Garage Employees Union Local No. 272

1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Garage Employees Union Local No. 272, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (Various Employers) and Ira Harris. Case 2-CB-9495 24 July 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, AND STEPHENS On 27 June 1983 Administrative Law Judge Authur A. Herman issued the attached decision. The General Counsel and the Respondent filed ex- ceptions and supporting briefs. 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, 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, Garage Em- ployees Union Local No. 272, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall take the action set forth in the Order. Sandra Grossfeld, Esq,, and Joel H Cohen, Esq., for the General Counsel. Ronald A. Straci, Esq. (Dublirer, Haydon, Straci & Victor), for the Respondent. DECISION STATEMENT OF THE CASE ARTHUR A. HERMAN, Administrative Law Judge. This case was tried before me on March 16, 1983, in New York, New York. Based on a charge filed on Sep- tember 27, 1982,1 by Ira Harris, an individual, a com- plaint issued on November 10, 1982, alleging that Garage Employees Union Local No. 272, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Respondent or Union) is restraining and coercing employees in the exer- cise of their Section 7 rights in violation of Section 8(bXl)(A) of the Act. On November 18, Harris filed an amended charge on which an amended complaint issued on December 2, alleging that in addition to the 8(bX1)(A) violations, Respondent also violated Section 8(bX2) of the Act in that it is causing various employers to discriminate against employees in violation of Section 8(a)(3) of the Act. Respondent's answers deny the com- mission of any unfair labor practices. 1 All dates hereinafter are 1982 unless otherwise stated. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by counsel for the General Counsel and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Metropolitan Garage Owners Association, Inc. (the Association) is an organization of employers who are en- gaged in owning and operating public garages and park- ing facilities in New York City. The Association exists for the purpose of representing its employer-members in collective bargaining and in administering collective-bar- gaining agreements with Respondent. Annually, the employer-members of the Association collectively derive gross revenues in excess of $500,000, and collectively purchase and receive, at their New York State facilities, materials valued in excess of $50,000 di- rectly from points outside New York State. The amended complaint alleges, Respondent does not deny, and I find that the Association and its employer- members are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The amended complaint alleges, the answer does not deny, and I find that Respondent is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Pursuant to a collective-bargaining agreement execut- ed by the Association and Respondent , effective from February 6, 1980, to February 5, 1983, at all times mate- rial, Respondent operated an exclusive hiring hall for the employment of garage employees. Respondent's International constitution and bylaws contains the following pertinent sections relating to the issuance of withdrawal cards to members . Article XVIII, section 5, provides: (a) When a member becomes unemployed in the jurisdiction of the Local Union, he shall be issued an honorable withdrawal card upon his request .... The member shall continue to pay his month- ly dues through the month in which the withdrawal card, if issued, is effective. (c) There shall be maximum charge of fifty cents (50$) to any member issued a withdrawal card, and it shall be the duty of the Secretary-Treasurer of the Local Union receiving such charge duly to record it in his ledger. (e) Withdrawal cards shall be issued and accepted in accordance with the provisions of this Section and Section 6 and shall be issued in the form pre- scribed by Section 6. (f) The Local Union shall not charge an initiation fee on the deposit of a withdrawal card. (g) To be eligible for a withdrawal card a member must have paid to the Local Union issuing 280 NLRB No. 138 TEAMSTERS LOCAL 272 (VARIOUS EMPLOYERS) the withdrawal card all dues and other financial ob- ligations as a member, including dues for the month in which the withdrawal card is effective. (h) The Local Union shall collect a month 's dues for the month in which the withdrawal card is deposited. In no case shall the Local Union, when accepting the with- drawal card, charge the member dues for the month in which it was effective. Article XVIII, Section 6(d) provides: Any ex-member out on a withdrawal card, and desiring to return to membership, must first deposit his withdrawal card with the Local Union by which it was issued, and upon the withdrawal card being accepted, the member shall be subjected to the rules and laws of the Local Union. Ira Harris testified that he had been a member of Re- spondent for 10 years; the last time he worked prior to July 16 was in May; that when he paid his dues on July 16 he took Respondent's cashier's advice and he request- ed a withdrawal card, thereby avoiding the payment of dues until he obtained a job. Harris further testified that from July 16 until sometime in November he appeared at Respondent's hiring hall on almost a daily basis and was told by Joseph Hartnett, Respondent's vice president, that he could not send Harris out on a job because he had a withdrawal card.2 On November 12, Harris turned in his withdrawal card and paid $60 to Respondent; that sum represented 4 months' dues; the money appears to have been applied by Respondent as dues for August, September, October, and November.3 Joseph Salerno, Respondent's president, testified that Respondent's hiring hall was open to members and non- members alike, and that the person who is out of work the longest will be the first one referred to a job. He also stated that when a member applies for a withdrawal card, he must be a member in good standing . In addition, Salerno explained that when a member takes a withdraw- al card and then wants to return, the following rules apply: If he returns within a year, he is required to pay a 50-cent charge, and is expected to pay all the back dues, but he is given time to do so; if he returns after a year, he is only required to pay 1 month's dues; in both cases, there is no new initiation fee. According to Salerno, a withdrawal card freezes a person's membership; he is still a member of the Union but he gets no benefits . Salerno further stated that the Union will not refer a member while he has a withdrawal card.4 i The record shows that Harris was referred out once by Hartnett on a 4-day job in August. It seems that only two employees were present in the hiring hall at the time, and the other employee had just been fired by that particular employer for negligent handling of a vehicle. At that time, Hams did not give up his withdrawal card and Hartnett did not ask for it. a I draw this conclusion from the accepted fact , as stated by Salerno, infra, that a member cannot get a withdrawal card unless he is in good standing. And so, when Harris was given the withdrawal card in July, it indicates that be was paid up through July. * In his affidavit (G.C. Eah. 5, par. 6), Salerno offers two reasons for refusing to refer Harris: (1) Harris had a withdrawal card ; and (2) the Union had received complaints about Harris' drinking habits. 1257 Hartnett testified that it was the Union's policy not to refer a person to a job who is holding a withdrawal card. The only exception to the general rule is when the only persons seeking employment are those holding withdrawal cards. Hartnett acknowledged that he saw Harris in the hiring hall, that he sent him out on one oc- casion in August, as stated supra, fn. 2, and that Harris paid up his dues in November and turned in his with- drawal card, Hartnett referred him to other jobs. It was Hartnett's testimony that the only time Harris was unem- ployable was when he held the withdrawal card. In fact, the following excerpt from the record testimony between Hartnett and his counsel states quite clearly the policy adhered to by Respondent: Q. (By Mr . Straci) Mr. Hartnett, to try to clear this up maybe in my mind, can a member of Local 272 who takes a withdrawal card, can he go to work still maintaining the withdrawal card? A. In some cases we ask that they bring back the withdrawal card. And pay up the back dues. Q. What I am trying to get to, Mr. Hartnett, is there a difference between being on withdrawal status or having the actual card? A. Yes, there is. Q. Let's change the question that Mr. Cohen gave you because I think it had a hook in it. He asked you, I believe, if there was someone who was sitting on a bench for two years and someone who was sitting on a bench for one year and had a with- drawal card, which one you would send and you testified the man who was out for two years? A. Yes. Q. The question would be if you had a man who was out for years and had the withdrawal card and the man who was out for one year, which one would you send out? A. The man with the one year. On direct examination, Respondent introduced two pieces of evidence to point up the fact that Harris had a drinking problem. The first was a warning notice regard- ing Harris, dated December 3, 1980, from a management firm to the Union, and the second, a letter addressed to Respondent from another management firm, dated No- vember 10, 1982, advising Hartnett that Harris had been dismissed in June 1982, after 8 days on the job, because he "was suspected of drinking " and "disappeared for two days without calling." Analysis and Conclusions It is not disputed, and I fmd, that the Union's collec- tive-bargaining agreement with the Association estab- lishes an exclusive hiring hall arrangement , which obli- gates Respondent Union to comply with Section 8(bXIXA) and (2) of the Act in making job referrals, thus binding the Union not to use union considerations as a basis for such referrals. The evidence adduced at the hearing, however, dem- onstrates that Respondent conditioned referrals on imper- missible union considerations. Both Salerno and Hartnett testified, as illustrated by the quote, supra, that Respond- 1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent Union would not refer a member while he holds a withdrawal card. 5 And Harris testified, without contra- diction, that Hartnett told him that he would not send Harris out on a job while he held a withdrawal card.e Respondent, in an attempt to justify its unlawful posi- tion, introduced into evidence two exhibits that made reference to Harris' alleged habit of drinking on the job. It concluded from that that Respondent was limited re- garding which employers it could refer Harris, and therefore that it was justified in not referring him. I am not convinced. In the first place, one of the exhibits re- ferred to an incident that was alleged to have occurred in 1980, 2 years prior to Harris obtaining the withdrawal card, and the evidence established that Harris had worked during those 2 years. Second, the other exhibit defies credulity when one sees that, for no apparent reason, a letter is sent in November to relate to an al- leged occurrence that took place 5 months previously. Third, the uncontroverted evidence is so overwhelming to show the true reason for Respondent's refusal to refer Harris, that I must disregard Respondent 's defense. Accordingly, I find that Harris had been a member in good standing when he requested a withdrawal card in July, that he was under no obligation to pay dues while he held a withdrawal card , 7 that Respondent Union told him that it would not refer him while he held a with- drawal card, and that Respondent refused to refer him out of its exclusive hiring hall until such time as Harris turned in his withdrawal card and paid the dues for the period of time that he held a withdrawal card. Inasmuch as such refusal to refer was based solely on union consid- erations and nothing else, such action by the Union was violative of its exclusive hiring hall arrangements which required it to refer employees on a nondiscriminatory basis. Under the circumstances, I fmd that Respondent violated Section 8(bXl)(A) and (2) of the Act. CONCLUSIONS OF LAW 1. Metropolitan Garage Owners Association, Inc. is an employer association composed of employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Garage Employees Union Local No. 272, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent and the Association have maintained in effect and enforced a collective-bargaining agreement re- lating to the hire, tenure, and other terms and conditions s There appeared to be some controversy whether a member of the Union losses his status as a "member" when he requests a withdrawal card. The General Counsel, contrary to Respondent, contends that the language of the International constitution (sec. 6) implies a loss of mem- bership. I find the drawing of a conclusion either way to be inconsequen- tial, for I find the refusal to refer not to be based on union membership, but on other union considerations, namely, Harris' failure to pay dues that he was not required to pay while he held the withdrawal card. ° Hartnett's lame attempt to controvert Harris' testimony by stating that he sent Harris out in August on the 4-day job wa s adequately ex- plained above. ' Millwright & Machinery Erectors Local 740 (Tallman Constructors), 238 NLRB 159, 160 (1978). of employment of garage employees employed by the employer-members of the Association. 4. That agreement contains a provision requiring the employer-members of the Association to hire employees exclusively through Respondent 's hiring hall, which the Union shall operate on a nondiscriminatory basis. 5. By telling Ira Harris that he would not be referred because he held a withdrawal card, Respondent, through its vice president, Joseph Hartnett, engaged in unfair labor practices within the meaning of Section 8(bXl)(A) of the Act. 6. By failing to refer Ira Harris for employment to available positions during the period July 16, 1982, to November 12, 1982, because he held a withdrawal card, Respondent has operated a system for referral of em- ployees to the employers without any objective criteria or standards and in a discriminatory manner, and it has engaged in unfair labor practices within the meaning of Section 8(bXl)(A) and (2) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of that Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action to effectuate the policies of the Act. Having found that Respondent unlawfully caused Ira Harris to be denied referral to work at available positions since about July 16, 1982, and continuing to November 12, 1982, because he held a withdrawal card, I shall rec- ommend that Respondent make him whole for any loss of earnings he may have suffered as a result of the dis- crimination against him . The loss of earnings shall be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as set forth in Isis Plumb- ing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977).8 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER The Respondent, Garage Employees Union Local No. 272, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall 1. Cease and desist from (a) Restraining or coercing employee Ira Harris in the exercise of his rights guaranteed by Section 7 of the Act 9 Although the complaint, as amended, alleges that Respondent has maintained such an unlawful practice against all employees who held withdrawal cards, and the General Counsel seeks to include all employ- ees similarly situated in the remedy, I find that the record contains no evidence relating to other employees , and I shall therefore limit the mon- etary remedy to Hams. 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. TEAMSTERS LOCAL 272 (VARIOUS EMPLOYERS) by telling him that he will be denied employment refer- rals because he requested and obtained a withdrawal card. (b) Failing and refusing to refer Ira Harris for employ- ment to available positions because he requested and ob- tained a withdrawal card. (c) Operating an exclusive hiring hall and referral system for referral of employees to employer-members of the Association without any objective criteria or stand- ards and in a discriminatory manner. (d) In any like or related manner restraining or coerc- ing 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) Refer Ira Harris, and any other employee, to work at an available position with any of the employer-mem- bers of the Association pursuant to their request for re- ferral despite the fact that they hold withdrawal cards. (b) Make whole Ira Harris for any loss of earnings suf- fered as a result of the discrimination against him in the manner described above in the remedy section of the de- cision. (c) Reimburse or refund to Ira Harris the dues that Respondent unlawfully requested of him and that he paid to Respondent on November 12, 1982, plus interest as set forth in the remedy section of the decision. (d) Operate Respondent's exclusive hiring hall and re- ferral system for the referral of employees to members of the Employer's Association in a nondiscriminatory manner based on objective criteria or standards. (e) Preserve and, on request, make available to the Board or its agents, for examination and copying, all hiring hall records, dispatch lists, referral cards, and other documents necessary to analyze and compute the amount of backpay due Harris under the terms of this Order. (f) Post at its main office and hiring hall located in New York, New York, and at any other meeting place it operates for members or applicants for referral, copies of the attached notice marked "Appendix." 1 ° Copies of the notice, on forms to be provided by the Regional Direc- tor for Region 2, after being signed by 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 members or applicants for referral are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 1259 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT restrain or coerce Ira Harris in exercise of his rights guaranteed by Section 7 of the Act by tell- ing him that he will be denied employment referrals be- cause he requested and obtained a withdrawal card. WE WILL NOT fail or refuse to refer Ira Harris, or any other employee, for employment to available positions because they requested and obtained withdrawals cards. WE WILL NOT operate an exclusive hiring hall and re- ferral system for referral of employees to employer-mem- bers of the Metropolitan Garage Owners Association, Inc., without any objective criteria or standards and in a discriminatory manner. WE WILL NOT in any like or related manner restrain or coerce employees or applicants for employment in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL refer Ira Harris, and any other employee, for employment to available positions with any of the em- ployer-members of the Association pursuant to their re- quest for referral despite the fact that they hold with- drawal cards. WE WILL operate our exclusive hiring hall and referral system for the referral of employees to employer-mem- bers of the Association in a nondiscriminatory manner based on objective criteria or standards. WE WILL make whole Ira Harris for any loss of earn- ings suffered as a result of the discrimination against him. WE WILL reimburse or refund to Ira Harris the dues that we unlawfully requested of him and that he paid to us on November 12, 1982, plus interest. GARAGE EMPLOYEES UNION LOCAL No. 272, AFFILIATED WITH THE INTERNATION- AL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA 10 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."