Encinal Terminals

362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Encinal Terminals and Gary D. Cose Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and Gary D. Cose. Cases 20-CA-6460 and 20-CB-2329 September 27, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On June 16, 1971, Trial Examiner Irving Rogosin issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent Union filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a reply brief. 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 proceeding 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 the proceeding and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner directed to the Respondent Employer and Respondent Union and hereby orders that the Respondents, Encinal Termi- nals, Alameda, California, its officers, agents, succes- sors, and assigns, and Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, its officers, representa- tives, and agents, shall take the action set forth in the Trial Examiner's recommended Order, as herein modified. i The Respondent Union has excepted to certain credibility findings made by the Trial Examiner it is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 363 (C A 3) We have carefully examined the record and find no basis for reversing his findings 2 The General Counsel filed a limited cross-exception to the Trial Examiner's apparent oversight in failing to direct Respondent Union to notify Respondent Employer that Respondent Union will not discriminate against "employees" as well as "job applicants" (TXD, recommended Order, 2(b)(l)). The Board has considered the text of the Order and hereby modifies said Order by adding "or any other employee" after "applicant" in the recommended Order under 2(bxl). DECISION OF TRIAL EXAMINER STATEMENT OF THE CASE IRVING ROGOSIN, Trial Examiner: The consolidated complaint, hereinafter referred to as the complaint, issued December 24, 1970, alleges that about September 16, 1970, Respondent Union attempted to cause and caused Respondent Employer to terminate the employment of Gary D. Cose for reasons other than his failure to tender initiation fees and periodic dues uniformly required as a condition of acquiring or retaining membership in Respon- dent Union, thereby engaging in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) and Section 2(6) and (7) of the Act; and that on about said date, Respondent Employer discharged said Cose because of his lack of membership in Respondent Union, thereby engaging in unfair labor practices within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act.' Respondent Union's answer admits the procedural and jurisdictional allegations of the complaint; the occupational titles and agency of the persons alleged to be supervisors or agents of Respondent Employer; the descriptive titles, but not, in all respects, the agency of the persons alleged to have been acting on behalf of Respondent Union; and generally denies the remaining allegations of the complaint. Respon- dent Employer, likewise, admits the procedural and jurisdictional allegations of the complaint; the occupational titles and agency of the persons alleged to have been agents of and acting on behalf of Respondent Union; the occupational titles of the persons named in the complaint as supervisors and agents of Respondent, while denying the remaining allegations with respect thereto ; and denies generally the remaining allegations of the complaint. Hearing was held on February 26 and March 3 and 19, 1971,2 at San Francisco, California, before the duly designated Trial Examiner. All parties, save the Charging Party, were represented by counsel, were afforded full opportunity to be heard, to examine and cross-examine i The charge against Respondent Union was filed and served on September 21, 1970; the original charge against Respondent Employer was filed and served on December 3, 1970, and the first amended charge against said Respondent was filed and served on December 21, 1970 Designations are as follows the General Counsel, unless otherwise stated, his representative at the hearing , Respondent Union, the Union, or Local 70, Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent Employer, the Employer, or the Company, Encinal Terminals; the Charging Party, Gary D Cose, an individual, the National Labor Relations Act, as amended, 61 Stat 136, 73 Stat 519, 29 U S C Sec 151, et seq, the Act; the National Labor Relations Board, the Board Unless otherwise stated, all events occurred in 1970. 2 Unopposed continuances were granted Respondent Union due to illness of necessary witnesses 193 NLRB No. 53 ENCINAL TERMINALS witnesses, to introduce evidence relevant and material to the issues, to argue orally and to file briefs and proposed findings of fact and conclusions of law. At the outset of the hearing, Respondent Union moved to dismiss the com- plaint with regard to it on the ground that the complaint failed to state a violation of the Act, in that it did not allege the existence during the period involved, of a union- security agreement which the Union had sought to enforce. At the suggestion of the Trial Examiner, the General Counsel made an opening statement setting forth the facts upon which he relied in support of the allegations of the complaint. Respondent Union, nevertheless, pressed its motion to dismiss on the grounds stated. The motion was denied. The parties declined to argue orally but requested leave to file briefs, and were granted to and including April 23, 1971. The General Counsel's brief, and a letter submitted by Respondent Employer in lieu of brief, were timely filed. Respondent Union's brief, postmarked April 23, though not received until April 26, 1971, has been treated as timely filed. No proposed findings of fact or conclusions of law have been filed by any of the parties. Upon the entire record in the case, the resolution or reconciliation of conflicting testimony, the appearance and demeanor of the witnesses, and the briefs, which have been carefully considered, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The complaint alleges, and Respondents' answers admit, that, at all times material herein, Encinal Terminals, Respondent Employer herein, has been a California corporation with an office and place of business located in Alameda, California, engaged in operating a warehouse and transporting freight by truck. The complaint also alleges, and Respondents' answers admit, that, at all times material herein, Respondent Employer has been a member of California Trucking Association, herein called C.T.A., a nonprofit California corporation, and employer association, which, at all times material herein, has had as members employers engaged in the business of transporting freight by truck in interstate commerce, and has, among its functions, bargained collectively with Respondent Union on behalf of its employer-members, including Respondent Employer. The complaint further alleges, and Respondents' answers admit, that, during the past year, in the conduct of their business operations, the employer-members of C.T.A. received gross revenues in excess of $50,000 for transport- ing freight in interstate commerce. Finally, the complaint alleges, Respondents' answers admit, and it is hereby found, that, at all times material herein, C.T.A. and its employer-members, including Respondent Employer, have constituted an employer engaged in commerce and in operations affecting com- 3 As augmented by Joint Council No 7 (including Local Union 70, Respondent Union herein) Local Pickup And Delivery Supplemental Agreement, combined in booklet form 363 merce within the meaning of Section 2(6) and (7) of the Act, and, it is found, within the Board's jurisdictional standards. II. THE LABOR ORGANIZATION INVOLVED Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America , Respondent Union, is, and at all times material herein has been , a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Causing or Attempting to Cause Discrimination in Regard to the Hire and Tenure of Employment of Gary D. Cose by Respondent Union; Discrimination by Respondent Employer in that Regard 1. Sequence of events Prior to July 20, 1970, Gary D. Cose, a member of Teamsters Local 78 (not to be confused with Local 70), had been employed as a truckdriver by Queen Trucking Company, a carrier handling parcel deliveries as a subcontractor of Respondent Employer. This subcontrac- tor was not under contract with the Union. Respondent Employer, however, as a member of C.T.A., was a party to a collective-bargaining agreement with the Union , covering the Company's flatbed and container divisions. The collective-bargaining agreement , generally referred to as the 1967-70 National Master Freight Agreement,3 covered the period April 1, 1967, to and including March 31, 1970, and provided for automatic renewal annually thereafter in the absence of specified notice of termination or desire to negotiate modifications . The Master Agreement provided for union security ; the supplemental agreement, with its articles numbered consecutively with those of the Master Agreement, following the signatories to that agreement, provided for an exclusive, nondiscriminatory, hiring hall, with preferential hiring based on experience and length of employment in the geographical area covered by the Local Hiring Hall, at least 1 year for eligibility on "List A," those not meeting the eligibility requirements for that list being registered on "List B," registrants being dispatched in the order of notification to the dispatcher of their availability. Under the hiring procedure, an employer was permitted to request a driver by name only if he was registered on the "A" list in the hiring hall in the geographical area in which he was to be employed , if he had previously been employed by that employer, and if he were available for work . The record does not affirmatively establish whether notice of termination or intention to negotiate modifications was actually given. The General Counsel contends , in his brief, that the 1967-70 Master Agreement expired on March 31, 1970, although the parties stipulated at the hearing that the hiring provisions of that agreement were in force and effect at all times material in this proceeding.4 4 Business Representative Lawrence H. Dias also testified that the contract was extended, particularly with regard to the hiring, union security and grievance procedures, by mutual consent of the Union and Patrick M. (Continued) 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Of course, if the 1967-1970 contract had expired, and had not, as Dias contended, been orally extended, at least, as to the applicable hiring and grievance procedures, pending the negotiation of a new agreement, Respondent Union could not have relied on the union-security and hiring hall procedures as a defense to the demand for Cose's discharge, assuming that such a demand was actually made. In view of the stipulation of the parties at the hearing, however, (Respondent Employer joined in the stipulation only to the extent that article 38 (Hiring Procedure) is identical with article 40 as it appears in the 1970-73 Master Agreement), it must be concluded that the hiring provisions of the expired contract were in force and effect at the time of Cose's termination. Turning, then, to the events culminating in Cose's termination. Early in July 1970, the Company took over the parcel delivery service which it had formerly subcontracted to Queen Trucking Company. Soon afterward, Brosnan notified the Union that the Company would require some ten drivers; that there was one driver, who had previously worked for Queen, whom it wished to retain; and that it needed the others to fill the remaining positions. Brosnan discussed this with LeRoy D. Nunes and Lawrence H. Dias, both business representatives of Respondent Union.5 Cose was the only driver in the Company's employ who was not a member of Local 70, although, as he had told Brosnan, he had a withdrawal card from Teamsters Local 78. According to Brosnan, neither of the union representa- tives made any comment. Sometime in August, in a telephone conversation with Brosnan, Nunes told him that the Union was aware that the Company had in its employ a nonunion driver, referring to Cose, and that it should "get rid of him." In another telephone conversation during the following week, Dias told Brosnan that the Union was aware that the Company was employing a nonunion driver and repeated what Nunes had said in the earlier conversation about dismissing Cose. During this same period, the subject was again brought up at a meeting at the union office, while Brosnan and another company representative were exploring with the union representatives the type of union contract under which the parcel delivery aspect of the operation would be conducted, and the seniority status of the new employees in relation to the employees engaged in the Company's other operations. The union representatives asserted that the Company was in violation of the hiring procedure of the contract, and that it was liable in damages to the Union. The union representatives denied, however, that anything was said to the effect that the Company would have to dismiss Cose because he was not a member of the Union. Early in September, in another conversation, Nunes repeated what he had previously told Brosnan. Brosnan Brosnan, the Company's manager of labor relations (later manager of operations at Encinal Terminals ), sometime between July 1 and December 31, 1970, although he could not be specific in relation to the date of Cose's termination Brosnan did not testify on the subject of the alleged oral extension of the contract The record discloses that a new National Master Freight Agreement was entered into, covering the period 1970-73, but Local 70 appears to contend that it is not bound by it, a controversy which is the subject of a separate unfair labor practice proceeding, in which the Union is charged with violation of Sec 8(b)(3) (Case 20 -CB-2242, now pending before another Trial Examiner) The record here discloses, asked Nunes whether there was any chance of Cose's being admitted to union membership. Nunes said that there was not, "because of economic conditions," and added that the Union was not even admitting sons of members. Early in August, also, a week or two after Cose had started working for the Company, John Cogland and Frank Serrate,6 warehouse supervisors, spoke to him on three or four separate occasions, once while both supervisors were together. On the first occasion, Cogland told Cose that the Company operated under a union shop, and that in order for him to remain employed he would have to join Teamsters Local 70. A week or 10 days later, in a conversation near the loading dock at the warehouse, Serrate repeated, in substance, what Cogland had said, adding that he wanted him "to go down and take care of it right away." Serrate said that he would have to join the Union, as he had already been told, because the Company was "being pressured by the Union" for him to join. Consequently, Cose went to the union hall on three or four occasions during the month of August, the first time, a day or two after his first conversation with Cogland. On each occasion, he spoke to a clerk in the office. Cose asked her if he could transfer from Teamsters Local 78, in which he was a member, to Teamsters Local 70. She told him that the Union had too many drivers who were out of work, and that it was not accepting any transfers at that time. On each successive occasion, he received substantially the same response. Finally, late in August, when he repeated his request for a transfer, she told him, at first, that the Union was not accepting any transfers. Cose explained that, unless he could obtain a transfer, the Company would terminate him because all the remaining drivers were union members. She expressed regret, but told him that a transfer was out of the question. After some further conversation, however, she gave him a request for transfer form to complete, and told him to appear before the Executive Board at 10 o'clock a.m., September 15, 1970, and "tell [his] troubles" to that body. On September 14, the day before he was scheduled to appear before the executive board, when Cose returned to the warehouse after completing his deliveries for the day, Supervisor Serrate told him that Brosnan wanted him to call him. Cose returned the call, and Brosnan told him that he regretted that the Company would have to lay him off unless he could join the Union because the Company was being pressured by the Union due to his lack of membership in Local 70. Cose told him that he was scheduled to appear before the Executive Board next day to discuss his transfer. Brosnan expressed approval, and told Cose to let him know the outcome. Serrate, who was present while Cose was on the phone to Brosnan, told him to take the next day off and complete his union business. The screening committee of the executive board meets on however, that Respondent Employer has adjusted the wage scales in conformity with that agreement, although, according to Dias, the Employer did so "unilaterally " This Trial Examiner has taken cognizance of the 8(b)(3) unfair labor practice proceeding only to the extent hereinafter mentioned. (See fn 16 ) 5 According to Dias, he represented the employees at the general trucking facility of the Company, while Nunes represented the employees in the container division 6 Neither of these men testified. ENCINAL TERMINALS 365 the third Tuesday of every month. Applicants for membership or transfer are notified by the office girl of the time for their appearance. A master list is prepared, setting forth the names of all applicants for membership, transfers from other locals, reinstatements, and withdrawals, for the use of the screening committee. Each of the various categories is listed under the applicable heading. Opposite the names of each person appearing on the list is the name of the employer, if any, and, in the case of applicants who are sons of members, a designation to that effect. After examining the applications, the committee calls the applicant, and questions him as to whether he is employed, if so, whether he has been employed for more than 30 days, and then approves or disapproves the application. Where the applicant has been employed, the business agent servicing that employer's drivers is required to note on the application whether the applicant is acceptable. If the notation is favorable, and the screening committee approves the application, the person is directed to return the following day to pay all assessments, initiation, or transfer fees. In September, when Cose formally requested a transfer, it was the committee's policy, if the application bore the notation, "Hall," indicating that the applicant expected to work out of the hiring hall, to tell him that the Union was not accepting applications because of adverse employment conditions, and to suggest that he return at some later date to inquire whether the situation has improved. The master list is posted at union headquarters in advance of the meeting of the screening committee, and, under a union directive, business agents are required to check the list so that they may learn who is scheduled to appear. If, after investigation, according to the Union, the business agent ascertains that the applicant obtained his job without going through the hiring hall, the screening committee may reject his application even though the committee had previously approved it. On September 15, Cose reported at union headquarters. The screening committee, consisting of Stanley Botehlo, vice president of Local 70, acting as chairman, and Richard Durossett and Arthur Soto, committee members, conduct- ed its business in the auditorium of the union headquarters. Cose's name did not appear on the committee's master list, either among those listed as transfers or applicants. When the committee had completed its consideration of all the persons whose names appeared on the master list, it was observed that Cose was seated in the auditorium. Asked what he was doing there, he said that he had an application for a transfer on file. He was told that because his name had not appeared on the master list, his request for transfer card was not in the committee's files. It was suggested that he investigate this at the union office. Cose went to the office, where he obtained his card, which he submitted to the committee.? One of the committee members, probably 7 The request for transfer card, dated August 17, 1970, bore Cose's name, address and vital statistics, including social security number, the name and address of his employer (Encinal), his occupation, a notation of paid-up membership in Local No 78 and, opposite the word "Voucher," the words "Tent [tentative ] OK J M," the latter initials identifying James R. Muniz, president of Teamsters Local No 70 On the same line appeared the signature, "L Nunes" and, in the lower right hand corner, diagonally across the line designated , "Action of Executive Board," the word "Hold," with the initials "S. B.,' for Stanley Botehlo 8 According to Cose's uncontradicted testimony, a member of the Durossett, according to Cose, thereupon added Cose's name at the head of the list of transfers, with the name of his employer, Encinal, alongside. Botehlo testified that the handwritten notations, "Tent. OK" and the initials, "JM," as well as the signature, "L. Nunes" were on the card when it was submitted to the screening committee. He explained that before the committee convened President Muniz had notified him that there was some question regarding Cose's application for transfer, instructed Botehlo to put a "hold" on it until Muniz reached Business Representative Nunes, and that Botehlo made the notation, "Hold." The committee asked Cose whether he was employed at Encinal Terminals. Cose acknowledged that he was. One of the committee members asked Cose whether he had any idea why a "hold" had been placed on his card. When Cose said that he did not, he was told to go to the office and find out from Nunes. Cose went to the office but was told Nunes was not in that day. Cose returned to the committee and reported this. After discussing the matter among them- selves, Durossett proposed that, since Cose had been working at Encinal for at least 30 days, the committee process and approve Cose's request for transfer notwith- standing the "hold" on the card. With that, Durossett wrote the words, "OK-9/ 15/70," and signed his name on the card underneath the words "Action of Executive Board." Cose was then told to return the following day to pay the necessary fees and dues .8 Cose then left and reported for work at Encinal later that day. Next morning, Cose returned to the union hall and paid a total of $41.50, for which he was given a receipt .9 When he asked for his union dues book, he was told that he would receive it in the mail. Cose worked the remainder of that day. When he returned to the terminal after making his deliveries, he received a call from Brosnan, notifying him that he was to be laid off because he did not have his union book. Cose told Brosnan of his appearance before the screening committee, informed him that his transfer had been approved, that he had paid his dues that morning, and that he had a receipt to show for it. Brosnan said that he was sorry but that Cose could not work until he had his union book. Serrate, who was present while Cose was talking to Brosnan, told him the same thing, stating that the Company would have to let him go until he "got the matter of the Union squared away." Next morning, September 17, Cose again went to union headquarters and asked the clerk for his dues book. She then told him that the Union had sent him a registered letter, stating that a mistake had been made, and that the Union would refund his fees. She also told Cose that he would have to see one of the business agents, either Nunes or Dias. As Nunes was out of the office, Cose spoke to Dias, committee, whom he could not identify by name, after welcoming him to Teamsters Local 70, told him that he could come in and pay his dues and fees, but added, "If you are lying to me,-" when Cose interjected that he was not lying about working for Encinal Another committee member remarked that he was familiar with the case, and that Cose did, indeed, work for that Company. 9 The receipt, dated "9-16-70," No 34669 and B, covered $ 12 dues, $9 on account of initiation fees, $20 for administrative and legal fees , and $.50 for transfer fee The receipt number was noted at the bottom of the request for transfer card. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and asked him if he knew why the Union wanted to refund his money, pointing out that his transfer had already been approved. Dias told him that someone had made a mistake, that there were too many other Teamsters Local drivers out of work, and that he should not have been hired. Cose told Dias that he had been out of the Armed Services only a short time, that he had found the job himself, and saw no reason why he should be required to wait around because others were out of work. Dias told him that if he had been a union member at the time, he could have been fined $50 for procuring the job by himself, and that that was what the Union was for.10 Cose retorted that he had no intention of giving up his job merely because union members were out of work while he was working. Dias rejoined that if that was his attitude, he would make sure that Cose did not "last very long," even if he succeeded in becoming a member of the Union.1' During the conversation, Dias also stated that Encinal could be fined a day's wages for every day that Cose had worked for Encinal Terminals. Cose returned to the terminal, where he spoke to Brosnan, showed him his receipt from the Union, and told him that he had been refused a union book. He told Brosnan that the Union wanted to refund the money he had paid but that he could not understand why he should not be able to work as long as he had paid the necessary fees. Brosnan informed Cose that the Union had notified him that Cose could not work for the Company without a union book. Soon afterward, Cose received a letter from the Union, sent by registered or certified mail, dated September 16, 1970, signed by Muniz, as president of the Local, as follows: RE: Pending Transfer from Teamsters Local 78 Dear Brother Cose: Please contact this office at your earliest conven- ience, in order that we may refund monies deposited with this Local Union, for transfer from Local 78, in the amount of $41.50. This money is being refunded by order of the Executive Board as we cannot accept your transfer at this time. Cose has not worked for the Company since and, as far as the record discloses, had not applied for, and had not received his refund as of the time of the hearing. Contentions of the Parties The General Counsel contends quite simply that Respondent Union caused Respondent Employer to terminate Cose's employment because he was not a member of the Union, and that Respondent Employer yielded to the Union's demand based on such nonmember- ship. Respondent Employer rested at the conclusion of the General Counsel's case, without offering any evidence, and does not deny that it discharged Cose at the Union's demand. The Company, in effect, concedes that it had no motive for terminating Cose's employment other than the Union's insistence upon such action because of Cose's lack of membership in the Union. For its part, Respondent Union contends that it objected to Cose's employment by the Company, allegedly in violation of the hiring procedure, and that it merely notified the Company that it had committed a breach of the contract, rendering it liable in damages . The Union denies that it demanded that the Company discharge Cose, and, inferentially contends that the business representatives had no authority to make such a demand.12 The chief conflict apses between the testimony of Brosnan, on the one hand, and Nunes and Dias, on the other. According to Brosnan, in his various conversations with these union representatives, they stated that they were aware that Cose was not a union member, and demanded that he be terminated for that reason. The union representatives, on the other hand, maintain that they merely told Brosnan that the Company had hired Cose in violation of the hiring hall provisions, and consequently, was liable for damages for every day that Cose continued to work, alluded to in the record as "run-around-pay." Brosnan categorically denied that any mention was made in any of these conversations that the Company was in violation of the collective-bargaining agreement, and liable in damages for breach of contract. Dias denied that he discussed the Cose matter with Brosnan in any telephone conversation but recalled that at a meeting with company representatives to consider grievances and other "problems," mention was made by the union business agents that the Company had hired a nonunion employee in violation of the contract, and that the Company was liable in damages for breach of contract.13 10 Dias testified that he was referring to the provisions of Art XII, sec. 2, of Local 70's bylaws ii Although Dias denied making this statement, he admitted this encounter with Cose, testifying that he told him that he had had no right to solicit his own job and that, if he had been a member of the Union at the time, he could have been fined for doing so According to Dias, this had been preceded by a heated exchange after Cose had created a disturbance with the girls at the counter Dias maintained that he merely told Cose that even if he were a union member, Dias would not tolerate abusive language toward the girls Cose's version of the episode appears more plausible and consistent with the otherwise conceded facts . Based on the demeanor of the respective witnesses , and with due consideration for their possible interest and bias, Cose's testimony has been credited i2 This contention, which stems from its claim this could be accomplished only by letter from the Union, does not relieve the Union of the consequences of the acts of its representatives It is clear that they were acting within the scope of their general authority See Section 2(13) of the Act See also International Longshoremen 's and Warehousemen 's Union, Cl O (Sunset Line and Twine Company), 79 NLRB 1487, 1509, United Brotherhood of Carpenters & Joiners of America, Local Union No. 2067, AFL-CIO, et a! (Associated General Contractors of America, Inc, etc.), 166 NLRB 532, 538-539 It will be recalled, moreover, that Dias testified that he represented the employees at the general trucking facility, while Nunes represented the employees in the container divisions of the Company's operations 13 Respondent has not indicated the precise language of the contract which provides for such damages, nor does a perusal of the hiring procedure reveal such a provision . The Company, however, has not challenged the existence of such liability and, although the contention has not been made , the subject-matter may have been encompassed in the blanket "past practices" provision of the contract incorporating practices existing between the parties established prior to July 1, 1961, except as modified by the instant contract. In any event, the existence or nonexistence of any provision for "run-around-pay" is not determinative of whether the union representatives actually made these statements to Brosnan In view of the latter's credible testimony, which had the effect of implicating the Employer in the commission of an unfair labor practice, ENCINAL TERMINALS 367 In another discussion with Dias during this period, on unrelated matters, Brosnan brought up the subject of Cose. Dias told him that if the parties could resolve their other problems, they would be able to solve the "Cose problem." Asked at the hearing what he meant by the remark, Dias testified, "He didn't belong to the Union." Under interrogation by union counsel, Dias testified ". . . my reference was that Cose had been hired in violation of the agreement and it's necessary for him to get into the Union, and I though [sic] we could work something like that out. We had to work out all of the problems we had with it" Asked whether he meant that if the other problems were resolved, Cose would be admitted to membership in the Union, Dias testified "I didn't say that he could. I thought we could work it out." The record leaves little doubt that the reason for Cose's termination was his lack of union membership. The Union's contention that, while it objected to Cose's employment solely because the Company had violated the contract by failing to utilize the hiring hall procedure, it at no time demanded that the Company discharge Cose appears wholly unrealistic. Whatever reliance the Union might have sought to place on this position is not supported by the evidence of the Union's conduct. The realities are that the Union sought to exclude Cose from membership in the Union by denying him a transfer because of lack of sufficient employment opportunities for its out-of-work members.14 This, however, was not the Union's position when it eventually accepted his request for transfer and arranged for his appearance before the screening commit- tee. It can scarcely be denied that the Union was aware, when he first appeared at the union office, that Cose was in Encinal's employ. On his last visit prior to his appearance before the screening committee, he specifically told the office girl that he would lose his job at Enctnal unless he could loin the Union. The Union was well aware then, or certainly at the time he appeared before the screening committee, that he had not only been employed by the Company for 30 days, but also that he had not been dispatched through the hiring hail.15 Moreover, despite the "hold" which had been noted on Cose's request for transfer card, and after an unsuccessful effort to locate Nunes to ascertain the reason for the notation, the screening committee approved his transfer, welcomed him into the local, and told him to return the following day to pay his dues and fees. It was only after Cose had paid the required dues and fees, President Muniz claimed, that he learned from Nunes that Cose had obtained his job directly from the employer, without resorting to the hiring hall, and that the Union rescinded his transfer and offered to refund his dues and fees. It is utterly improbable that the Union was not aware, or, by the exercise of the slightest diligence, could not have ascertained from its own hiring hall records, whether Cose had, in fact, been referred to the job or obtained it himself. Why Respondent Union should have found it necessary to rely on the business representative to find out whether Cose had solicited his own job has not been explained. This information was certainly available to the screening committee before it made its decision to approve Cose's transfer. This gives rise to the inference that the Union was well- aware of the circumstances under which Cose had obtained his job, and that it had decided, through its executive board or screening committee, to overlook the circumstances, and to admit him to membership, notwithstanding that the Company had bypassed the hiring hall provisions of the contract. One can only speculate as to the reason for the Union's change of heart, but it is not unreasonable to infer that the Union may have hoped to use the "Cose problem" to bring about a resolution of the Union's other problems. Thus, Dias' admission that he had told Brosnan that if the Union could "work out" all of its problems with the Company, he thought it could work out the problem of Cose's admission to membership in the Union. But, whatever the Union's motive in revoking Cose's transfer, it is clear that it was not for failure to tender his initiation fees or dues. Moreover, if the Union had objected to the hiring of Cose because he had not been hired through the hiring hall, it is evident that it waived this requirement or decided to overlook it when, with full knowledge that the Company had disregarded the hiring procedure, the Union approved Cose's transfer. The Union's contention that, despite the fact that it was concerned with the Employer's compliance with the hiring procedure, it at no time demanded that the Employer discharge Cose is wholly unconvincing and unrealistic. It is significant that the Union at no time sought to lodge a grievance against the Employer for alleged violation of the hiring provision or to assert a claim for damages to which the Union claimed to be entitled for such breach. Instead, it resorted to the more direct course of bringing about Cose's discharge. It is, therefore, found that Respondent Union demanded that Respondent Employer discharge Cose for reasons other than his failure to tender initiation fees and union dues, thereby violating Section 8(b)(2) and (1)(A) of the Act. As to Respondent Employer, it is, of course, no defense that it capitulated to the Union's demand, where it knew or should have known that the demand was for reasons other than the employee's failure to tender initiation fees and union dues. there would appear to be no motive for Brosnan to have denied the statements which the union representatives claimed they made. Moreover, if the Union contended that it was acting under a lawful hiring procedure, it is unlikely that it would have hesitated to demand Cose's discharge since, in the Union's view, he had been hired in violation of these provisions, instead of merely charging the Company with breach of contract, and threatening it with a claim for damages As the Union steadfastly maintained, it was chiefly concerned with securingjobs for its out-of-work members For all the above reasons, Brosnan's version of these conversations has been credited 14 Asked whether prevailing economic conditions had anything to do with the refusal to accept Cose into membership in Teamsters Local 70, Nunes testified, "Right now at the present time we've got approximately 1,200 to 1 ,500 men not working in the Hiring Hall So it's rather unfair to accept someone other than just taking the dues because there is just no work available unless they are hired through the proper procedure at the Hiring Hall " 15 It will be recalled that after the Company took over the parcel delivery operation, Brosnan notified the Union that the Company would need 10 drivers, I of whom it had already engaged, and that, so far as the record discloses, the Union made no protest. There is also a suggestion in the record that the Company sought to negotiate a separate contract with the Union covering parcel delivery drivers, but the issue of whether any existing contractual relations applied to these drivers was not raised in this proceeding. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the Board has held: ... in the ultimate analysis, it is the employer, and only the employer, who controls the hiring and discharge of his employees . Recognizing this, this Board and the courts have frequently held that it is the duty of an employer to resist the usurpation of his control over employment by any group that seeks to utilize such control for or against any labor organization , and that the Act affords no immunity because the employer believes that the exigencies of the moment require that he capitulate to the pressures and violate the statute. " [Case cited.] Acme Mattress Company, Inc., etc., 91 NLRB 1010, 1015. See also H. Milton Newman, An Individual d/b/a H. M. Newman, etc., 85 NLRB 725, 729, and cases cited at In. 15. It is, therefore, found that, by requiring Respondent Employer to terminate Cose's employment because he was not a member of the Union, especially after having first approved his transfer, and subsequently rescinding that action, Respondent Union has attempted to cause and has caused an employer to discriminate against an employee in violation of Section 8(a)(3), and has discriminated against an employee with respect to whom membership in a labor organization has been denied or terminated on some ground other than his failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership , thereby violating Section 8(b)(2) and (1)(A) of the Act. It is further found that, by acceding to Respondent Union's request, with full knowledge that the employee had been denied membership in the Union for reasons other than his failure to pay or tender the periodic dues, Respondent Employer has discriminated in regard to the hire and tenure of employment of an employee to encourage membership in a labor organization , thereby engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act.16 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with Respondent Employ- er's operations described 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 i6 Prior to the close of the hearing, the General Counsel offered in evidence a copy of the complaint against Teamsters Local 70, the Union here, issued June 9, 1970, alleging violation of Sec 8 (b)(3) and ( 1)(B) of the Act, by refusing to accept and be bound by the terms of a National Master Freight Agreement, effective since about April 3, 1970. (Case 20 -CB-2242) Also offered in evidence was written authorization by Encinal Terminals, Respondent Employer here, to the California Trucking Association to represent it in its collective bargaining In addition , the General Counsel offered in evidence copies of excerpts from the proceedings at the hearing in that matter, consisting in the main of an opening statement by counsel for Teamsters Local No 70 (not counsel here), in which the Union purportedly asserted the position that there was no collective -bargaining agreement in force between the Union and California Trucking Association (of which Encinal is a member ) Although stipulating to the authenticity of the documents , Respondent objected to their admissibility on the ground of relevance and materiality Counsel for the Union there contended at one point that "there is no collective-bargaining agreement in existence, that there is no signed document" and that "there is no written labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) and that Respondent Employer has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, it will be recommended that said Respondents cease and desist from their unfair labor practices and take certain affirmative action designed to effectuate the policies of the Act. It will also be recommended that Respondent Employer be ordered to offer Gary D. Cose reinstatement to his former job or, if that job no longer exists , to a substantially equivalent position, without prejudice to his seniority or other rights and privileges . It will also be recommended that Respon- dent Union notify Respondent Employer in writing with a copy to said Cose, that Respondent Union will not discriminate against him or any other job applicant in selection or referral for the employment through its hiring hall procedures because of his nonmembership or affilia- tion with said Respondent Union , and that it has no objection to his employment by Respondent Employer. It will be further recommended that Respondent Union and Respondent Employer jointly and severally 17 be ordered to make said Cose whole for any loss of earnings he may have sustained by reason of the discrimination against him by paying him a sum of money equal to that which he normally would have earned as wages from the date of discrimination against him on September 16, 1970, to the date of the offer of reinstatement less his net earnings during such period . Respondent Union's liability for backpay shall terminate 5 days after its notification to Respondent Employer that it has no objection to the employment of said Cose , as provided above. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. The discriminatory conduct in which Respondents have engaged regarding the hire and tenure of employment of an employee strikes at the very essence of the Act , and it will therefore be recommended that the Board enter a broad cease and desist order.18 Upon the basis of the foregoing findings of fact and upon document that can be produced ," and that "if there is such an agreement of any nature or kind whatsoever that it is not binding on Local 70." Counsel also raised the issue as to which employers were a part of the multi-employer unit; '[i ]f indeed there is a multi-employer unit." Ruling on the admissibility of these documents having been reserved at the hearing, they are now received for the limited purpose of showing any inconsistency in regard to the actual existence of a collective -bargaining agreement binding upon Respondent Employer and Respondent Union at the time of the action taken against Cose. In view of the findings already made, however, it is unnecessary to resolve this issue , and no finding is made as to whether the Union is bound by the 1970-73 National Master Freight Agreement, an issue pending before the Trial Examiner in the other proceeding iT See Acme Mattress Company, etc, 91 NLRB 1010, and cases cited is N LR B v. Entwistle Manufacturing Co, 120 F.2d 532 (C A. 4), May Department Stores v N L R B, 326 U S. 376 ; Bethlehem Steel Co v N L R B , 120 F 2d 641 (C.A .D C.), A. J Krajewski Manufacturing Co, Inc, 180 NLRB No. 173 ENCINAL TERMINALS the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Encinal Terminals, a California corporation, with its place of business in Alameda, California, Respondent Employer herein, is, and at all times material herein has been, an employer engaged in commerce and a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and thejurisdictional standards of the Board. 2. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent Union herein, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Gary D. Cose on September 16, 1970, and thereafter failing and refusing to reinstate him because he was not a member of Respondent Union, Respondent Employer has discriminated in regard to the hire and tenure of employment of an employee to encourage membership in a labor organization thereby engaging in unfair labor practices within the meaning of Section 8(a)(3) and has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7, thereby violating Section 8(a)(1) of the Act. 4. By requiring Respondent Employer to terminate or discharge Gary D Cose because he was not a member of Respondent Union, Respondent has attempted to cause and has caused an employer to discriminate against an employee in violation of Section 8(a)(3) of the Act, and has thereby restrained and coerced an employee in the exercise of rights guaranteed in Section 7, thereby violating Section 8(b)(2) and (1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 19 ORDER A. Encinal Terminals, of Alameda, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from. (a) Encouraging membership in Brotherhood of Team- sters and Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization of its employees by terminating or discharging any of its employees or discriminating in any other manner in regard to their hire or tenure of employment or any terms or 19 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 20 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 369 conditions of employment, except in accordance with the proviso to Section 8(a)(3) of the Act. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action, which it is found is necessary to effectuate the policies of the Act: (a) Offer Gary D. Cose immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Post at its warehouse and offices in Alameda, California, copies of the attached notice marked "Appendix A." 20 Copies of said notice to be furnished by the Regional Director for Region 20, shall, after being signed by a duly authorized representative of Respondent Employer, be posted immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that such notices are not altered, defaced, or covered by other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent Employer has taken to comply herewith.21 B. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, representatives, and assigns, shall: 1. Cease and desist from: (a) Requiring, instructing, or inducing Respondent Employer, its agents, successors, or assigns to terminate or discharge employees because of their lack of membership in Respondent Union, except in accordance with the proviso to Section 8(a)(3) of the Act. (b) In any other manner causing or attempting to cause Respondent Employer, its agents, successors, or assigns, to discriminate against its employees in violation of Section 8(a)(3) of the Act. (c) Restraining or coercing employees of Respondent Employer, its successors or assigns, in the exercise of their right to refrain from any of the concerted activities guaranteed by Section 7 of the Act. 2. Take the following affirmative action which it is found is necessary to effectuate the policies of the Act: (a) Notify Respondent Employer in writing, with a copy to Gary D. Cose, that Respondent Union has no objection to his employment by Respondent Employer, and will not discriminate against him or any other job applicant in selection for employment because he is not a member of 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 " 21 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Union or because he refrains from engaging in union or other concerted activities, except to the extent that the same may be permitted by the proviso to Section 8(a)(3) of the Act. (b) Post in conspicuous places, in its business office, hiring hall and meeting places, including all places where notices to its members are customarily posted, copies of the attached notice marked "Appendix B." 22 Copies of said notice, on forms provided by the Regional Director for Region 20, shall, after being duly signed by Respondent Union's authorized representative, be posted by it immedi- ately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Sign and mail sufficient copies of said notice to the Regional Director for Region 20, for posting by Respon- dent Employer at all locations where notices to employees are customarily posted, if said Respondent Employer is willing. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this decision what steps Respondent Union has taken to comply herewith.23 C. Encinal Terminals of Alameda, California, Respon- dent Employer, and Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, their officers, representatives, and agents, shall: (1) Jointly and severally make said Gary D. Cose whole for any loss of pay he may have suffered because of the discrimination against him by payment to him of a sum of money equal to the amount he normally would have earned as wages from September 16, 1970, the date he was discriminatorily discharged, to the date of Respondent Employer's offer of reinstatement and Respondent Union's notification to Respondent Employer, as provided above, less his net earnings during said period, loss of earnings to be computed in the manner set forth in the section entitled "The Remedy." (2) Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records, social security records, timecards, personnel records and reports of Respondent Employer and all referral, dispatching, and hiring hall records, of Respon- dent Union, and all other records necessary or useful to determine or compute the amounts of backpay due if any. (3) Notify said Gary D. Cose, if he is presently serving in the Armed Forces of the United States of his right to 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. It is further recommended that, unless on or before 20 days from the date of receipt of this decision, Respondent Employer and Respondent Union notify said Regional Director in writing that they will comply with the recommended Order, the National Labor Relations Board issue an order requiring each of said Respondents to take the aforesaid action. 22 See In 20 23 See fn 21 APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT encourage membership in Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organization of our employees, by terminating or discharging or in any other manner discriminating in regard to their hire or tenure of employment or any terms or conditions of employment, except as author- ized in the proviso to Section 8(a)(3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the right to refrain from any and all the concerted activities guaranteed them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in the proviso to Section 8(a)(3) of the Act. WE WILL offer Gary D. Cose immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. WE WILL jointly and severally, with the aforesaid Union, make said Gary D. Cose whole for any loss of earnings he may have sustained by reason of our discrimination against him in the manner set forth in the section of the Decision and recommended Order of the Trial Examiner entitled, "The Remedy." All our employees are free to engage in or refrain from engaging in union or concerted activities on behalf of the above-named Union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the amended Act. ENCINAL TERMINALS (Employer) Dated By (Representative) (Title) In the event Gary D. Cose is presently serving in the Armed Forces of the United States , notify him of his right to 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 is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days ENCINAL TERMINALS 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 556-0335. APPENDIX B NOTICE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government TO ALL: Members, Officers, Representatives , and Agents TO ALL: Employees of Encinal Terminals or applicants or registrants for employment and persons using our hiring hall whether or not members of Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America WE WILL NOT require, instruct or induce Encinal Terminals to discharge , terminate , or otherwise discrim- inate against its employees because they refrain from engaging in union or concerted activities on behalf of our Union , except in accordance with the proviso to Section 8(a)(3) of the Act. WE WILL NOT in any other manner cause or attempt to cause Encinal Terminals, its officers, agents, successors, or assigns to discriminate against its employees in violation of Section 8(a)(3) of the Act. WE WILL NOT restrain or coerce employees of Encinal Terminals, its officers, agents, successors, or assigns, in the exercise of the right to refrain from any and all of the concerted activities guaranteed them by Section 7 of the Act, except to the extent permitted by the proviso to Section 8(a)(3) of the Act. WE WILL, jointly and severally with the aforesaid Employer, make Gary D. Cose whole for any loss of 371 earnings which he may have sustained by reason of our discrimination against him , in the manner set forth in the section of the Decision and recommended Order of the Trial Examiner entitled, "The Remedy." WE WILL notify Encinal Terminals, in writing, with a copy to Gary D. Cose, that we have no objection to his employment, subject to the valid provisions of any collective-bargaining agreement between us and Enci- nal Terminals, to the extent authorized in Section 8(a)(3) of the Act. BROTHERHOOD OF TEAMSTERS AND AUTO TRUCK DRIVERS LOCAL No. 70, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) Dated By (Representative) (Title) In the event Gary D. Cose is presently serving in the Armed Forces of the United States, notify him of his right to reinstatement, upon application, in accordance with the Selective Service Act and the Umversal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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 556-0335.