Truck Drivers Local 807

TRUCK DRIVERS LOCAL 807 259 Truck Drivers Local - Union No. 807, International Brotherhood of- Teamsters, Chauffeurs, Ware- housemen and Helpers of America and George Lightfoot, Anthony Palumbo, Tony Greco, and White Rock Beverages Inc., Party to the Contract. Ca3es 29--CB-1352-1, 29-CB-1352-2, and 29-CB-1352-3 pension purposes based upon or arising out of union membership, or (2) provide or allow service credits on any other basis discriminatorily in violation of the National Labor Relations Act, so as to favor union members over nonunion employees employed under the same collective agreement or in the same collective-bargaining unit as such union members." November 13, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On July 16, 1973, Administrative Law Judge Benjamin A. Theeman issued the attached Decision in this proceeding.; Thereafter, the General Counsel and the Respondent filed exceptions and supporting briefs. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.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 Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Truck Drivers Local Union No. 807, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Long Island City, New York, its officers, agents, and representa- tives on the Pension Fund of New York City Trucking Industry Local 807, shall take the action set forth in the said recommended Order, as, modified below. 1. Delete paragraph 1(a) of the recommended Order and substitute the following: "(a) In any manner subscribing or being party to, maintaining, supporting, or participating in the pension program or pension fund established by or arising out of or in relation to a certain agreement and declaration of trust, dated December 1, 1950, or other instrument, as reflected or implemented in any rules and regulations, or practices, adopted or followed thereunder, insofar and so long as any thereof (1) provide or allow service credits for 3 Pension Fund of New York City Trucking Industry Local 807 was represented at the hearing as Party in Interest 2 While the Administrative Law Judge's Decision does not proscribe using membership in a labor organization as a factor in determining eligibility for pension credits, his recommended Order appears to do so. Accordingly, we have, modified the order to accurately reflect the Administrative Law Judge's conclusions DECISION STATEMENT OF THE CASE BENJAMIN A. THEEMAN, Administrative Law Judge: The complaint alleged that Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Teamsters) from February 28, 1972, violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq. (the Act) by being a party to and maintaining a pension fund containing as one of its rules and regulations a certain article III, section 2(a) under whose terms with regard to the accumulation of pension credits a preference was accorded to employees who were members of the Teamsters prior to January 1, 1937, over employees who were not members of the Teamsters prior to January 1, 1937. The Teamsters denied the commission of the unfair labor practices. In addition, the Teamsters raised three affirma- tive defenses: (1) The complaint is not supported by any charge and has been issued by the Regional Director for Region 29 on his own motion in violation of Section 10(b) of the Act. (2) The alleged preference in article III, section 2(a) stated above does not violate the Act because it cannot be considered discriminatory in regard to hire, tenure, or any term or condition of employment to encourage or discourage membership , nor to restrain or coerce employ- ees in the exercise of Section 7 rights under the Act. (3) Article III, section 2(a) provides for no presumption favoring membership in the Teamsters and thus is not violative of the Act. These affirmative defenses are dealt with in section III below. Pursuant to notice, a hearing in this case was held in Brooklyn, New York, on April 30 and May 1, 1973. The General Counsel, the Teamsters, and the Party in Interest appeared and were represented by Counsel.' They were given full 'opportunity to participate, adduce evidence, examine and cross-examine witnesses, and present oral argument. These parties have submitted briefs that have been read and considered. Upon the entire record, and from my observation of the witnesses, I make the following: 1 As shown below, the Regional Director refused to issue complaints on the alleged violations dealing with Lightfoot. Palumbo, and Greco. 207 NLRB No. 47 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. BUSINESS OF WHITE ROCK At all material times (1) White Rock Beverages Inc. is a Delaware corporation and a wholly owned subsidiary of White Rock Corporation. (2) White Rock Beverages Inc. and White Rock Corporation (together referred to herein as White Rock) are affiliated businesses with common officers, directors, and- operators and constitute a single integrated business enterprise. (3), The directors and operators of White Rock formulate and administer a common labor policy affecting the employees. (4) White Rock Corporation has maintained its principal office and sole plant in Boston, Massachusetts, where it is engaged in the manufacture, sale, and distribution of beverages and related products. (5) During the year 1972 (a representative year) White Rock Corporation, in the course and conduct of its business operations, manufactured, sold, and distributed at its Boston place of business , products valued in excess of $500,000, of which products valued in excess of $50,000 were shipped in interstate commerce to other States than Massachusetts. It is found, as admitted, that White Rock is an employer engaged in"commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE UNION It is found, as admitted, that Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (the Teamsters) is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues are sufficiently set forth in the Statement of the Case above. B. The Filed Charges Adequately Supported the Complaint Three similar charges were filed in this case in October 1972 by Lightfoot, Palumbo, and Greco. Each stated: Since on or about February 19, 1972, and continuing to date, the above named labor organization by its officers, agents and representatives has maintained in effect an employer-financed ,pension plan for employ- ,2 The denial letters were identical: Your appeal in the above matter has been duly considered. The appeal is denied substantially for the reasons set forth in the Regional Director's letter of December 15, 1972. The only discovered instances of employees' having received pension credit for time during which they were not covered under a Union collective bargaining agreement could not be shown to have been based on any considera- tions other than clerical error which the Union has been trying to correct. Appeal from refusal to issue complaints based on a 8(b)(IXA) 'charge filed on October 19, 1972, by George R. Lightfoot, an individual alleging that certain provisions in the pension fund agreement between ees of White Rock Beverage Company, which provid- ed; inter alia that benefits shall be based upon length of membership within the union, and has denied benefits to Tony Greco because he did not have a sufficient period of time as a union member. By these and other acts, the above-named labor organization has restrained and coerced employees in the exercise of their rights guaranteed under Section 7 of the Act. By similar letters dated December 15, 1972, the Regional Director (Region 29) notified each of the individuals of his refusal to issue a complaint on ' the charge. The letter stated: The investigation failed to establish that you have been unlawfully denied pension credits for service with White Rock Beverage Company because you were, not a member of Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Rather, the evidence tends to show that pursuant to the Pension Plan's rules and regulations you have been denied past service pension credits for the period you were not in the unit of employees covered by the collective bargaining agreement between your employer and Local 807, Nu-Car Carriers, Inc., 187 NLRB 850. I am, therefore, refusing to issue a complaint insofar as your ,charge alleges that you have been unlawfully denied benefits under the Pension Plan because you were not a Local 807 member. The remaining portions of your charge are being processed- further. The three individuals appealed the Regional Director's ruling to the General Counsel of the Board. On January 26, 1973, each appeal was denied.2 In their answer, at the hearing and in their brief, the Teamsters and the Party in Interest moved to dismiss the complaint upon the basis that the refusal to issue complaint on the specific denial of benefits to the named employees left no charge to support the. complaint in that the alleged violation in the complaint had no relationship to the alleged violation in the charge; that Section 10(b) of the Act states clearly that without a charge, the Board has no basis for proceeding. The General Counsel asserts that the language in each charge "By these and other acts, the above named labor organization has restrained and coerced. employees in the exercise of their rights guaran- teed under Section 7 of the Act," supports the issuance of the complaint. There is merit to the General Counsel's position. The motion to dismiss based on the inadequacy of the charge is denied.3 the Company and the Union are discriminatory on their face and that Lightfoot was denied benefits on the basis of his prior lack of union membership in the union. i The Region has found merit to the 8(b)(1)(A) allegations that certain provisions in the pension fund agreement are illegal, however, it refused to issue complaint alleging that the denial of benefits was unlawfully motivated. 3 Further, it is noted that the Teamsters and the Party in Interest were given notice that further proceedings were contemplated . The Regional Director's letter refusing to issue complaint contained the sentence "The remaining portions of your charge are being processed further." The letter denying the appeal stated that Section 8 (b)(1)(A) violations were being TRUCK DRIVERS LOCAL 807 261 The three . charges stated that the Teamsters, since February 19, 1972, and thereafter, restrained and coerced employees because it "has maintained, in effect an employer financed pension plan for employees of White Rock Beverage Company, which provided that benefits shall be based upon length of membership within the union.... " The complaint herein in paragraph 10 alleges that "a preference is accorded in accumulating pension credits to employees who were members of Respondent prior to January 1, 1937 over employees who were not or did not become, members of Respondent prior to January 1, 1937." By examination it can be seen that the violation of the complaint allegation is not, far removed from but is of the same class as the specific allegation in the complaint. Both refer to a preference to union members based on union membership. Southern Materials Company, Inc., 181 NLRB 958, fn. 1. Thus, there appears little doubt that the action referred to in the complaint allegation is sufficiently "closely related"4 to the specific charge allegations as to come within the scope of the -°By these and other acts" language of the charge. Under such circumstances it cannot be said that the Regional Director has issued a complaint on his own initiative as he is forbidden to do by Section 10(b) of the Act. Great Plains Steel Corp., 183 NLRB 968 and cases cited therein .5 C. Pension Fund of the N.1' C. Trucking Industry Local 807 1. Salient features of the fund By an agreement and declaration of trust dated Decem- ber 1, 1950, Local 807 and certain employer associations and individual employers established the pension fund of the N.Y.C. Trucking Industry, Local 807 for the, benefit of employees covered by collective-bargaining agreements between the employers and the Union. The terms and conditions were fully set forth in the agreements and rules and regulations established for the pension plan. An employer under the terms of its collective-bargaining agreement with the Teamsters made contributions to the pension fund on behalf of his employees .6 The pension fund is administered by a Board of eight trustees, four are union trustees and four are employer trustees. Each group votes as a unit and in the event of a dispute- the trust provides that the matter shall be submitted to an impartial arbitrator for determination. 2. The challenged language This proceeding deals with article III, sections 1 and 2(a) processed based on illegal provisions of the pension fund agreement. 4 See Prince Pontiac Inc., 174 NLRB 919, 921; Champion Pneumatic Machinery Co., 152 NLRB 300,303 5 Great Plains quotes from Texas Industries Inc. v. N.LR.B., 336 F.2d 128,132 (CA. 5, 1964). That quotation is particularly apt here: It is established that this section [10(b)1 precludes the Board from issuing a complaint on its own initiative, and that a charge is a prerequisite to the institution of proceedings before the Board ... However, the charge is not a formal pleading, and its function is not to give notice to the respondent of the exact nature of the charges against him . . This is the function of the complaint. The charge rather, serves merely to set in motion the investigatory machinery of the of the pension fund's rules and regulations, which were incorporated into the rules by an amendment dated February 28, 1972, effective the same day. The new article III, sections I and 2(a) read as follows: Section 1. Pension Credits Generally. Entitlement to a pension under this Plan is determined in part on the accumulation of Pension Credits. Pension Credits are granted on the basis of employment covered by the Pension Fund. Credits are granted in quarter-year units. A Pension Quarter is defined as any period of three consecutive months starting August 1st, Novem- ber 1st, February 1st or May 1st. A year of Pension Credits consists of any four quarters of Pension Credit. Pension Credits shall be granted only as set forth in this Article. There are two bases for securing Pension Credits for the period before September 1, 1950 and another basis for accumulating Pension Credits for the period on and after September 1, 1950. For the latter period, it is purely a question - of a certain minimum amount of work in Covered Employment. Section 2. Past Service. (a) It is recognized that it would be difficult for many, if not most, of the Employees to establish their periods of Covered Employment prior to January 1, 1937. Consequently, anyone who was a memberof Local 807 prior to the period commencing January 1, 1937 may, at the sole discretion of the Trustees, be given a year of Pension Credit for each year he was a member of Local 807 during this period. For this purpose, a Pension Quarter shall be credited if the Employee was a member for any part of the quarter. Pension Credit shall also be granted for any period of time that an employee can prove that he worked in covered employment through employer records. 3. Conclusion that the language is violative of the ' Act Section 2(a) as written recognizes that applicants for pension credits may have difficulty in proving covered employment for the period prior to January 1, 19317 Section 2(a) in effect separates pre-1937 applicants into two classes: (1) members of the Union prior to January 1, 1937; (2) nonmembers of the Union prior to January 1, 1937. As written section 2(a) grants two advantages to the union member employee over the nonunion member employee: (1) it increases the probabilities of a union member to get pension credits; (2) it increases the burden of proof of the nonunion member. These' advantages are shown ' by the following example Board. It is largely for the benefit of the Board , not the respondent, so that it may intelligently determine whether and to what extent an investigation is warranted. Consequently. the Board has considerable leeway to found a complaint on events other than those specifically set forth in the charge, the only limitation' being that the Board may not get "so completely outside . . the charge that it may be said to be initiating the proceeding on its own motion.. .. " (Citations omitted.) 6 Since about November 1. 1971, and pursuant to a collective -bargaining agreement with the Teamsters, White Rock has been making contributions to the pension fund for its employees. 7 Caused by the absence of social security records. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which reduces the language of section 2(a) to the simplest possible situation. During the period 1934 to 1937 two applicants were employed by employer X and employer Y, respectively. Applicant one was a union member: Appli- cant two was nonunion. Employers X and Y and -their records are no longer existent. No other confirmation or record concerning 'covered employment is available= than the statement by each applicant of his employment. Section 2(a) is applicable to such a set of facts. It provides that under such circumstances, ". . . anyone who was a member of Local 807 prior to the period commencing January 1, 1937 may, at the sole discretion of the Trustees, be given a year of Pension Credit for each year he was a member of Local 807 during this period." It is reasonable to conclude that, absent other facts, the, trustees will exercise their discretion in favor of granting the pension credits to the union members But regardless of what occurred or might occur in practice, and looking only to the language itself as written' it is clear that a union member's probabilities of receiving pre-1937 pension credits are greater than those of a nonunion member. For under its terms the union member is in a position to receive pension credits where a nonunion member may not. Under the terms of the pension fund the pre-1937 credits are worth at least $10 a month additional for each year of pension credit. This payment is not considered insubstan- tial and an arrangement wherein only union members receive this advantage is also not insubstantial. Between the union and nonunion members under such circum- stances, the language of section 2(a) makes that value available only to Teamster members. As written, section 2(a) sets up two unequal standards of proof of covered employment. Under the given situation the union member is in a position to rely on his union membership to support his application. The nonunion member cannot do so. Lacking this support the nonunion member is required to exercise extraordinary efforts to obtain confirmatory proof. It follows that the nonunion member's burden of proving his claim is heavier than the union members. Certainly this distinction creates an advantage for the union member, for, as the Board said on page 851 in Nu-Car Carriers, Inc., 187 NLRB 850, review denied, 455 F.2d 615 (C.A. 3, 1972), "We do not, however, minimize the burden of proof imposed on non-members." To the extent of an easier burden of proof the union member was given an advantage over the nonunion member because of his union membership. To that extent also section 2(a) discriminated against nonunion mem- bers.9 It is noted that in Nu-Car Carriers, the pension fund provided that pension credits . were granted to union members by establishing for the latter the presumption that union membership was evidence that they had worked under covered employment. Therein, no such presumption was given to nonunion employees. The Board said at 851, "By dispensing with proof of past employment history for members, members receive an advantage: nonmembers being denied the advantage suffer discrimination (Cases cited)." Unlike Nu-Car, the language in section 2(a) does not create a "presumption" in favor of a union member that he may exercise as a matter of right but it does nevertheless establish a discriminatory advantage in favor of union members and against nonunion members. Such an advantage based on union membership is violative of the Act, even though it does not achieve the status of a presumption.10 As stated below, the trustees acted favorably upon 32 applications for pension credits under section 2(a). The evidence presented does not show that in doing so the trustees carried out section 2(a) so as to discriminate against nonunion employees." Such nondiscriminatory administration does not dissipate the inherent impropriety of section 2(a). As was stated in the concurring opinion in Local 357, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America v. N.LR.B., 365 U.S. at 678 (1961): The mere existence of a clause that on its face appears to declare preferential rights for union members encourages union membership among employees or job applicants, persons not privy to the undisclosed intent of the parties, yet affected by the apparent meaning of the contract. Hence the mere possibility that such a clause may actually turn out not to have been administered by the parties so as to " favor union members is not enough to save it from condemnation as an unlawful discrimination. The favorable probabilities and advantages for union members found above arose out of the terms and conditions of the collective-bargaining agreements between the Teamsters and employer contributors to the pension fund.12 Thus, they are a condition of employment affecting the employees of the trucking industry. To the extent that these conditions advantage union members and disadvan- tage nonunion members they do violence to the purposes of the Act. Accordingly, it is found that the language of article III section 2(a), as written, violates Sections 8(b)(1)(A) and (2) and 8(a)(3) and (1) `of the Act. Cf. Nu- Car Carriers, supra, pages 851 and 861, and cases cited therein. D. Article III Section 2(a) in Operation 1. The General Counsel takes the position that the operation of the fund is discriminatory The General Counsel rested after putting in his proof to show that article III, section 2(a) was violative per se of the Act. The Teamsters and the Party in Interest then placed in evidence the practices and procedures of the pension fund in handling applications for pre-1937 pension credits to show that the fund handled all applicants and applications without discrimination and therefore the language of the agreement was not violative of the Act. On the basis of the record evidence the General Counsel in his closing statement and brief, took the position that the administra- 8 Scotto, an employer trustee of the fund, testified ". . there's a 10 Under these circumstances, the Teamsters' third defense fails. See presumption there that if he's a union member, there would be covered Statement of the Case above. employment." 11 See the following section of this Decision. 9 Cf Nu-Car Carriers, Inc., supra, wherein the Board found a provision 12 One of whom is White Rock Beverage. of the pension fund violative of the Act as written. TRUCK DRIVERS LOCAL 807 263 tion of article III, section 2(a) by the Teamsters was also violative of the Act.13 The record as a whole does not support the General Counsel's position. 2. Practice and procedure The determination of pension credits was a two step process.14 The first was the collection of data. The second was the trustees' decision. The collection of data was performed by the funds' administrative staff 15 and was commenced by the appli- cant filing an application for pension credits. Each applicant filed a standard application form which included an authorization to obtain earnings data from Social Security and a list of "all employers in the Trucking Industry for whom" the applicant ever worked. No time limit was specified. The applicant was asked to start with his "present or most recent employer first" and continue in that order. He was asked to use separate sheets of paper "if more space is needed." A major problem for the fund was the determination of periods of covered employment16 for the pre-1937 period. As stated in section C, above, the problem was made more difficult because of the absence of Social Security records.17 After all the information available had been collated, the fund analyzed the data, placed the analysis in the applicant's folder and the entire folder was forwarded to the trustees for their determination. This procedure occurred whether the application was supported by employer records or not. The assistant administrator stated that the fund did not take the employer's record for granted. The union records 18 were useful to validate the employer's records to achieve the fund's sum of checks and balances and "to make sure the information that the man was giving us was true." The assistant administrator continued; This is one of the ways that we have of checking it. In other words, if the union records show that the company had a contract, that this man was in fact listed on their seniority list at that time and that he was a member, I mean these things show us that we're on the right track and that the man would qualify for credit during that period of time. But again, we would 13 The original ,complaint herein does not allege that the administration of section 2(a) was violative of the Act. To the extent that it alleges that Section 2(a) is per se violative, it is broad enough to place in issue an allegation that as administered the fund was also violative of the Act. In any event, the Teamsters voluntarily introduced the facts upon which the General Counsel's, allegation is based, the matter was fully litigated at the hearing and is included in point II of the Teamsters' brief Cf. Gust K Newberg Construction Company, 174 NLRB 1108, 1110 In. 12. See also, Local 146, Sheet Metal Workers, 203 NLRB No. 168, In. 1, wherein an allegation in an amended charge was not included as an allegation in the complaint and was not considered in issue by the Administrative Law Judge The Board however, decided the issue because "there was litigation of it." 14 The procedures were standard for all applications whether for pension credits for employment prior to January 1, 1937, or after that date. 15 An applicant was not required to make an independent investigation to prove covered employment is Covered employment prior to January 1, 1937 according to article III was defined as: Periods of employment, even before coverage by a Local 807 contract, by an employer which participated in the Pension Fund on September 1, 1950, shall also be credited, provided that it was employment in a put it on the analysis sheet and then submit it to the trustees for final determination. The Trustees reviewed each application individually. In making their determination they considered all the data contained in the applicants' file. In certain cases, oral testimony was considered to supplement the documental evidence. There were available people who had been in the trucking industry since 1925 who had personal knowledge of events, people, and employment prior to 1937. Some of the trustees of the fund were in that category. Their testimony in connection with certain applications for pre- 1937 credits became part of the evidence used by the trustees. Scotto, an employer trustee, detailed the procedure the trustees went through generally in making their determina- tion. As an example of the use of oral testimony he referred to applicant Caprio. When his case was being considered, Mangan, president of the Teamsters and one of the trustees, was present. Mangan was formerly employed by the U.S. Trucking Corp. Mangan confirmed from his personal knowledge that Caprio had been employed by U.S. Trucking prior to 1937 though that company had no record of the same. As Scotto put it: For example, [Joe Mangan ] happened to be the steward on the U.S. job. Absent all other documents, absent every other type of evidence that we could find, Mr. Mangan came forward in his capacity as steward at that time who could tell us yes, I worked with this man, he was on the job, he was there in covered employment, I was present at the same time. Mangan testified with regard to applicant Ubrico also. It is noted that in both cases an affidavit was obtained from Mangan and included in each man's file. Other than these two applications, the record does not show that other applicant's files' were supplemented by oral testimony.19 Received in evidence without objection was a summary and analysis of the action taken by the trustees with regard to the 32 pre-1937 applications. The parties stipulated that the summary prepared by the assistant administrator listed the data contained in each applicant' s file. The stipulation also stated that summary did not contain everything that was considered by the trustees in deciding each applica- tion. Also received in evidence were union records of the category of work (such as a driver, helper, etc) which is covered by Local 807 agreements. Covered employment was interpreted in the funds' booklet of question and answers as follows: .. . For the period before September 1, 1950 [covered employment] may also include work not covered by a Local 807 contract provided it was a job for which Local 807 bargains and the employer participated in the plan on September 1. 1950.> 17 With regard to applications for post-1937 credits that data collected included social security and union records According to the assistant administrator of the fund a combination of at least these two showed the various companies the employee worked for, whether each company had a contract, the seniority listing of the employee, and the type of work he was doing The assistant administrator called the result a "sum of checks and balances" The union records were considered essential to a determination of pension credits. See also In. 30. is According to the assistant administrator , union records meant contracts, seniority lists, and initiation date into union membership. 19 Scotto was the only trustee who testified He stated that minutes were kept by the trustees of the action taken on each decision , that without these minutes he was unable to state whether he was present when a particular application was decided. 264 DECISIONS OF NATIONAL-,LABOR RELATIONS BOARD 32 applicants containing data used by the assistant administrator in compiling the applicant's file.20 The parties in their briefs and argument deal with individual files and the evidence contained in the record for each individual. Of course, the record evidence is the basis for the final determination herein that there was no violation of the Act in the administration of the fund. 3. Analysis and conclusions a. Introduction The General Counsel, to support the allegation of discrimination, refers to six applications (King, De Stefano, Sloan, Burke, Geyer, and Woyzick). He claims the initiation,date played a significant role in the determina- tion of the pension credits.21, He also refers to 10 other applications (Geis, La Morte, Firman, D'Avola, Cohen, Daum, Kelly, Connors, Krauss, and Zalewski) wherein pension credits were based on the initiation dates "which dates were later than dates established22 by said applicants for having commenced their employment in covered employment from other evidence." As a result, the General Counsel asserts that the applicant was "granted fewer pension credits." Generally, the General Counsel contends that the initiation date, evidence of membership in the Teamsters was used by the trustees to create a presumption of covered - employment; that this was the same type of presumption, the Board found unlawful in Nu-Car Carri- ers, supra. The General Counsel does not refer to the remainder of the 32 cases decided by the trustees. It is considered essential that they as well as the ones referred to by the General Counsel be examined to determine whether in fact the operation of the fund and the granting of pension credits were administered so as to violate the Act. b. Analysis of the 16 pre-1937 applications the General Counsel considered not violative of the Act The General Counsel does not assert a violation of the Act in the case of 16 applications: With regard to five applications (Wild, Spinelli, Rocco, Basile, and Kronen) pension credits were granted to the applicant to commence at a date later than that of his initiation date where employment records in the file showed that his employment started at the later date.23 With regard to four applications (Howard, Tracey, Klepacki, and Zelenka) pension credits were granted to the applicant based on employment that commenced prior to the time of his initiation date.24 With regard to five applications (Vukek, Mazza, La Rocca, Maj, and. Thorp) pension credits were granted to 20 No applicant's complete file was placed in evidence, nor does the record contain a clear statement of the actual data used by the trustees in connection with each application. 21 The General Counsel does not show how the playing of a "significant role" is violative of the Act 22 This word was used by the General Counsel. Perhaps a better word is -asserted " 23 The record shows that these conditions are the same as those for the 10 above wherein the General Counsel asserts a violation The General Counsel does not distinguish these from the 10. In all 15, the pension credits applicants based on their employment records. The record contained no union initiation date.25 With regard to Ubrico's application, pension credits were granted to him commencing with his union initiation date of October 25, 1927, which was later than the date that he commenced employment. The record includes Social Security records showing that Ubrico was employed by Century Transportation from 1937 forward. Also it contains Mangan's affidavit that Ubrico was working for Century from 1926 to 1936.26, With regard to Caprio's application, pension credits were granted to him from March 1, 1932. His union 'initiation date was March 7, 1932. His employer had no record of employment for the period from 1932 to 1936. The record includes an affidavit of Mangan showing employment for that period. Examination of the foregoing shows that the results obtained bear out the trustees' statements that each application was handled on an individual basis. No set pattern of treatment is shown. The union record was included in the applicant's file and was considered as a factor in the determination process. In some cases, the initiation date was given more weight'than in others. There is no showing, however, that the union record was used other than as' evidence by the trustees in making their decision. c. Analysis of 16 pre-1937 applications the General Counsel considered violative of the Act The next six cases to be dealt with are those first listed above by the General Counsel as violative of the Act. With regard to Sloan's application, his file showed an employer letter stating he started work in 1935. Sloan was granted pension credits from July 1, 1935. His union initiation date was June 20, 1935. The record contains no explanation for the selection of the later date to commence Sloan's pension. In any event, this condition is the same as that of Wild, Spinelli, etc., in section (b) above to which the General Counsel did not object. It may be that the union initiation date affected the choice of the later date but absent additional information the conclusion is not warranted. If the initiation date did affect the selection of the later date (which is not an improbable conclusion as a matter of regularity) then the reasoning applied to the next three cases is also applicable to Sloan with the same result. With regard to three applications (Burke, Geyer, and Woyzick) pension credits were granted to the applicants on the combined evidence of employment records and union records. Burke's file contained a letter showing he had been first employed during the early part of 1934. No specific, date was indicated. Burke was granted pension credits starting with March 12, 1934, the union initiation started with the initiation date later than the employment date. Each received fewer credits 24 Apparently, the trustees did, not consider the initiation date the controlling factor. 25 The record does not account for the lack of the initiation date The record does show that all 32 applicants were union members. 26 The General Counsel does not question this decision. It is noted that in this case as with the 15 mentioned above the initiation date was used for the commencement of pension credits and not an earlier employment date. The result was the same, a loss of pension credits. TRUCK DRIVERS LOCAL 807 265 date. Geyer's file contained a letter from the employer showing a date of hire in 1935. Again no specific date was included. Geyer was granted pension credits starting with December 14, 1935, the union initiation date. Woyzick's file contained a -letter showing he started employment in 1927. No specific date was mentioned. Woyzick was granted pension credits starting with September 7, 1927, the union initiation elate. The record contains no explanation why the trustees chose the initiation date in the last three cases. This decision does not pass in any way upon the rightness or wisdom of the trustees' decisions. It deals only with that aspect of the administration of the fund that is alleged to be violative of the Act. Viewed from the latter aspect, the trustees' decisions are not considered unreasonable. The records before the trustees, as shown above, contain no definite date of employment. For fund purposes a particular time must be fixed. To resolve this problem the trustees selected the one item that reliably specified a time, the union- initiation date. It could reasonably be concluded that as of that date each of the three applicants were or had started working for the specified employers. Such a decision undoubtedly gave significance to the union initiation date. In the, opinion of the writer it did not give the date improper or illegal significance nor was its use to resolve a procedural problem discriminatory. With regard to two applications (King and De Stefano) pension credits were granted as a result of the combined evidence of the application and the union records. King's application claimed employment from 1934 with R. R. Motor Haulage, Inc. No employer records could be obtained. The union record showed the name of his employer to be "R & R," and also, contained King's initiation date. -King was granted pension credits from September 19, 1934, the initiation date. De Stefano was a case similar to King's. His application claimed employ- ment by De Stefano Trucking in 1934. No employer records were obtainable. The union record showed that he had been employed by four trucking companies including De Stefano. Also, social security records showed De Stefano employed,by De Stefano Trucking in 1937. De Stefano, was granted pension credits commencing with September 6, 1934, his initiation date. As with the three cases dealt with in the preceding paragraph, no explanation of the choice of initiation date is given. However, as in those cases, it appears from the combined records of the applicant and union that King and De Stefano started employment some indefinite time in 1934. Accordingly,, in the opinion of the writer the reasoning applied to the above three cases applies equally well to these two. The next 10 cases are those listed by the General Counsel as violative of the Act because the consistent use of the 27 A secondary argument of the General Counsel is that the initiation date being later than the employment date claimed by the applicant, there was a resultant loss of pension credits. This secondary argument is also rejected. This argument appears to be based on the premise that the trustees should accept the employment date stated by the applicant in his application Such a premise goes to the discretion and judgment of the trustees in dealing with the evidence before them. That discretion is not subject to review by the Board except where it is shown to be violative of the Act. It is significant and patent that the Trustees did not accept the applicant's application as evidence of covered employment. Thus without initiation date to grant pension credits was based on a presumption of covered employment found illegal in Nu- Car Carriers, supra.27 - The basis for the General Counsel's contention that the illegal presumption was used in all 10 cases is the testimony of Scotto, the employer trustee regarding the decision by the trustees in the La Morte application, one of the 10 cases above mentioned. Following is a resume of the facts dealing with the La Morte decision. La Morse's application claimed he started covered employment in 1928 with V. A. Maturo & Co., Inc. Included in the file was an affidavit from the company stating that La Morte was a truckdriver for the company from 1928 to 1945. Social security records showed that V. A. Maturo was La Morte's employer commencing with 1937. La Morte was granted pension rights commencing with his union .initiation date of October 15, 1936. Scotto testified that the trustees made that determination because the facts before them showed "no evidence of covered employment." The trustees did not accept the affidavit from V. A. Maturo standing alone.28 The trustees accepted La Morte's•,initiation date as evidence of covered employ- ment because as Scotto stated, "There's a presumption there that if he's a union member, there would be covered employment." - Examination of the remaining nine cases shows that the initiation date as shown in the union records was used by the trustees to be the starting time for the commencement of pension credits. In granting pension credits the testimony of Scotto and the record as a whole shows that other evidence than the initiation date was also considered in making the determination. Of the nine remaining cases, six show evidence in the application, of employment that preceded the union initiation date. The union record or other evidence shows similar data. The trustees, however, used the initiation date as the commencement of the pension credits. No explana- tion for this action is given. The record data with regard to these six cases follows: Geis' application claimed he started working for the William Geis Trucking Corp. in 1929. A letter from the company stated he had started in 1926. The union record does not show any employer's name.,-Social Security records were not mentioned. Geis received pension credits commencing with his initiation date of September 7, 1934. The record contains no explanation for the use of the initiation date. No comment is made on the similarity of the names, of the applicant and the company.29 Firman's application claimed he was employed by Hasman & Bazt, Inc., commencing from 1929 to 1942. Social security records show'that Herman & Bazi'was his employer from 1937 forward.30 No record of Firian's employment prior to 1935 was available. Firman received the union records in those cases, the applicant would have been granted no pre-1937 pension credits. The use of the union records (including the initiation date) granted the applicant pension credits from the initiation date forward. In this manner, the applicant received more pension credits, not less as claimed by the General Counsel. This leaves for discussion the main contention of the General, Counsel dealing with the illegal presumption. 28 The record does not give the reason for this action 20 There is testimony in the record that owner-operators of trucking companies are not within covered employment. 30 The assistant administrator testified that Social Security records were (Continued) 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pension credits commencing with his union initiation date of April '9, 1935: Scotto testified that he did not recall what was considered by the trustees in the determination of Firman's case. Cohen's application claimed covered employment from 192331 with a firm called J. Cohen & Bros., Inc. The union record showed his employer at the time he joined the union to be with Cohen Bros. Social security data was not shown. No employer records were available. Cohen was granted pension credits from June 20, 1929, the date of his union initiation. Daum's application claimed employment by Daniels & Kennedy, Inc., from 1933 forward. Employer records did not cover employment from 1933 to 1936. Social security records were not shown. The union record showed employment with "D & K." Daum was granted pension credits commencing with July 11, 1936, his union initiation date. Connors' application claimed covered employment by Conboy Trucking Corp. beginning with 1926 or 1929. Social security data was not shown. No employer records were available. His union record showed an employer "Conboy Tkg." Connors was granted pension rights commencing with October 1, 1934, his union initiation date. - Zalewski's application claimed covered employment from June 1, 1935, with L. T. Stevenson Co., Inc. No employment records were available. Social security data was not shown. The union record showed that an employer was "L. T. Stevenson." Zalewski was granted pension credits commencing with November 4, 1935, his union initiation date. The three remaining cases are set forth herein as the record shows the data concerning each: D'Avola's application claimed covered employment from 1934 forward. No employer records were available. Social security data was not shown. The record contains no other information as to the action taken by the trustees except that D'Avola was granted pension credits com- mencing with January 1, 1935.32 Kelly's application claimed covered employment with J. M. Walker & Sons from 1932 or 1933 to 1937. Social security data was not shown. His union record shows employment as a driver with two firms other than Walker. No employer records were available. Kelly was granted pension credits from October 1, 1934, his initiation date. Krauss' application claimed covered employment with the Geeham Trucking Company from September 1930. Social security data was not shown. No employer records were available. His union record showed another employ- er. Krauss was granted pension credits commencing September 7, 1934, his union initiation date. used as evidence of pre-1937 employment because of the factor of continuity of employment. 31 In another place in the record this date is shown as 1920. 32 In the summary the date that D'Avola became a union member is shown as "1935 " The umon record in evidence showed a date 11-5-35. No explanation of these items is contained in the record. This discrepancy casts some doubt on the fact that January 1, 1935, was D'Avola's initiation date. 33 In agreement with that decision as found above , the provision d. Conclusion that the fund was not administered in violation of the Act In view of Scotto's testimony in the La Morte case it is not unreasonable-to conclude that the trustees gave effect to the initiation date in the above applicants' files to create a presumption of having worked in covered employment. The Teamsters and the Party in Interest do not deny this. In their brief they state, "In those instances where no employer records were available and the trustees were satisfied that the applicant 'worked in pre 1937 employ- ment, the initiation date into Respondent union was used as the commencement date for past service credits. . . . It represented the only prudent solution to a practical problem. The trustees ... applied a common factor to each of those claims." The General Counsel rightly states that "This is the same type of presumption which the Board found to be unlawful when embodied in a provision of a Pension Fund's rules and regulations in the Nu-Car Carriers Case."33 The distinction between Nu-Car and this case is contained in his statement. The Nu-Car Carrier decision forbids the inclusion of the presumption in the document establishing the fund. It does not forbid the use of the presumption where necessary to determine a particular case when all the facts involved are considered including that presumption. What is proscribed in Nu-Car is the preestablishment of the presumption as a matter of right. The subsequent use as a factor of evidence in the decision, making process is not proscribed. The use of presumption is a valuable tool in making determinations.34 Nothing has been shown in this case that the trustees used the presumption of covered employment herein in a manner forbidden by the Act. The General Counsel has not shown that the presumption was invalid,35 nor has he shown any particular case or cases wherein no evidence was considered but the initiation date of the applicant. As stated above and as an examination of the 32 cases shows, each case appears to have been resolved on its own merits. It turns out that the use of the initiation date benefits the union members. But it is not shown that such benefit is improper nor its use in making the pension credit grant improper. To a certain extent the existence of this presumption is a byproduct of union membership or collective bargaining which if not used improperly should not be denied a union member.36 Accordingly, on the record as a whole it is found that it has not been shown that the pension fund has been adminis- tered by the fund in a manner violative of the Act. Upon the foregoing findings and the entire record, I make the following: CONCLUSIONS OF LAW 1. Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen contained in the Teamsters fund agreement was found in violation of the Act. 33 For example, presumption of regularity, failure to produce evidence, of continuity, of continuing majority, etc. 35 To the contrary, taking into consideration the experience and knowledge of the trustees it is concluded that the presumption is valid. 36 See Nu-Car Carriers, supra, at 850 and 859. TRUCK DRIVERS LOCAL 807 267 and Helpers of America, at all times material herein, has been and is a labor organization within the meaning of Section 2(5) of the Act. 2. White Rock Beverages, Inc., at all times material herein has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. Assertion of jurisdiction in this proceeding is proper. 4. By entering into an agreement with White Rock and other employers engaged in commerce for a pension fund containing the following sentence: Consequently, anyone who was a member of Local 807 prior to the period commencing January 1, 1937 may, at the sole discretion of the Trustees, be given a year of Pension Credit for each year he was a member of Local 806 during this period. The Teamsters has restrained and coerced, and is continu- ing to restrain and coerce, employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(b)(1)(A) of the Act, and has caused and attempted to cause and is continuing to cause and attempt to cause employers, including White Rock, to discriminate against employees in violation of Section 8(a)(3) of the Act, thereby violating Section 8(b)(2) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Teamsters has not engaged in any violation of the Act in the actual administration of the fund. THE REMEDY Having found that the Teamsters has engaged and are engaging in unfair labor practices, it is recommended that Teamsters be required to cease and desist therefrom and post appropriate notices in effectuation of the policies of the Act. Upon the foregoing findings of fact, conclusions of law, the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 37 Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, representatives on the pension fund of the N. Y. C. Trucking Industry, Local 807, shall: 1. Cease and desist from: (a) In any manner subscribing, or being party, to, maintaining, supporting, or participating in the pension program or pension fund established by or arising out of or in relation to a certain agreement and declaration of trust, dated December 1, 1950, or other instrument, as reflected or implemented in any rules and regulations, or practices, adopted or followed thereunder, insofar and so long as any thereof (1) provide or allow service credits for pension purposes based upon or arising out of union membership, or (2) provide or allow service credits for pension purposes based upon union membership as establishing or support- ing a finding or conclusion, or employment under a collective agreement cognizable for pension entitlement purposes in whole or in part, or (3) provide or allow service credits on any other basis discriminatorily in violation of the National Labor Relations Act, so as to favor union members over nonunion employees employed under the same collective agreement or in the same collective- bargaining unit as such union members. (b) In any manner causing White Rock Beverages, Inc., or any other employer engaged in commerce, through contribution to, solicitation or request to contribute to, or participation in such pension program, plan, or fund, to discriminate against employees so as to encourage or discourage union membership or otherwise so as thereby to violate Section 8(a)(3) of the Act. (c) In any like or related manner (I) violating Section 8(b)(])(A) or (2) of the Act, or (2) causing White Rock Beverages, Inc, or any other employer engaged in commerce, to violate Section 8(a)(3) of the Act, or (3) restraining or coercing employees in the exercise of any rights guaranteed in Section 7 of the Act. 2. Take the following affirmative actions, which are necessary to effectuate the policies of the Act: (a) Forthwith transmit to the trustees of the pension fund of the N. Y. C. Trucking Industry, Local 807 copies of this Decision and take the necessary steps to implement the requirements of this Order_ (b) Post at its business offices and meeting places, and cause to be posted at the premises- of the pension fund, copies of the notice attached hereto marked "Appendix."38 Copies of said notice, on forms provided by the Regional Director for Region 29, shall be duly signed and posted immediately upon receipt thereof and maintained for 60 consecutive days thereafter in conspicuous places, includ- ing all places where notices to members and to pension fund applicants are customarily posted. Reasonable steps shall be taken to insure said notice is not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 29, in writing, within 20 days from receipt of this Order, what steps have been taken to comply therewith.39 IT IS FURTHER ORDERED that the complaint be dismissed as to the allegations not found herein to be unfair labor practices. In keeping with the foregoing, the motions to dismiss the complaint are denied and the affirmative defenses alleged are found inadequate. The contention is not valid that the article III, section 2(a) cannot be considered to encourage or discourage membership in any labor organization within the meaning of Section 8(a)(3) because it relates to the period prior to January 1, 1937. The rationale for this conclusion is laid out in Nu-Car Carriers, supra, at 863 and the cases cited in footnote 3, page 851. 37 In the event no exceptions are filed as provided by Section 102.46 of the Board's Rules and Regulations, the findings, conclusions, recommenda- tions, and recommended Order herein shall, as provided in Section 102.48 of said 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. 311 In the event the Board's Order is enforced by a Judgmentofa United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 79 The Remedy and Order herein are based on those contained in Nu-Car Carriers, supra 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX to encourage or discourage union membership, in violation of the National Labor Relations Act. NOTICE To EMPLOYEES AND MEMBERS WE WILL NOT in any like or related manner restrain POSTED BY ORDER OF THE or coerce any employee in the exercise of any of his NATIONAL LABOR RELATIONS BOARD rights under the National Labor Relations Act. Any Agency of the United States Government After a trial in which all sides had the opportunity to present evidence and arguments, the National Labor Relations Board has decided that this Union has violated the National Labor Relations Act by being a party to, maintaining, and participating in a pension program and fund which unlawfully discriminates in favor of persons who were members of a Teamsters union prior to January 1, 1937. The National Labor Relations Board has accord- ingly ordered us to discontinue this feature of the pension Dated By program and fund and to post this notice. WE WILL NOT subscribe, or be a party, to, maintain, support, or participate in any pension program, plan, or fund which, in violation of the National Labor Relations Act, discriminatorily favors past or present union members in the award of service credits or otherwise in connection with qualifying for pensions. WE WILL NOT in any way cause an employer, including White Rock Beverages, Inc., through contrib- ution to or participation in any such pension program, plan, or fund, to discriminate against employees so as TRUCK DRIVERS LOCAL UNION No. 807, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) (Representative) (Title) 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, 16 Court Street, 4th Floor, Brooklyn, New York 11241, Telephone 212-596-3750.