General Truck Drivers, Local 270

GENERAL TRUCK DRIVERS, LOCAL 270 299 General Truck Drivers, Chauffeurs, Warehousemen and Helpers Local 270, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind. (Bulk Transport, Inc.) and Archie L. Aples. Case 15-CB-1060 October 31, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On July 21, 1970, Trial Examiner Morton D. Friedman issued his Decision in the above-entitled case, finding that the Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, 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 Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examin- er's 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 exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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 the Respondent, General Truck Drivers, Chauffeurs, Warehousemen and Helpers Local 270, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, Ind., New Orleans, Louisiana, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION National Labor Relations Board, herein called the Board, issued a complaint on April 29, 1970, against General Truck Drivers, Chauffeurs, Warehousemen and Helpers Local 270, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind., herein called the Respondent or the Union, alleging violations of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq. ), herein called the Act. In its duly filed answer to the complaint the Respondent, while admitting certain allega- tions of the complaint, denied the commission of any unfair labor practices. Pursuant to notice, the hearing in this case was held before me at New Orleans, Louisiana, on June 2, 1970. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Oral argument was waived. Briefs were filed by counsel for the General Counsel and the Respondent. Upon consideration of the entire record, including the briefs of the parties, and upon my observation of each of the witnesses as they appeared before me, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Bulk Transport, Inc., herein called the Company, a Louisiana corporation with its principal office and place of business located at Port Allen, Louisiana, is engaged as a contract carrier to haul bulk and pulverant material, primarily bulk cement. As part of its operations, the Company operates a terminal located at New Orleans, Louisiana, which is the only facility involved in this proceeding. During the year immediately preceding the issuance of the complaint herein, a representative period, the Company received annual gross receipts exceeding $500,000 and received in excess of $50,000 for delivering materials from points located in the State of Louisiana to points located outside the State of Louisiana. It is admitted, and I find, that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues Whether the Union fulfilled its duty to fully disclose to Aples what the latter's obligations were pursuant to a valid union security clause before causing Aples' discharge for failure to perfect membership in the Union. STATEMENT OF THE CASE MORTON D. FRIEDMAN, Trial Examiner: Upon a charge filed on February 26, 1970, by Archie L. Aples, an individual, the Regional Director for Region 15 of the B. The Evidence At all times material to this case, the Respondent and the Company, were parties to a collective-bargaining agree- ment effective March 1, 1968, for 3 years, covering the 186 NLRB No. 47 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company's employees employed at its New Orleans, Louisiana, terminal. This agreement contained, among other things, a union-security provision which required that all new employees shall become and remain members in good standing of the Respondent, as a condition of employment, on and after the 31st day following the beginning of the employment . It is conceded that the union-security provision is lawful. Archie Lee Aples, was hired by the Company in July 1969 and worked as a truckdriver from that time until February 14, 1970, at which time he was "suspended" from employment upon the demand of the Respondent which sent a letter to the Company on February 12, 1970, asking the Company to suspend Aples' employment because Aples had refused to abide by the collective-bargaining agree- ment between the Company and the Respondent and had failed to perfect his membership in the Respondent. Thereafter, Aples remained unemployed by the Company until some time in April 1970 when his. membership in the Respondent was perfected and he was reinstated by the Company. Although Aples admittedly knew, probably some time in November or December 1969, that some of the employees of the Company were members of the Union , he testified that no one representing the Respondent had ever contacted him with regard to joining the Union . Confirm- ing Aples' testimony, both Joseph Guidry, Sr., and Raymond Lapino, of the Respondent, testified that neither of them had ever spoken to Aples before the latter was discharged on or about February 14, 1970. The only testimony in the record from which it could possibly be inferred that Aples might have had some information about the Union from a person connected with the Union was the testimony of Harold A. Hebert, now assistant terminal manager of the Company but in 1969, at the critical dates herein, the day dispatcher. Hebert testified that he knew, of his own knowledge , that as a matter of practice, Harold Roberts, the union steward at the Company's facility, placed union forms on the timecards of all new employees informing them of the Union . Aples, on the other hand, testified that he never received or saw any such form attached to his timecard which was usually handed to him by the dispatcher . Even assuming that Aples did receive such a union paper , or card, the record reveals that the forms distributed by Roberts were nothing more than checkoff authorizations and assignments which did not in any way convey to the reader that the employees of the Company had to become members of the Respondent. Nor did this said checkoff authorization state the amount of the initiation fees or the amount of the dues necessary to be paid to join the Union or where or to whom such payments were to be made , or that the employees of the Company were subject to a union-security clause . In fact, the authorization read in such terms as would make the reader believe that it was purely voluntary. Aples further admitted in his testimony that he learned of the existence of a union at the Company's facility through conversations with other employees . He attempted to find out more about the Union by speaking to Hebert who told him that the Employer did not take care of union matters but that the union steward did. When Aples finally did contact Roberts, the union steward, he was told by Roberts that he was no longer the union steward and could do nothing about the matter . Significantly, Roberts, the only individual who could testify as to whether he told Aples the details concerning the necessity to join the Union and how to effectuate membership , was not called by the Respon- dent although, when questioned, Respondent's counsel admitted that Roberts probably was still working for the Company. Hebert testified that at one time he did tell Aples that the latter had to join the Union . However, Hebert's testimony was limited to this one statement with regard to the information he gave to Aples. Hebert did not testify that he told Aples how to join the Union, where to join the Union, how much it would cost to join the Union, or any other details . Aples denied that Hebert or anyone else told him he had to join the Union. Lapino, secretary-treasurer of the Respondent, testified that at one telephone conversation subsequent to Aples' discharge by the Company, Aples admitted that he did talk to the union steward some time about 6 or 8 weeks prior to the time of the "knock off' letter and that the steward did tell Aples about the Union . Again, this testimony of Lapino could have been confirmed by testimony of Roberts who, significantly, was not called by the Respondent . According- ly, I do not credit Lapino's statement . And even if it were credited, I cannot infer that the mere testimony that Aples was "told about the Union" was sufficient to establish that Aples was told about the initiation fees , what the dues were, where the money was to be paid, to whom it was to be paid and other details with regard to the union-security provisions of the contract. The remaining testimony that Roberts told Aples the necessary details about perfecting union membership was the hearsay testimony of business agent Guidry to the effect that on or about the 11th or 12th of February Roberts told him that Roberts had talked to Aples and that Aples was not going to sign . However, even if this matter were not hearsay I would not credit Guidry . Guidry also testified that after Aples had been laid off he, Guidry, spoke to Robichaux, terminal manager for the Company, who told him that Robichaux had talked to Aples and that Aples said that he would take care of the union matter. However, Robichaux testified that he never directly talked to Aples with regard to the latter's joining the Union. Accordingly, because Robichaux is not involved in the outcome of this proceeding and Guidry is, I credit the testimony of Robichaux and do not credit Guidry. The balance of the testimony relating to Aples' knowledge of the Union is mostly innuendo . Thus, there is testimony by Robichaux that Respondent's advertisements for drivers offered the information that the job was a union job offering union benefits . Additionally, it would seem to be established that notices of union meetings of the Respondent were periodically placed on the bulletin boards of the Company's facility for information to the employees. Also, the paychecks issued by the Company contained a GENERAL TRUCK DRIVERS, LOCAL 270 space marked for deductions of union dues. Finally, there was evidence introduced to the effect that Aples was given several warning letters by the Employer with regard to his conduct as an employee and that on the bottom of each letter was the notation "cc: Teamsters Local No. 270." 1 C. Concluding Findings The sum of all of the foregoing testimony leads to the conclusion and the finding that although Aples had some knowledge of the fact that some of the employees of the Employer were members of a union called Local 270 and that Aples might, indeed, have had some knowledge that he was required to join Local 270, it is also significant that the testimony and other evidence failed to reveal that Aples was told by anyone connected in an authoritative way with the Respondent that Aples had to join the Union pursuant to a union-security clause in the agreement between the Respondent and the Company; what was required of Aples in order to perfect such membership and how, when, and where to perfect such membership. It should be noted in connection therewith that assuming Aples had knowledge at all with regard to any of these matters, such knowledge was imparted to him not through representatives of the Respondent but rather through other media such as posted meeting notices or information supplied by the officials or employees of the Company. The Respondent contends that since Aples had knowl- edge of the Respondent gained through means other than that supplied by the Respondent, nevertheless, Aples was duty bound to perfect his membership in the Respondent and that his failure to do so warranted the Respondent to cause Aples' separation from his employment. Counsel for the General Counsel contends, on the other hand, that the Respondent's failure to fully inform Aples of the latter's obligations pursuant to the union-security provisions of the contract, and the causing by the Respondent of the discharge of Aples constituted discrimination within the meaning of Section 8(b)(2) and 8(b)(1)(A) of the Act regardless of any independent knowledge that Aples may have acquired with regard to the Respondent from other sources. I find merit in the contention of counsel for the General Counsel. The Board has long held that, "when a Union requires a new employee to perfect membership under a lawful union security agreement, it has a 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 paying obligations, where the provisions relating to such obligations are not disclosed to the employee, would be grossly inequitable and contrary to the spirit of the Act." 2 And, "where the protection of an individual employee's right to continued employment is to be balanced against the statutorily restricted right of the union to enforce a union- i I consider irrelevant the testimony with regard to what occurred between Aples and union officials Guidry and Lapino subsequent to Aples' discharge by the Employer with the exception of the testimony containing possible admissions made by Aples 2 Philadelphia Sheraton Corporation, 136 NLRB 888, 896 See also Building Construction Workers Union 113 (James Luterbach Construction Co), 167 NLRB 39. Teamsters Local Union No 122 (August A Busch & Co), 173NLRB No 194 301 security agreement requiring membership 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." 3 A showing that the Respondent gave clear notice to Aples of what was required of him to perfect his membership in the Respondent is clearly absent in this case. Neither Guidry nor Lapino, the Respondent's agents who testified in this proceeding, did anything to inform Aples of the extent of his obligations at least until after Aples' discharge. Moreover, and even more significant, is the failure of the Respondent to establish that Union Steward Roberts acted to inform Aples of what was required of him. Certainly, newspaper advertisements and notices of meetings on bulletin boards, or checkoff forms such as used by the Respondent do not explain to a new employee the significance of a union-security clause or the penalty for failure to comply therewith. The mere fact that an employee might learn to a certain extent that a union is available to him and provides certain benefits is a matter distinct from the union's affirmative duty to inform an employee that he must join a union by a specified date on penalty of losing his job. Having failed to notify Aples of the existence and extent of his obligations under the collective-bargaining agreement, the Respondent could not then lawfully seek his discharge for failure to satisfy the obligation.4 Moreover, the Respondent's fiduciary duty to inform Aples of the latter's obligation under the union security provisions exists independently from the Company's obligation, if any, to notify Aples. Thus, even assuming that Hebert, the Company's dispatcher, told Aples that the latter had to join the Union, this would not be a fulfillment of the Respondent's duty to inform Aples fully as to his obligations with regard to joining the Respondent.5 And even assuming that Aples had sufficient independent knowledge that there was a union in the picture to have alerted him as a prudent individual under the circum- stances to make further inquiries with regard to union membership, he was under no obligation to seek out the Respondent to make such inquiries. A union-security clause is contained in a collective-bargaining agreement for the sole benefit of the Union and the Respondent alone was therefore under a fiduciary duty to inform Aples of the extent of his obligation under that agreement .6 Accordingly, I find and conclude that under all the circumstances of this case the Respondent violated Section 8(b)(1)(A) and 8(b)(2) of the Act when it demanded and obtained Aples' discharge. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activity of Respondent set forth in section III, above, 3 Local 545, IUOE (Joseph Saraceno & Sons), 161 NLRB 1114, 1121 4 Granite City Steel Company, 169 NLRB No 144 Building Construction Workers Union 113, supra, Local 98D International Union of Operating Engineers (Construction Field Surveys), 156 NLRB 545, 548 5 Building Construction Workers Union 113, supra, International Chemical Workers Union Local 50, supra. 6 Building Construction Workers Union 113, supra 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occurring in connection with the operations of the Employer set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. On the basis of the foregoing findings and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By causing the Company to discriminate against Aples, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It having been found that the Respondent is responsible for the discrimination suffered by Aples, it is recommended that Respondent make Aples whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of the reinstatement of his employment with the Company, less interim earnings, and in a manner consistent with the Board policies set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby recommend that General Truck Drivers, Chauffeurs, Warehousemen and Helpers Local 270, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind., its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Bulk Transport, Inc., to discriminate against Archie L. Aples, or any other of its employees in violation of Section 8(a)(3) of. the Act, as amended. (b) In any like or related manner restraining or coercing employees of Bulk Transport, Inc., in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Make Archie Aples whole in the manner set forth in the section entitled "The Remedy," above. (b) Post at its offices and meeting halls, copies of the attached notice marked "Appendix.' 17 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by a representative of the Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily displayed. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. These notices shall be posted by Bulk Transport, Inc., if willing, at places where notices to its employees are customarily posted. (c) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith .8 7 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, recommendations, 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. In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 9 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." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Bulk Transport, Inc., at New Orleans, Louisiana, to dis- charge or otherwise discriminate against Archie L. Aples, or any of its employees, with respect to their union membership, except to the extent provided by the proviso to Section 8(a)(3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. WE WILL NOT in any like or related manner restrain or coerce employees of Bulk Transport, Inc., in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL make whole Archie L. Aples for loss of pay suffered as a result of the discrimination against him. GENERAL TRUCK DRIVERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS LOCAL 270, A/W INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, IND. (BULK TRANSPORT, INC.) (Labor Organization) GENERAL TRUCK DRIVERS, LOCAL 270 303 Dated By from the date of posting and must not be altered, defaced, (Representative) ( Title) or covered by any other material. Any questions concerning this notice or compliance with This is an official notice and must not be defaced by its provisions may be directed to the Board's Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New anyone. Orleans, Louisiana 70113, Telephone 504-527-6361. This notice must remain posted for 60 consecutive days