Teamsters, Local No. 70

TEAMSTERS, LOCAL NO. 70 Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America (Sea-Land of California, Inc.) and James Reliford. Case 20-CB-2394 May 25, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On February 9, 1972, Trial Examiner James T. Rasbury issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel submit- ted a statement in support of the Trial Examiner's Decision and limited cross-exceptions requesting certain modifications of the recommended Order. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions. In its limited exceptions, the General Counsel urges the Board to broaden the Trial Examiner's recom- mended Order by requiring Respondent to cease and desist from unlawfully causing any employer to discriminate against any employee, and by adding a corresponding requirement to the notice. In support of this contention, the General Counsel relies on three recent cases,' involving other employers, in which Respondent unlawfully caused those employ- ers to discriminate against employees because they were not union members. We find merit in the General Counsel's contention. A broad remedial order is appropriate whenever a proclivity to violate the Act is established, either by the facts within a particular case or by prior Board decisions against the Respondent at bar based on similar unlawful conduct in the past. In view of Respondent's repeated disregard for the provisions of Section 8(b)(2) and 8(b)(1)(A) of the Act, we find 'Brotherhood of Teamsters & Auto Truck Drivers Local No 70 International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Morns Draying Company), 195 NLRB No 164, Encinal Terminals, 193 NLRB No 53, and Brotherhood of Teamsters & Auto Truck Drivers, Local No 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (California Trucking Association), 188 NLRB No 61 2 Modify the second sentence of the section of the Trial Examiner's Decision entitled The Remedy" to read as follows It will be recommended that the Respondent Union make Reliford whole for any loss of pay or other benefits he may have suffered by reason of the unlawful discrimination against him , by paying to him a 125 that such a pattern of continued unlawful conduct clearly warrants the remedy sought by the General Counsel, and we shall issue the requested Order. In so finding, we note that our remedy in Morris Draying Company, supra, was of the type sought herein, and we see no compelling reason to deviate therefrom. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Sea-Land of California, Inc., or any other employer to discrimi- nate against James Reliford or any other employee except to the extent permitted by the proviso to Section 8(a)(3) of the Act, as amended. (b) In any like or related manner restraining or coercing employees of Sea-Land of California, Inc., or any other employer in the exercise of their rights guaranteed by Section 7 of the Act, except to the extent legally permitted by the proviso to Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Notify Sea-Land that Respondent has no objection to the employment of James Reliford and furnish James Reliford a copy of such notification. (b) Make James Reliford whole in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy," as modified herein.2 (c) Make James Reliford whole for those dues il- legally collected from him on November 12,1970, for the months of August, September, and October, 1970. (d) Post at its office and place of business in Oakland, California, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 20, shall after' being duly signed by a representative of Respondent Union, be posted by it immediately sum of money equal to that which he would have earned as wages and benefits from the date of the discriminatory act against him to a date which is 5 days after Respondent advises Sea-Land that it has no objection to the employment of Reliford , less interim earnings and in a manner consistent with Board policies as set out in F W Woolworth Company, 90 NLRB 289. 3 In the event that this 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 read "Posted pursuant to a judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 197 NLRB No. 24 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (e) Additional copies of Appendix shall be signed by a representative of the Respondent Union and forthwith returned to the Regional Director for Region 20. These notices shall be posted, Sea-Land of California, Inc., willing, at places where notices to Sea-Land's employees are customarily posted. (f) Notify immediately the above-named individu- al, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (g) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent Union 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 Sea- Land of California, Inc., or any other employer to discriminate against James Reliford or any other employee in violation of Section 8(a)(3) of the Act, as amended by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any like or related manner restrain or coerce employees of Sea-Land of California, Inc., or any other employer in the exercise of the rights guaranteed to all employees in Section 7 of the Act, except to the extent such rights may be affected by the proviso to Section 8(a)(3) of the Act. WE WILL advise Sea-Land of California, Inc., that we have no objection to the employment by Sea-Land of James Reliford and will recommend that he be reinstated without loss of benefits or seniority. WE WILL make whole James Reliford for loss of pay and other wages and benefits suffered as a result of the discrimination against him. WE WILL reimburse James Reliford for dues illegally required and paid by him for the months of August, September, and October, 1970. Dated By BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS, LOCAL No. 70, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA (Labor Organization) (Representative) (Title) We will notify immediately the above-named individ- ual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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 compli- ance with its provisions may be directed to the Board's Office, 13018 Federal Building, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 415-556-3197. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Trial Examiner : The charge was filed by James Reliford on January 6, 1971. Complaint, issued July 13, 1971, alleged that on or about November 10, 1970, Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America , hereinafter called Respondent, attempted to cause, and caused the Employer, Sea-Land of California, Inc., to discharge Reliford because of his lack of membership in Respondent, which conduct constitutes an unfair labor practice affect- ing commerce within the meaning of Section 8(b)(2) and (1)(A) and Section 2(6) and (7) of the National Labor Relations Act, as amended , 29 U.S.C., Sec. 151, et seq., hereinafter called the Act. The answer denied the commis- sion of any unfair labor practice and pleaded as an affirma- tive defense that Reliford's discharge was requested and was caused pursuant to a valid and legal union-security clause. Briefs were filed by Respondent and the General Counsel. Upon the entire record including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed, I make the following: TEAMSTERS, LOCAL NO 70 127 FINDINGS OF FACT I. JURISDICTION The General Counsel alleges and the Respondent's answer admits that all material times herein, Sea-Land of California, Inc., hereinafter called Sea-Land, a California corporation with a place of business in Oakland, Califor- nia, has been engaged in business as a common carrier by motor freight and oceangoing vessels; during the past year in the course and conduct of its business operations, Sea- Land received gross revenues in excess of $50,000 for transporting freight in interstate commerce. I find that Sea- Land is, and at all times material herein, has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Issue The issue is whether or not James Reliford, the Charging Party, was terminated by Sea-Land at the instance of the Respondent in violation of Section 8(b)(2) and (1)(A) of the Act. B. The Facts James Reliford was first employed by Sea-Land in 1963 at which time he was a member of Respondent. According to his testimony which I credit, and his union ledger card (G.C. Exh. 9) he has continuously remained a member of Respondent except for brief periods when because of his failure to pay union dues he was suspended. On such occasions Reliford paid the required reinstatement fees and back dues and was thereupon reinstated as a member of Respondent. An entry on his ledger card indicates he was suspended for nonpayment of union dues on Septem- ber 30, 1970, and reinstated on November 12, 1970. Further entries on the ledger card indicate he has continued to pay his dues through November 1971. According to Reliford's testimony he has remained continuously employed by Sea-Land since 1963 except for a brief period in late 1967 when he was terminated but later rehired in 1968, until discharged on November 10, 1970, which discharge precipitated the instant case. Respondent and Sea-Land first established a contractual relationship in June 1962 at which time Sea-Land first started operating in California. According to the former operations manager, Mr. Lennon, the initial labor agree- ment between Sea-Land and Respondent was the contract or labor agreement, that had been negotiated between the California Trucking Association and the Union covering the period from 1961 to March 1964 with one exception (not relevant to this case) to accommodate the particular method of operations employed by Sea-Land. The contract was simply adopted by Sea-Land and the Respondent (Resp. Exh. 1). This contract was followed by an I It is apparent from the numbering of the earlier articles found in the 1967-1970 contract that the proper designation for the "Duration of Agreement" article should have been LI agreement covering the period from July 1, 1964, to March 31, 1967, consisting of a printed contract (Resp. Exh. 3) and a two-page typed supplement (Resp. Exh. 2). This contract in turn was succeeded by the third agreement between Sea-Land and the Respondent, identified as General Counsel's Exhibit 2, which covered the period from April 1, 1967, to March 31, 1970. Pursuant to what is indicated as Article XLI, "Duration of Agreement," found on page 49 of the 1967-1970 contract,' notice was given by Respondent to Sea-Land in a letter dated January 19, 1970, to meet "at an early date for the purpose of negotiating a new agreement." (G.C. Exh. 3). I find that Respondent's letter to Sea-Land was intended to and did legally cause the expiration of the 1967-1970 contract as of March 31, 1970. There was testimony from both Sea-Land and the Union that meetings were held between the date of receipt of this letter and the final negotiating session which lasted for 44 continuous hours and resulted in a new contract being executed on October 26, 1970 (G.C. Exh. 5). The testimony indicates that the earlier meetings were of a preliminary nature and to exchange proposals. Nothing was seriously undertaken until the final session that resulted in the new contract to cover the period from April 1, 1970, to June 30, 1973, but which was executed by the parties on October 26, 1970 (G.C. Exh. 5). By a form letter dated November 10, 1970, bearing the signature of A. N. Leishman, secretary-treasurer of Respondent, Sea-Land was advised that James Reliford had failed to pay the regular dues of all members and and "in accordance with Article III of Sea-Land Services, Inc. Local No. 70 agreement" his discharge was requested (G.C. Exh. 6).2 Sea-Land by letter dated November 10, 1970, over the signature of T. R. Morehouse, Operations Manager, advised James Reliford that the Company was complying with a request received from the Union and he was being dropped from the seniority list effective November 10, 1970, for nonpayment of union dues. The letter further advised that the action was taken in accordance with article III of the agreement. All monies due and payable to Reliford were enclosed. (G.C. Exh. 7). Reliford testified he received notification from the Respondent on November 9, 1970, that he was suspended from union membership as of September 30, 1970, for failure to pay his dues. Reliford related that in response to the letter from Respondent he promptly mailed a check to Respondent, and on November 12, 1970, he went to the union hall and picked up the check and paid in cash. The ledger card for James Reliford (G.C. Exh. 9) indicates he was suspended on September 30, 1970, and reinstated November 12, 1970. Reliford has not worked for Sea-Land since November 9, 1970. C. Analysis and Legal Conclusions The Respondent contends and there was testimony to the effect, that the 1967-1970 agreement between Sea- Land and Respondent, inadvertently failed to contain a union shop security clause, but that both parties to the 2 While the form letter was dated November 10, 1970, the postmark on the envelope which was a part of G C. Exh 6, clearly bears a postmark date of November 9, 1970, at Oakland, California 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract intended that the agreement contain such a clause. Respondent contends that through an oversight by the parties in the process of including the applicable portions of the 1964-1967 printed contract booklet and the two- page typed supplement covering the same period (Resp. Exhs. 2 and 3) into a single printed booklet comprising the new contract for the period April 1, 1967, to March 31, 1970, the union-security clause was inadvertently omitted. The inadvertent omission of a clause of such major significance to the parties and of such impact and significance to the employees covered by the contract, and the subsequent failure to rectify such a vital omission, strains credulity to believe. Acceptance of such an intent by the parties would require the clearest and most convincing evidence. However, I find it unnecessary to resolve this factual issue, in disposing of the issues in this case. The evidence fails to show that either the Respondent or Sea-Land took definitive action to continue all the terms and conditions of the 1967-1970 contract after its expiration on March 31, 1970, until such time as a new agreement could be concluded. Mr. Skitarelic, the chief negotiator for the Company in the 1970 negotiations, testified there was no agreement with the representative of the Respondent to continue the 1967-1970 agreement in effect after its expiration date of March 31, 1970.3 Mr. LeRoy Nunes testified that he was the chief negotiator on behalf of Respondent in the negotiations that resulted in 1970-73 agreement. On cross-examination Mr. Nunes indicated the parties continued to abide by the terms of the 1967-1970 agreement between the expiration date of March 31, 1970, and the execution of the new agreement on October 26, 1970. There is evidence to show that grievances were processed during the hiatus period and article references were made to the then expired agreement in the course of processing these grievances. However, nowhere in the transcript can be found definitive testimony that the parties agreed, either orally or in writing, to formally extend the agreement after its expiration date of March 31, 1970. To the contrary, as indicated supra, Mr. Skitarelic testified that nothing was done to continue the expired agreement. Continuation of the terms and conditions of the expired contract as to wages, hours, and general working conditions, including the process of grievances, is not conclusive proof of the existence of a valid contract. Such conduct is required by Board decisions. See Bethlehem Steel Company, 136 NLRB 1500, wherein the Respondent Company was found in violation of the Act for making unilateral changes relating to wages, hours, and other terms of employment following the expiration of a contract, but was not found in violation for refusing to give effects to provisions requiring employ- ees to loin the Union 30 days after hire, or for discontinu- ing the checkoff of union dues. In relevant part the Board was affirmed by the United States Third Circuit Court of Appeals. (320 F.2d 615). I find therefore, that there was no 3 See the record at p 22 1 credit Mr Skitarelic's testimony in this regard 4 In so finding I am further persuaded that my finding was the view of the parties because of the following facts The Charging Party was suspended from the Union for nonpayment of dues on May 29, 1970, and was not reinstated until July 15, 1970 (See G C Exh 9), yet no action was taken by Respondent to request his discharge These dates occurred during contract in existence between the Respondent and Sea- Land from April 1, 1970, until October 26, 1970, at which time the new contract was signed .4 Employees are entitled, under Section 8(a)(3) of the Act, to a 30-day grace period from the date the agreement actually became effective, which is the execution date of October 26, 1970, and not the retroactive effective date of April 1, 1970. Anderson Express Ltd., 126 NLRB 798 and cases cited in footnote 2 at page 803. In so holding I am not unmindful of the Board 's decision in Pacific Iron and Metal Company, 175 NLRB 604, wherein the Board found there could be a lawful oral agreement providing for a union shop security clause. In the Pacific Iron and Metal Company case there was a definite agreement between the parties to the contract and the agreement, including the union shop provision, was unmistakably communicated to all employees who thus had knowledge of their responsibility thereunder. Such was not true in the instant case. The new contract was signed on October 26, 1970, and was made retroactively effective as of April 1, 1970. The discharge of the Charging Party, Reliford, was requested by the Union on November 10, 1970, and he was effectively discharged on the same date. By making the contract retroactive, Reliford was denied the 30-day grace period to which he was entitled under the statute and the contract was illegal. The denial of the statutory grace period leaves Respondent with no legal agreement to justify Reliford's discharge because of his dues delinquen- cy.5 I find and conclude that Respondent violated Section 8(b)(1)(A) and (2) of the Act by causing Reliford's discharge. III. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the operations of Sea-Land 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. IV. THE REMEDY Having found the Respondent Union engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It will be recommended that the Respondent Union make Reliford whole for any loss of pay or other benefits he may have suffered by reason of the unlawful discrimination against him, by paying to him a sum of money equal to that which he would have earned as wages and benefits from the date of the discriminatory act against him to the date of his reinstatement less interim earnings and in a the hiatus period between contracts and if the Respondent's view of the contract continuation is to be believed, why was not the discharge of Reliford requested9 5 Adams Division, LeTourneau Westinghouse Co, 143 NLRB 827 and cases cited in fns. 3 and 4 therein TEAMSTERS, LOCAL NO. 70 manner consistent with Board policies as set out in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in a manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716. It follows that the back dues which Reliford was required to pay on November 12, 1970, to effectuate his reinstatement were illegally required and I shall recommend that these monies be returned to Reliford. It shall further be recommended that the Respondent advise Sea-Land that it has no objection to the employment of James Reliford by Sea-Land and recom- mend that he be reinstated without loss of seniority to his former position or such substantially equivalent position as he might be entitled to with his seniority had he not been unlawfully discharged at the request of the Respondent. It shall also be recommended that Sea-Land Corporation preserve and, upon request, make available to the Board or its agents, payroll and other records to facilitate the computation of backpay. On the basis of the foregoing findings and upon the entire record in the case, I make the following: O CONCLUSIONS OF LAW 129 1. The Sea-Land Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act, and LeRoy Nunes and A.N. Leishman are agents of the Respondent Union within the meaning of Section 2(13) of the Act. 3. By causing Sea-Land to discriminate against James Reliford in regard to tenure of employment in violations of Section 8(a)(3) of the Act, thereby unlawfully encouraging membership in Respondent Union, 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. [Recommended Order omitted from publication.]