Teamsters, Local 70

TEAMSTERS, LOCAL 70 Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (California Trucking Association) and Emery Syl- vester Brooks. Case 20-CB-2199 January 30, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On September 17, 1970, Trial Examiner Benjamin B. Lipton issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation 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 limited exception I and a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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 preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the 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 Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, its officers, agents, and repre- sentatives, shall take the action set forth in the Trial Examiner's Recommended Order.2 1 The General Counsel took a limited exception to the first sentence of the Trial Examiner's Decision in which the Trail Examiner inadvertently stated that the case was heard in Winchester, Virginia. The hearing was actually conducted in San Francisco , California. 2 In footnote 14 of the Trial Examiner's Decision, substitute "20" for "10" days. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 305 BENJAMIN B. LIPTON, Trial Examiner: This case was heard before me on June 2, 1970,1 in Winchester, Virginia. The issue as alleged 2 and litigated is whether, in violation of Section 8(b)(2) and (1)(A), Respondent discriminatorily refused to register and dispatch the Charging Party, Emery S. Brooks, under an exclusive job referral system operated by Respondent under contracts with California Trucking Association and other employers. All parties participated in the hearing and were permitted full opportunity to adduce relevant evidence . Briefs received from General Counsel and Respondent have been accorded due consideration. Upon the entire record in the case, and from my observa- tion of the demeanor of the witnesses on the stand, I make the following: FINDINGS OF FACT I JURISDICTION During the year preceding issuance of the complaint, Respondent was party to a collective-bargaining agreement with California Trucking Association, herein called the As- sociation, whose employer members, in the course and con- duct of their operations, received in excess of $50,000 for transporting freight in interstate commerce . Respondent ad- mits, and I find, that the Association and its employer mem- bers are engaged in commerce within the meaning of the Act. 11. THE LABOR ORGANIZATION INVOLVED Brotherhood of Teamsters & Auto Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, herein called Local 70 or the Respondent, is a labor organization within the meaning of the Act. III THE UNFAIR LABOR PRACTICES A Pertinent Evidence Local 70 operates an exclusive hiring hall pursuant to its contracts with various employers. It is contractually provid- ed (as essentially required by decisions under the Act) that: Selection of applicants for referral to jobs shall be on a nondiscriminatory basis and shall not be based on, or in any way affected by, Union membership, by-laws, rules, regulations, constitutional provisions , or any oth- er aspect of Union membership , policies or require- ments. The contract prescribes certain hiring or referral standards, e.g., at the hiring hall, a list, called List A, is maintained of all workmen employed for at least a year on qualified work in the geographical area covered by the Local's hiring hall. Each workman is further designated according to the type or types of work for which he is qualified to perform. An- 1 Unless otherwise shown , all dates are sequentially in 1969 and 1970. 2 The original charge was filed on February 26 and served on February 27, and an amended charge was filed and served on April 27 . The complaint thereon was issued by the General Counsel April 28, and a Bill of Particulars, as ordered, was filed on May 27. 188 NLRB No. 61 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other list, called List B, is kept of all workmen seeking jobs who are not eligible for List A. Names are entered on the lists in the order in which applicants notify the hiring hall of availability for jobs . Preference in making referrals is given to those on List A, and only after List A is exhausted are workmen dispatched from List B. As an exception to the rule of referral, it is provided that an employer may call for a workman by name only if it had previously employed such workman, and if such workman was registered on List A. The procedure was further described in Respondent 's testi- mony. Applicants at the hiring hall from a single line to the dispatch window. At the window, there are usually three dispatchers, who maintain seven different lists of job func- tions under List A, and a separate List B. The applicant states his qualifications and what he wants to do, and his name is placed by the dispatcher on one or more of the lists. Each day the names on the various lists are called in rota- tion by the dispatcher . If the applicant fails to respond when his name is called or when the applicant obtains employ- ment through these referral procedures, his name is stricken from the lists, which are otherwise continued from day to day. Brooks testified substantially as follows: He had been a member of the Teamsters Union since 1951, successively in Locals 78 and 302, holding various truckdriving jobs in the San Francisco bay area. After he was laid off from his job at Safeway Stores on October 31 , he sought but failed to obtain work through the hiring hall of Local 302. About November 8, he went to Local 70's hiring hall in San Fran- cisco. At the dispatch window, he asked William C. Fa- 9 ndes, one of the three dispatchers on duty , if he could sign the list for a job referral . Fagundes inquired as to his union membership, and Brooks responded he was a member of Local 302. Fagundes told him, "I still can't sign you up unless you're a member of Local 70 .... We have too many men out of work." On November 11, Brooks took a job with the post office, where he worked until December 31. On January 4 or 5 , he returned to Local 70 and spoke to Dis- patcher Fagundes. Again he was asked if he was a member of Local 70 and answered negatively . Fagundes told him he could stay around, but he could not sign him u pp on the list. On January 27 or 28 , at the hiring hall, when he replied to Fagundes that he had not become a member of local 70,3 he was told he could not be signed up as they had too many men out of work. On February 4, Brooks came to the Local 70 office and spoke to LeRoy D . Nunes, business represent- ative. He said he had a job with Sea Land and would like to transfer membership from Local 302 in order to obtain clearance for the job from Local 70. Nunes told him he could not be hired on this job unless he was a member of Local 70. An arrangement was then made for Brooks to be interviewed by Local 70's executive board on March 3 4 On this same day, after seeing Nunes, Brooks went to the hiring hall and spoke to a dispatcher, other than Fagundes, again without success. On February 10 or 11, Brooks made a further effort to register at the Local 70 hiring hall. Fa- gundes said he could not sign him on because he was not a member. On March 3, Brooks appeared before the execu- tive board, following which he was told by one of the partic- ipating union officers that he was now a member ofLocal 3 Brooks was admittedly uncertain as to the dates he visited Local 70's hiring hall On cross-examination , he stated he thought it was more than twice that he went in Jaunuary 4 Although originally General Counsel alleged a specific violation stem- ming from Brooks' conversation with Nunes on February 4, in his beef, General Counsel withdrew this allegation "in view of the provisions of the collective bargaining agreement with respect to individuals securing their own jobs." 70.5 The next day he paid $20.75 to Local 70 and was given a receipt showing $10.25 for dues and the remainder cover- mg the fee in transferring from Local 302. On this day, March 4, he was registered at the hiring hall and dispatched to a job by Fagundes, and thereafter was able to obtain regular referrals from List A.6 The evidence adduced by Respondent p resents no clear contradiction of the essentials of Brooks testimony. Fa- gundes testified that he first saw Brooks in March at the time his transfer to Local 70 was approved. (Respondent's attorney) Now, you heard him testify that he had conversations with you in November and January and February, I believe; was that correct? (Fagundes) It could be, but I don't remember. I talk to a lot of people.7 s s s s Q. Can you testify whether you have ever told Mr. Brooks that he had to be a member to be dispatched out of Local 70's hiring hall? A. I don't remember. Q. Is that a statement that you make to people who come in the hiring hall ordinarily? A. Ordinarily, no.$ Concerning their conversation on February 4, Business Agent Nunes testified that Brooks said he had a steady job with Navajo Freight, not Sea Land. He told Brooks, on the question of transferring from Local 302, that he could fill out an application for screening by the executive board, which meets once a month. He denied telling Brooks he could not register for work unless he was a member of Local 70-(which was not Brooks' testimony). Respondent pro- duced no other evidence, but offered Brooks' affidavit 9 to show, for the purpose of impeachment , alleged inconsisten- cies with Broo`ks' testimony concerning the number of years he was a nember of Local 302, and the number of times and the dates he appeared at the Local 70 hiring hall. With respect to his membership in Local 302, it is apparent that Brooks was confused by the questions in the cross -examina- tion, which were related to his most recent employment with Safeway Stores . As to the dates he visited the hiring hall, his memory was admittedly unclear ; and moreover, specific conflicts were not demonstrated on the record, while afford- ing the witness an opportunity for explanation.t° In any case, I find the discrepancies, which concern only collateral matters, are not of a critical character as would impair Brooks' essential credibility. B. Findings It is clear and conceded that Brooks was at all material times qualified for the preferential List A by reason of his employment in the prescribed area for more than 1 year. And I can entertain no doubt that he was not registered on any list, A or B, at Local 70's hiring hall prior to March 4. 5 Since the time he took work with the post office , Brooks held a withdraw- al card from Local 302. s As of the hearing date, he had not formally received his notice of mem- bership in Local 70, and his tender of dues, in May, was not accepted on the ground that he was not yet a member 7 He indicated that he dispatches from 300 to 600 people in the course of a day 8 As to applicants for List B, Fagundes elsewhere testified that he has told them " I'll sign you, but there's no chance of getting out. I got to get our members out first . signed up on the A list." (Emphasis added.) 9 Given by Brooks to a Board agent on February 26. 10 E g., Newport Window Cleaning Co, 170 NLRB No 131, In 2. TEAMSTERS, LOCAL 70 The question then is whether the detailed testimony of Brooks concerning his several visits to the hiring hall and attempts to be listed were made up out of whole cloth. On February 4, he met with the Business Agent Nunes obvious- ly in search of employment through Local 70. On February 26 he gave the Board his affidavit and filed the charge herein. On March 3 his transfer from Local 302 was appar- ently approved, and on March 4 he paid the requesteddues and fees to Local 70. On the very same day, he was reg- istered by Dispatcher Fagundes and was able then and thereafter to obtain job referrals from the hiring hall. In all these circumstances, as against the qualified denial of Fa- gundes that he had seen Brooks prior to March 4, I am persuaded to credit, in substance, the testimony of Brooks. Respondent does not assert, nor would I find on the evidence, that Brooks was refused referral through its exclu- sive hiring system on the ground that jobs were unavailable. Further, while Brooks was closely questioned on cross-ex- amination concerning his knowledge of the rules posted in the hiring hall, Respondent makes no defense based upon any alleged disregard or breach of such rules." Accordingly, it is my conclusion that Respondent failed and refused to register Brooks and to refer him for employ- ment because he lacked membership in Local 70, and there- by violated Section 8(b)(2) and (1)(A), as alleged.12 CONCLUSIONS OF LAW 1. By refusing to refer Emery S. Brooks for employment to employers, with whom it had exclusive hiring hall agree- ments, because Brooks was not a member of Local 70. Re- spondent has caused or attempted to cause employer discrimination in violation of Section 8(a)(3), and has there- by engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) a rid (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. -It shall be recommended that Respondent notify Califor- nia Trucking Association, and other employers with whom it has exclusive referral agreements, in writing, with a copy to Brooks, that it has no objection to Brooks employment, and will not refuse to register or refer Brooks, or any other job applicant, for employment through its hiring half proce- dures because he lacks membership in Local 70. It shall also be recommended that Respondent make Brooks whole for any loss of earnings suffered by reason of the discrimination against him, with backpay computed in accordance with the formula in F. W. Woolworth Company, 90 NLRB 289, and with 6-percent interest, as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclu- sions of law, and upon the entire record in the case, it is recommended that Respondent, Brotherhood of Teamsters 11 Fagundes was also examined by Respondent on the content of such rules. Pursuant to the Trial Examiner's request at the hearing that a copy of these rules be submitted in evidence, Respondent sent in a document pur- 307 & Auto Truck Drivers Local No. 70, International Brother- hood of Teamsters, Chauffeures, Warehousemen & Helpers of America, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to refer Emery S. Brooks , or any other appli- cant, for employment to employers within its territorial ju- risdiction because of nonmembership in Local 70, or any other union. (b) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed in Sec- tion 7 of the Act. 2. Take the following affirmative action designed to effec- tuate the policies of the Act: (a) Make whole Emery S . Brooks for any loss of pay he may have suffered because of the discrimination practiced against him, in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Notify California Trucking Association and other em- ployers with whom it had exclusive referral agreements, in writing, with a copy to Emery S . Brooks, that it has no objection to Brooks' employment, and that it will not refuse to register or refer Brooks, or any other job applicant, through its hiring hall procedures because he lacks member- ship in Local 70. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records pertaining to employment through its hiring halls, and all other records necessary and useful in determining the amount of backpay due. (d) Post at its business office , hiring halls, and meeting places, copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's official representative , 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 custom- arily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision and Recom- mended Order, what steps Respondent has taken to comply herewith.14 porting to contain the posted rules, but without indicating General Counsel's agreement or stipulation . On this described basis, the document has been inserted in the record as Resp. Exh. 4. It is noted in passing that Fagundes' version of the posted rules vanes in many respects from Resp Exh. 4 12 E.g, Local 357, International Brotherhood of Teamsters, et al v . N L.R.B. (Los Angeles-Seattle Motor Express), 365 U.S. 667. N L R B v International Brotherhood of Electrical Workers, Local Union 340, AFL-CIO (Walsh Con- struction Co ), 301 F 2d 824 (C.A. 9); International Brotherhood of Electrical Workers, AFL-CIO, Local 648 (Foothill Electrical Corporation), 182 NLRB No 4. 13 In the event no exceptions are filed as provided by Section 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 Section 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 Real- tions 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 " 14 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 " 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL JOB APPLICANTS USING OUR HIRING HALL, WHETHER OR NOT MEMBERS OF BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS LOCAL NO. 70, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government employment through our hiring hall procedures be- cause he lacks membership in Local 70. BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS LOCAL No. 70, INTER. NATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA (Labor Organization) Dated By (Representative) (Title) WE WILL NOT refuse to refer Emery S. Brooks, or any other job applicant, for employment to any employer because he is not a member of Local 70. WE WILL make Emery S. Brooks whole for any loss of pay he may have suffered because we have refused or failed to refer him to jobs. WE WILL notify California Trucking Association and other employers with whom we have exclusive referral agreements, in writing, that we have no objection to the employment of Emery S. Brooks , and we will not refuse to register or refer him, or any other job applicant, for This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197.