union activities as privileged him under Section 7 of the Act. Baird's constructive discharge breached employees' rights "to freely exercise their right to join unions, be good, bad, or indifferent members or abstain from joining any union without imperiling their livelihood." The Radio Officers' Union of the Commercial Telegraphers Union, AFL, etc. v. N.L.R.B., supra, 40 The action taken by the Union was neither sanctioned by the union-security agreement nor did it come within the exception set out in the provisos attached to Section 8(a)(3). Thus the Union, by requesting such discrimination, and the Employer, by submitting (in effect) to such unlawful request, deprived Baird of rights guaranteed by the Act. Upon the entire record, I find that by attempting to cause and by causing the Employer, Scullen, to discriminate against Baird in violation of Section 8(a)(3) of Teamsters, etc. (Los Angeles - Seattle Motor Express v . N L R B., 356U.S 667,676 20 "Discrimination " is defined as the "act of treating differently; treating one differently from another " 27 C J S Discrimination 301 21 In N L R B. v Local 50, American Bakery & Confectionery Workers Union , AFL-CIO, supra, court found discrimination where the union sought discharge of an employee because he "`had taken a transfer card and was not entitled to recall ". 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act,22 the Respondent Union violated Section 8(b)(2) and (1)(A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section II, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found by the aforementioned conduct that the Respondent Union has violated Section 8(b)(1)(A) and (2) of the Act, it will be recommended that the Respondent Union cease and desist from engaging in such conduct in the future and affirmatively take such action as will dissipate the effects of its unfair labor practices. It is further recommended that the Respondent Union notify the Employer, Scullen, in writing , with a copy to Ameal Baird, that it withdraws its objection to the Employer's employment of Baird and does not oppose his reinstatement or the restoration of his seniority as it existed on July 19, 1966, the date of his discharge or suspension. It is further recommended that the Respondent Union make Ameal Baird whole for any loss of pay suffered by reason of the discrimination against him , by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of the discrimination until Baird's reinstatement , less his net earnings during this period. The loss of earnings shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and with interest on the backpay due in accordance with Board policy set out in Isis Plumbing & Heating Co., 138 NLRB 716. Conclusions of Law 1. S. A. Scullen, Jr., F. B . Scullen, Sr., and C. S. Hans d/b/a S . A. Scullen Co., is an employer engaged in commerce within the meaning of Section 2 (6) of the Act. 2. Teamsters, Chauffeurs, Warehousemen , Stablemen and Helpers Local 182 is a labor organization within the meaning of Section 2 (5) of the Act. 3. By causing Scullen to discriminate against Ameal Baird in violation of Section 8(a)(3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(2) and (1)(A) of the Act. 22 Under proviso (B) of Sec 8(a)(3) an employer may effectuate the terms of a lawful union•secunty agreement only if he has reasonable grounds for believing that "membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership " "No other discrimination aimed at encouraging employees to loin, retain membership , or stay in good standing in a union is condoned." Radio Officers' Union , etc v. N.L R.B., supra, 41 , 42 At the time Baird left Scullen 's employment , the Employer knew that such separation was not caused by Baird 's breach of a lawful union- security agreement but was caused by the Union's maintaining that Baird was not otherwise cooperating with the Union. 23 In the event that this Recommended Order be adopted by 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sections 2(6) and (7) of the Act. RECOMMENDED ORDER23 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record of the case, it is recommended that the Respondent Union, Teamsters, Chauffeurs, Warehousemen, Stablemen and Helpers Local 182, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause S. A. Scullen, Jr., F. B. Scullen, Sr., and C. S. Hans d/b/a S. A. Scullen Co., or any other employer, to discriminate against Ameal Baird 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 the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment in accordance with Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Make whole Ameal Baird for any loss of pay suffered as a result of the discrimination against him in the manner set forth in the above section entitled "The Remedy." (b) Notify Ameal Baird and the Employer, in writing, that it withdraws its objections to Baird's employment and does not oppose reinstatement of his full seniority rights or other rights and privileges as they existed on July 19, 1966, the date of discharge. (c) Post at its business office and meeting place or places copies of the attached notice marked "Appendix."24 Copies of said notice, to be furnished by the Regional Director for Region 3, after being duly signed by an authorized representative, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Forward signed copies of the Appendix to the Regional Director for posting by the Employer at its place of business. (e) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Recommended Order what steps Respondent has taken to comply herewith.25 It is recommended that the complaint be dismissed insofar as it alleges violations of the Act other than those found in this Decision. the Board, the word "Order" shall be deemed substituted for the words "Recommended Order " 24 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 25 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN , LOCAL 182 APPENDIX NOTICE TO ALL MEMBERS OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, STABLEMEN AND HELPERS LOCAL 182 Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: In a hearing conducted by a Trial Examiner for the National Labor Relations Board on November 30, 1966, our steward on the jobsite of the S. A. Scullen Co. between Wells and Speculator on Route 30 in Hamilton County, New York, testified that he knocked employee Ameal Baird off his job because he would not cooperate with the Union. The steward testified, "I had to lay him off because he wouldn't co- operate with me, doing a lot of swearing ... he wouldn't talk to me in a decent way, swearing and everything like that." He said that Baird's knocking off had "nothing to do with dues." Baird at the time was a member of Local 294. The National Labor Relations Act provides that neither the Union nor its agents can cause or attempt to cause an employer to knock an employee off for this reason. An employee may be knocked off for the failure of an employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership in the Union if a labor contract so provides. What our steward did was wrong. 241 We are therefore making Ameal Baird whole for any loss of pay he has suffered because of the misconduct of our steward. We shall not in the future knock off an employee for the same reason for which Baird was knocked off; nor are our stewards authorized to do so. We shall strive in the future to preserve the rights which are guaranteed our members by the National Labor Relations Act. TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN, STABLEMEN AND HELPERS LOCAL 182 (Labor Organization) Dated By (Representative) (Title) Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 842-3100.