F & C Transfer Co., Inc.

F & C TRANSFER CO. 591 F & C Transfer Co., Inc. and Ray Prieto and Paper Products and Miscellaneous Drivers, Ware- housemen and Helpers , Local 27, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Party to the Contract. Case 22-CA-13361 20 November 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 117 June 1985 Administrative Law Judge Steven Davis issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and the Respondent filed a brief in response to the General Counsel's cross-excep- tions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, F & C Transfer Co., Inc., Jersey City, New Jersey, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Order. The complaint alleges that Respondent (a) threatened its employees with discharge to discourage them from joining Paper Products and Miscellaneous Drivers, Warehousemen and Helpers, Local 27, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Union), (b) afforded higher wages and greater benefits to employees who are mem- bers of the Union than it has afforded to employees who are not members of the Union thereby rendering unlaw- ful assistance to the Union and encouraging membership in the Union, (c) imposed onerous and more rigorous terms and conditions of employment on employee Felix Ortega by assigning him to more arduous and less agree- able work, and (d) discharged its employee Ray Prieto because he attempted to, or did, join, support, or assist the Union. Respondent's answer denied the material allegations of the complaint, and on 7 February 1985, the case was heard before me in Newark, New Jersey. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a corporation having an office and place of business in Jersey City, New Jersey, has been engaged in the interstate and intrastate transportation of freight. During the past year, Respondent derived gross revenues in excess of $50,000 from the provision of interstate freight transportation services. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), eni'd. 188 F 2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings Gary A. Carlson, Esq., for the General Counsel. Joel Spivak, Esq. (Solotoff & Spivak, Esq.), of Great Neck, New York, for the Respondent. DECISION STATEMENT OF THE CASE STEVEN DAVIS, Administrative Law Judge. Based on a charge and a first amended charge filed by Ray Prieto on 26 July and 28 September 1984, respectively, a com- plaint was issued on 28 September 1984 against F & C Transfer Co., Inc. (Respondent). II. ALLEGED UNFAIR LABOR PRACTICES Respondent has had a collective-bargaining agreement with the Union since at least 1981. Their current con- tract, which runs from October 1982 to September 1985, provides for coverage of employees including all chauf- feurs, helpers, and warehousemen. The contract also contains a union-security clause requiring membership in the Union after 30 days. Respondent's drivers pick up bonded and unbonded freight. Bonded freight are goods for which import duties have not yet been paid. In order to receive such freight, the driver must show a bond card to U.S. Cus- toms agents who are the custodians of the merchandise. In order to obtain a bond card, the driver must present the U.S. Customs Service with a letter from his employ- er verifying his employment and requesting that he be bonded, and he must complete an application. A. bond card is issued by the Customs Service about 2 months later. 277 NLRB No. 71 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. The Facts 1. The alleged discrimination against Ortega and Prieto Ray Prieto has been employed by Respondent since June 1981 as a truckdriver, and immediately became aware that the Union represented certain drivers. In July or August 1981, Joseph Cipollal called Preito into his office, and told him that he learned that he wanted to join the Union, and warned that if he joined the Union he would have to lay him off or discharge him. Cipolla added that he could not afford to pay ev- eryone union wages . Prieto replied that he wanted better pay and greater benefits. Cipolla said that he would give Prieto a raise and promised that things would "work out better" for him in the future. He received a raise of $25 per week a couple of months later. In mid-March 1984, driver Felix Ortega joined the Union.2 For about 1 week thereafter, Ortega was as- signed to perform work on the platform, loading and un- loading trailers. Ortega, who did not object to the assign- ment, did not do any driving that week and his regular vehicle was assigned to Prieto. Employees testified that generally, the drivers, including Ortega, help load and unload their vehicles, and all drivers work on the plat- form if they are required to unload the trucks at the end of the day.3 Prieto testified that on arriving with a full trailer the driver unloads it, and if they were not busy they would load the pallets. Driver Holowell stated that generally drivers like to be on the move, and not in one place for a full day, and that they do not like to do manual work, but if it is part of the job, they recognize that they must do it. In commenting on the difficulty of the platform work, Holowell stated that such work was harder than driving if one had to unload a 40-foot trailer alone. Following his week on the platform, Ortega was reas- signed to driving duties and given a rental vehicle to op- erate, which required manual loading and unloading of its cargo.4 After about 1 week he was reassigned to his regular vehicle. About 1 week after Ortega joined the Union, union representatives visited Respondent's premises on 22 March 1984. They gave applications to Prieto and other nonmembers. Prieto completed an application and gave it to the agent. The representative then spoke in private with Cipolla and then Cipolla and the agents told the men that they must have a bond card in order to obtain union membership.5 Only I nonmember, Benjamin i It was stipulated that Cipolla is an owner of Respondent, and admit- ted that he is its dispatcher 2 His union application is dated 16 March. 3 Prieto stated that although drivers regularly load and unload vehi- cles, they do not do so continuously, for I week at a time as Ortega did. However, Preito acknowledged that upon his return from a 7-month layoff in January 1984, he worked on the platform for 3 weeks before he resumed his driving duties. 4 Prieto asserted that the rental vehicle was unsafe, but was unable to specify what was wrong with it He said that it may not have had signal lights and he did not think the wipers were working The only improper equipment that Presto testified to was that it did not have mud flaps 6 That was the first time that Prieto heard of such a requirement Bowman, had a bond card at that time, and he was ac- cepted for membership.' There is some confusion as to what occurred next Prieto first testified that he was threatened by Cipolla in late March after the 22 March meeting, and then Cipolla gave him a letter to help him obtain a bond card. In con- trast, Prieto also stated that he was given the letter in May or June 1984 and then threatened. Regarding the threat, Prieto testified that Cipolla spoke to him alone in the drivers room.? Cipolla told him that if he followed Ortega's footsteps, he would be out of a job faster than he could "blink an eye." Prieto asked if he was threatening him, and Cipolla replied that he was "promising." Prieto then said that all he wanted was a raise, better benefits, and medical coverage. Ci- polla answered that "we'll work on this." About 10 July, Prieto told Cipolla that he had a court hearing and would not be at work on 10 July. On that day, Prieto picked up his bond card at the U.S. Customs Service and went to the Union. At the Union he told of- ficial Pat Crapanzano that he wanted to join. Crapanzano asked if he had a bond card and Prieto showed it to him. Crapanzano told him to sign up, and the Union accepted a $100 payment toward the initiation fee of $400. Prieto never told Respondent that he received a bond card or joined the Union that day. Daniel Masiello, a union agent, testified generally that upon receiving a completed application for membership the new member is given a ledger number, and his name, address, and employer's name is put onto a ledger card and entered into a computer. The completed checkoff authorization form is then mailed to the employer that day or the next few days . . . or depending on the time of the month we may wait until the end of the month when we send out the pre-billing and last month's dues receipts to the company which is the practice every month since the pre-billing has been initiated. It appears that Preito's information was properly en- tered into the computer and he was assigned ledger number 11797 about 10 July. That number appears to conform chronologically with the numbers assigned to Ortega-11710, who joined about 16 March and Bowman-11716, who joined on 22 March. In addition, the Union's computer issued a receipt for the partial pay- ment of the initiation fees. It thus appears that, notwith- standing Respondent's objections to Masiello's testimony, Prieto's application was processed in a routine and regu- lar manner. On 16 July, prior to coming to work, Prieto phoned Cipolla "in advance" because he did not want to cause problems for himself. He told Cipolla that he was unable to find a babysitter for his 12-year-old daughter and re- quested permission to bring her to work and have her 6 Prieto stated that Bowman and Ortega had bond cards before he began work with Respondent in 1981. 7 In his pretrial affidavit, Prieto stated that Ortega stood outside the room but was able to hear the conversation. This does not contradict his hearing testimony that he spoke to Cipolla alone in the driver's room. F & C TRANSFER CO. accompany him on the truck.8 Cipolla "cautioned" and "warned" him that it was contrary to insurance regula- tions and policy to have an unauthorized passenger in the truck because that person would not be covered by Respondent's insurance policy. Prieto responded that he would take the day off and lose a day's pay rather than lose his job. Cipolla then told him that he should come to work with his daughter because he was needed, but told him not to do it again because it was against the regulations. Prieto brought his daughter to work and she accompanied him in the truck that day. On 19 July, Prieto reported to work with his daughter. He did not call in advance because he did not have time to do so. Cipolla saw his daughter getting into the truck and told Prieto that he warned him about having unau- thorized passengers because it was against insurance company policy. Prieto replied that there was nothing he could do because he could not leave his daughter home alone. He offered to leave work and lose a day's pay. Ci- polla answered, "I have no choice. I'm going to have to let you work because I need you today." He also told Prieto to drive carefully. Upon his return to Respondent's premises at the end of the day, Prieto was told by Cipolla that he had to let him go because (a) Respondent's president Andrew De Giamo saw his daughter in the truck and (b) he was in- volved in a fatal accident and the insurance company did not want him driving. The accident, which occurred in January 1983, took place when Prieto, driving a passenger car, was involved in a multicar collision, resulting in one fatality. Prieto, who was not driving a Respondent vehicle and was off duty, received no summons, and his license was neither suspended nor revoked, but he did attend Department of Motor Vehicle hearings as a witness at which he was found innocent of any wrongdoing. Respondent has no written policy concerning carrying unauthorized passengers on its vehicles. Prieto's testimo- ny that no one has been disciplined for having such a rider was not contradicted. Three employees in addition to Prieto testified con- cerning nonemployee passengers on Respondent's vehi- cles. Benjamin Bowman stated that his son rode with him one or two times in prior summers. Cipolla told him not to bring his son any more, which Bowman described as "sort of a warning." In the summer of 1984, Bowman "took a chance" and again brought his son. Cipolla told him that it was against the rules, "I can't have it," and Bowman no longer brought his son . Bowman further stated that he believed that Cipolla told each driver who brought his child that it was "against the rules and policy." William Hollowell stated that he told Cipolla that his 14-year-old son would accompany him on the truck in the summer of 1983, and Cipolla did not reply, although at other times Cipolla told the drivers that it was against s In view of Prieto's testimony that he called in advance in order to avoid problems, I find that he called Cipoila for the purpose of seeking authorization to take his daughter to work I do not credit his testimony that he was calling simply to announce that he could not work that day 593 insurance policies to have unauthorized passengers in the truck. However, Cipolla never told him not to bring such passenger again . During the time that Hollowell's son came to work , Cipolla asked him if his son wanted to earn a day's pay by working with another driver. Hollowell refused the offer. William Simpson testified that nearly every driver, at one time or another, has an unauthorized passenger in his vehicle, and that he taught Cipolla's 16-or 177year-old son in his truck 2 or 3 years ago. Preito testified that it was "common practice" for drivers to have their children ride with them during work hours , but did not know whether Cipolla saw such passengers or warned the drivers.9 2. The alleged illegal assistance to the Union The complaint alleges that Respondent has afforded higher wages and greater benefits to employees who are members of the Union than it has afforded to employees who are not union members. The documentary evidence which includes the collec- tive-bargaining agreement, payroll records, the monthly reports that Respondent submits in payment of the Union's pension and welfare fund, and the parties' stipu- lation concerning the employees' union membership status, supports a finding that Respondent (a) made pen- sion and welfare contributions on behalf of its employees who were union members and did not make such pay- ments in behalf of its employees who were not union members, (b) paid its employees who were union mem- bers a higher wage rate than those who were not union members and, (c) when union dues were first deducted from the pay of a new member, his pay rate was immedi- ately increased to the rate received by other union mem- bers and at the 1 October effective date of contractual increases in wages, the new member received a wage raise. Thus, the records show that Bowman and Ortega, who joined the Union in March 1984, received weekly wages of $448 each in early April, and at the same time Respondent began making pension and welfare contribu- tions in their behalf. The records also showed that only those drivers who had bond cards were union members. The parties' collec- tive-bargaining contract, on its face, applies to all chauf- feurs, helpers, warehousemen, and others. There is no distinction drawn in the agreement between those having bond cards and those who do not. B. Analysis 1. Ortega Following Ortega's joining the Union, he was assigned for 1 week to the platform where he loaded and unload- ed vehicles. Following that, he was reassigned for I 9 In view of the testimony of Bowman and Hollowell regarding Cipol- la's comments to them concerning their children as passengers, I need not discuss the testimony of Prieto and others that Cipolla must have known that drivers rode with unauthorized passengers because of their presence in the driver's room and the lack of public transportation near Respond- ent's facility. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD week to driving duties and given a rental vehicle which required manual loading and unloading. During his week on the platform, Ortega's regular vehicle was assigned to Prieto. Ortega did not testify. Although these assignments, coming immediately after Ortega joined the Union, are suspicious and may perhaps have been unlawfully motivated, I find that the evidence is insufficient to support a finding that Respondent im- posed onerous and more rigorous terms and conditions of employment on Ortega by assigning him to more ar- duous and less agreeable work, as alleged in the com- plaint. No animus was demonstrated toward Ortega be- cause he joined the Union. Although Respondent offered no explanation for assigning Ortega to the platform and giving his vehicle to Prieto (a) employees testified that they regularly load and unload vehicles (but not continu- ously for 1 week), (b) Prieto performed such work for 3 weeks upon returning from layoff, and (c) drivers testi- fied that although they may not like to perform such manual work they recognize that they must do it if it is part of the job. Accordingly, it appears that the work Ortega was as- signed to perform was a regular part of the driver's duties and although it may have been less agreeable it was recognized by other drivers that when required, such tasks had to be performed as part of their assign- ment. Purolator Products, 270 NLRB 694 (1984). I ac- cordingly find no violation of the Act with respect to Ortega. 2. Prieto I find that the uncontradicted statement by Cipolla to Prieto that if he followed in Ortega's footsteps he would be out of a job faster than he could blink an eye, was an umistakable reference to Ortega's joining the Union and was an unlawful threat to discharge Prieto. This remark by Cipolla was consistent with Cipolla's similar uncon- tradicted remark to him 3 years earlier when Cipolla in- formed him that if he joined the Union he would have to lay off or fire him. Although no finding of violation may be based upon the 1981 remark because it is barred by Section 10(b) of the Act, that statement may be consid- ered in determining the Respondent's motive. Machinists Lodge 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411 (1960). The General Counsel alleges that Prieto was dis- charged because he attempted to or did join or support the Union. His case-in-chief shows that Prieto was inter- ested in the Union as early as 1981 and he was told by Cipolla at that time that Respondent could not afford to pay everyone union wages and that if he joined the Union he would be laid off or discharged. Prieto's inter- est in the Union continued and was know by Respond- ent, Thus, I have found that Prieto was unlawfully threatened with discharge in March 1984, if he followed Ortega's example of joining the Union, and Prieto was present that month in a group of employees who had signed cards and were told by Cipolla that only bond card holders were eligible for union membership. A fair inference may be drawn that Respondent re- ceived the dues-checkoff authorization form on or before 19 July and thus knew that Prieto had joined the Union. I base this inference on the past practice of the Union with respect to the procedure it followed when Felix Ortega and Benjamin Bowman joined the Union. Ac- cording to union agent Masiello, the member signs the application and also a dues-checkoff authorization form. The dues-authorization form is then sent by the Union to the employer. Ortega signed an application for the Union on 16 March 1984. The Union welfare and pension con- tributions report for March, prepared by Respondent, states that contributions were made for Ortega for 1 week and 4 days that month. Respondent was thus aware that Ortega became a union member as of a least 20 March-4 days after he signed the application. Similarly, Bowman signed an application on 22 March. The union contributions report states that pension and welfare payments were first made in his behalf for the entire month of April which began on 2 April, a Monday. Respondent was thus aware that Bowman became a union member as of at least 2 April- 11 days after he signed the application. The parties stipulated that the pension and welfare contributions were made by Respondent in behalf of union members, and it is thus clear that the dues authori- zation forms of Ortega and Bowman were received by Respondent 4 and 11 days, respectively, after they signed their union applications. Prieto's application was proc- essed on 10 July upon his partial payment of the initi- ation fee, and on 19 July he was discharged. An infer- ence may properly be drawn that his dues checkoff form was received by Respondent on or before 19 July-9 days after his application was processed. Union Agent Masiello's testimony supports such a fording. He stated that the dues authorization form is sent to the employer "that day or the next few days." Although he also testi- fied that, depending on the time of the month, the Union sometimes waits until the end of the month, it appears that is done only when the application is signed or proc- essed toward the latter part of the month. It thus appears that Prieto's form, which was processed on 10 July, was sent out in a matter of days because the cards of Ortega and Bowman being processed later in the month, on 16 and 22 March, respectively, were mailed in a timely manner to Respondent. t o I, accordingly, find that Prieto's dues-authorization form was received by Respondent before 19 July or on 19 July but before he was discharged. Respondent's animus toward Prieto is clear. It advised him in 1981 that it could not afford to pay everyone union wages and it would discharge him if he tried to join. The threat to discharge was repeated in March 1984. This animus is not diminished by the fact that Re- spondent helped Prieto obtain a bond card by providing him with a letter for the Customs Service which enabled 10 Respondent's payroll records are inconclusive on this issue Ortega's record indicates that in the week ending 5 April, $46 or 2 months dues were deducted from his pay But the following week , ending 12 April, a $46 credit was entered on the form Bowman's payroll record indicated that in the week ending 5 April, $23 or 1 month's dues was deducted from his earnings, but in the follow- ing week ending 12 April a $23 credit was entered on his form Inasmuch as no testimony was offered to explain these payroll records, it is impossi- ble to make any significant findings concerning these entries. F & C TRANSFER CO. him to procure that card. It is to Respondent's benefit to have its employees bonded so that they alone may sign for bonded freight, rather than have to assign a bonded driver to go to the pier to sign for the merchandise. Re- spondent apparently was willing to have its drivers bonded and utilize such certification only until they sought union membership. Such membership carried with it increased wages and pension and welfare contri- butions which were substantial. Thus, when Ortega and Bowman joined the Union in March 1984, Ortega's weekly wages were increased from $383 to $448 for a 40-hour week, and Bowman's weekly wages were raised from $398 to $448. Later, on 1 October 1982, both re- ceived a $20-per week raise pursuant to the contract. Similarly, Respondent made weekly contributions to the Union of $43 for welfare and $63 for pension for each employee when they joined the Union. Thus, union membership involved a substantial, increased cost to Re- spondent-$48911 per month for Ortega and $47412 for Bowman. Respondent's desire to avoid these extra costs is evi- denced by its 1981 uncontradicted remark to Prieto that it could not afford to pay everyone union wages. Clearly the motive for his discharge was Respondent's wish to prevent him from joining the Union. The knowledge that Respondent possessed of Prieto's union activities and his continued interest in membership; the animus displayed toward him as evidenced by the undenied threats to dis- charge him if he joined the Union; the motive for the discharge in Respondent's alleged inability to pay union wages; and the timing of the discharge coming shortly after he visited the Union and his application for mem- bership was processed, which included the receipt by Respondent of the dues-authorization form, all combine to warrant a finding that the General Counsel has made a prima facie showing that Prieto's protected activity was a motivating factor in Respondent's decision to dis- charge him. Wright Line, 251 NLRB 1083 (1980). Respondent has the burden of showing that it would have taken the same action against Prieto in the absence of his union activities. Wright Line, supra. I find that it has not met its burden. The reasons given Prieto at the time of his discharge were that (a) Respondent's president saw Prieto's daugh- ter in the truck and (b) Respondent's insurance company did not want him to drive, due to his prior accident.13 The second reason, that Prieto was being discharged because of the accident and Respondent's insurance com- pany did not want him driving its vehicles, is clearly pre- textual. The accident occurred in January 1983, 1-1/2 years before the discharge, and involved Prieto driving a private passenger car while off duty. His driver's license was not suspended or revoked, he received no summons i i wages of $448 less $383 equals $65 per month Weekly pension and welfare contributions totalling $106 equal $424 per month Thus, $65 and $424 equals $489 12 Wages of $448 less $398 equals $50 per month, plus monthly pen- sion and welfare contributions of $424 equals $474 13 Prieto's testimony that he was given that second reason at the time of his discharge is believed Respondent's argument that Prieto's failure to mention that reason in his pretrial affidavit renders his testimony in- credible is rejected Presto's testimony as to his discharge interview was not contradicted by Respondent, who did not call any witnesses 595 for violations, and was cleared of any wrongdoing in a Department of Motor Vehicles proceeding. Nothing was apparently said to him about the accident by Respondent until his discharge, and he was permitted by it to contin- ue to operate its vehicles continuously until he was ter- minated. No evidence was adduced of any communica- tion between Respondent and its insurance company con- cerning the accident or Prieto's fitness to drive. The first reason, the carrying of his daughter on the truck, is equally invalid, although slightly more trouble- some. On 16 and 19 July Prieto brought his daughter to work and was expressly permitted by Respondent's owner and dispatcher Cipolla to take her on the truck with him. Prieto admits that on both days he was warned that it was against insurance company policy to carry unauthorized passengers and was told on 16 July not to do it again. However, Cipolla, being fully aware that Prieto again disobeyed orders, failed to warn him that he would be discharged if he brought his daughter, but rather, in con- trast, authorized his carriage of his daughter. Moreover, although Cipolla could have fired Prieto on the spot for his actions, he did not do so and did not threaten him with discharge. In this regard there is no evidence that prior to 19 July any discipline was ever given to drivers who carried unauthorized passengers nor was there any evidence that any drivers were threatened with discipline or discharged for such conduct. Rather, in contrast, it appears that other drivers in the past carried their chil- dren but were not disciplined for doing so, although they were sometimes warned for such behavior. NLRB Y. Transportation Management Corp., 462 U.S. 393 (1983). Such inconsistent and disparate treatment diminishes Re- spondent's asserted justification for its discharge of Prieto. Brigadier Industries, 267 NLRB 559, 566 (1983); Moore Co., 264 NLRB 1212, 1214 (1982). I accordingly find and conclude that Respondent has failed to demonstrate that it would have taken the same action against Prieto in the absence of his union activi- ties. 3. The alleged illegal assistance to the Union The parties' collective-bargaining contract, on its face, applies to all drivers. The drivers, mechanic, and helper work on the same premises and report to Cipolla. The drivers do identical work-they work the same hours, are dispatched by Cipolla, drive the same types of trucks, and service the same customers. They thus share a genuine community of interest. The collective-bargaining agreement provides that Re- spondent "recognizes and acknowledges that the Union is the sole and exclusive bargaining agency [sic] for the purpose of collective bargaining . . . for all classifica- tions of employees listed in the wage schedule of this Agreement," which includes chauffeurs, helpers and warehousemen. It is thus clear that the Union is the ex- clusive bargaining agent for member and nonmember employees, and Respondent could not, without violating the Act, discriminate in wages solely on the basis of such membership. Radio Officers v. NLRB, 347 U.S. 17, 47 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1954); Schorr Stern Food Corp., 227 NLRB 1650, 1653- 1654 (1977). It is admitted and I find that Respondent paid the con- tractual wage rate to and made pension and welfare con- tributions for all union members in the bargaining unit, but paid significantly less wages to and did not make contributions for the employees in the unit who were not members of the Union. This it cannot lawfully do. Kauf- man DeDell Printing, 251 NLRB 78, 79-80 (1980). Respondent concedes that the contract is silent as to bonded or nonbonded employees, and argues that the parties' practice was that the contract would be- applied only to those employees who had bond cards and that only such employees were in the bargaining unit. I reject this argument. As set forth above, the contract on its face applies to all chauffeurs. There is no mention in the contract of any distinction between' employees who have or do not have bond cards.14 Parol evidence may not be used to estab- lish that the Union represents only bonded drivers where ,the contract states otherwise. Schoor Stern Food Corp., supra. Moreover there was no evidence that the "practice" of applying the contract only to bond card holders was in effect at any time before 22 March. It was obviously ap- plied selectively, apparently at the behest of Respondent, which, according to Prieto's undenied testimony, stated that it could not afford to pay every driver union wages. The Union was apparently not even aware of this "prac- tice" because, at its 22 March visit to the shop, its agents distributed application cards to all the nonmembers with- out first asking them if they held bond cards. It was only after a consultation with Respondent that the union rep- resentatives announced that only bond card holders were eligible for union membership.' s It is thus clear that contractual wages and benefits were provided for union members because they were union members and not because they obtained bond cards. Thus, Bowman and Ortega, who apparently had bond cards before the 22 March visit to the shop by the Union, did not receive such contractual advances until they became union members. It was therefore the acqui- sition of union membership that triggered wage increases and other benefits for the employees permitted to join the union. For the foregoing reasons, I find that Respondent vio- lated Section 8(a)(2) and (1) of the Act by applying the terms of the collective-bargaining contract only to union members. This compensated employees for union mem- bership and thus unlawfully assisted the Union. Also, by making these benefits available only to union members, nonunion unit employees were restrained in their rights to refrain from becoming members of the Union in viola- tion of Section 8(a)(1) of the Act. It is further found that 14 The drivers having bond cards do the same work as nonbonded em- ployees, with the only exception being that only the bonded drivers may sign for bonded merchandise However once signed for, the nonbonded worker may transport the goods The difference, therefore, between bonded and nonbonded workers is insignificant. rs The Union's constitution and bylaws, which would have set forth such a qualification for membership if one existed, was not offered in evi- dence Respondent, by providing greater remuneration in the form of higher wage rates and other contractual benefits to union members than to nonunion members for the work which unit members performed, thereby discrimi- nated in regard to terms and conditions of employment in a manner which would tend to encourage membership in a labor organization. I therefore conclude that the Re- spondent violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS -OF LAW 1. Respondent F & C Transfer Co., Inc. is, and at all times material herein has been, an employer engaged in commerce within the meaning of the Act. 2. By failing to apply the terms of its collective-bar- gaining contract to its employees in the collective-bar- gaining unit who are not members of Local 27, Intema- tional Brotherhood of Teamsters, and by otherwise fail- ing or refusing to grant such employees wage increases and to make contributions to pension and welfare funds because such employees are not members of the Union, and by rendering unlawful assistance and support to the Union by discriminating in regard to the hire or tenure or terms or conditions of employment of its employees, thereby either discouraging or encouraging membership in a labor organization, Respondent has violated Section 8(a)(1), (2), and (3) of the Act. 3. By discharging Ray Prieto on 19 July 1984 for at- tempting to join or for joining and supporting or assist- ing the Union, the Respondent violated Section 8(a)(1) and (3) of the Act. 4. By threatening its employees with discharge if they joined the Union, Respondent violated Section 8(a)(1) of the Act. 5. Respondent has not violated the Act , as alleged in the complaint, by imposing onerous and more rigorous terms and conditions of employment on Felix Ortega by assigning him to more arduous and less agreeable work. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has committed certain unfair labor practices, I shall recommend that Respond. ent cease and desist and take certain affirmative actions designed to effectuate the policies of the Act. The complaint alleges that Respondent discriminated against its nonunion employees with respect to wages and benefits. On the basis of the entire record in this case, it seems clear that all the Respondent's nonunion employees who are or have been employed in the rele- vant unit since 26 January 198416 have suffered identical discriminatory treatment. Accordingly, it is recommend- ed that Respondent make whole all past and present non- union employees, similarly situated, who were employed by Respondent in work classifications embraced by the unit set forth in the current collective-bargaining agree- 16 26 January 1984 is the date 6 months prior to the filing and service of the charge herein, commencing the period cognizable under Sec. 10(b) of the Act F & C TRANSFER CO. ment during the period since 26 January 1984, for any loss of pay or other benefits they may have suffered by reason of Respondent's failure to apply the terms and conditions of the collective-bargaining agreement to theme in the same manner as it did to its union employees. Reimbursement shall be made for any losses suffered by nonunion employees by reason of the discrimination against them, together with interest thereon, in accord- ance with Isis Plumbing Co., 138 NLRB 716 (1962), as modified by Florida Steel Corp., 231 NLRB 651 (1977). Having found that Respondent unlawfully discharged Ray Prieto on 19 July 1984, I recommend that Respond- ent be ordered to reinstate him and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him. The amount of backpay shall be computed in the manner set forth in Isis Plumb- ing Co., supra, as modified by Florida Steel Corp., supra. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed'? OR]DER The Respondent, F & C Transportation Co., Inc., Jersey City, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discriminating in regard to terms and conditions of employment of employees by failing to grant them the wages and benefits provided for in the collective-bar- gaining agreement with Paper Products and Miscellane- ous Drivers, Warehousemen and Helpers, Local 27, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, because of the employee's membership or lack of membership in that labor organization. (b) Discharging or in any other manner discriminating against employees because they engage in union activi- ties. (c) Threatening employees with discharge if they joined the Union or sought to be represented by it. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole all present and former nonunion em- ployees in the collective-bargaining unit as set forth in the current collective-bargaining contract in Respond- ent's employ during the period since 26 January 1984, for any loss of wages and other benefits and other terms and conditions of employment they would have received since that date but for the discrimination against them. (b) Offer Ray Prieto immediate and full reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his se- niority or any other rights or privileges previously en- 17 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 597 joyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him in the manner set forth in the remedy section of the decision. (c) Remove from its files any reference to the unlawful discharge and notify the employee in writing that this has been done and that the discharge will not be used against him in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Jersey City facility copies of the at- tached notice marked "Appendix.""' Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations not specifically found herein. 18 If 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 Nation- al 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminate in regard to terms and con- ditions of employment of employees by failing to grant them the wages and benefits provided for in the collec- tive-bargaining agreement with Local 27, International Brotherhood of Teamsters, because of the employees' membership or lack of membership in that labor organi- zation. WE WILL NOT discharge or in any other manner dis- criminate against employees because they engage in union activities. WE WILL NOT threaten employees with discharge if they joined the Union or sought to be represented by it. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole all present and former nonunion employees in the collective-bargaining unit, as set forth in the current collective-bargaining contract, in Respond- ent's employ during the period since 26 January 1984 for any loss of wages and other benefits and other terms and conditions of employment they would have received since that date but for the discrimination against them. WE WILL offer Ray Prieto immediate reinstatement to his former job or, if that job no longer exists , to a sub- stantially equivalent position, without prejudice to his se- niority or any other rights or privileges previously en- joyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings , plus interest. WE WILL notify him that we have removed from our files any reference to his discharge and that the dis- charge will not be used against him in any way. F & C TRANSFER CO., INC.