Bailey Distributors

BAILEY DISTRIBUTORS Donald Browne d/b/a Bailey Distributors and Timo- thy Nevins. Case 2-CA-18022 14 April 1987 SUPPLEMENTAL-DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 21 January 1986 the Board issued a Decision and Order in this proceeding ' dismissing the com- plaint.2 The Board determined that dismissal was appropriate because a prior arbitration between the Respondent and the Union, which "met, the Spiel- berg and Raytheon standards for deferral,"3 has re- solved the issues raised by the complaint. On 23 June 1986 the United States Court of Appeals for the Second Circuit remanded the case to the,Board for further proceedings.4 The court determined that the Board's deferral to the arbitrator's decision had been appropriate re- garding the allegation that the Respondent dis- criminated against Nevins by not affording. him the same terms and conditions of employment as union members also employed, as, "helpers."5 The arbitra- tor determined that from November 1977 to Janu- ary 1981 Nevins had never worked as a helper, only as a relief driver and driver. The arbitrator determined that when Nevins worked as a relief driver and driver he had been afforded the same terms and conditions of employment as union mem- l 278 NLRB 103. 2 The pertinent part of the complaint alleged that the Respondent dis- criminated against Timothy Nevins, a nonunion member of the bargain- ing unit, with regard to his "hire or tenure or terms or [sic] conditions of employment." The complaint alleged that the Respondent violated Sec. 8(a)(1) and (3) of the Act by, paying Nevins "lower wages and rates of pay and lesser benefits than members of the Union" who also held the position of "helper " The complaint further alleged that on 5 January 1981 the Respondent violated Sec. -8(aXl) and (3) of the Act by condi- tioning "its employment of Nevins [as a helper],upon Nevin' s [sic], refm- quishment of his rights to those wages, hours and other terms and condi- tions of employment set forth in the then current collective-bargaining agreement." On 3 January 1983 Administrative Law Judge Robert T. Snyder issued a decision in which he determined that the Respondent had discriminated against Nevins. Judge Snyder found both 8(a)(3) and (1) violations Sub- sequent to the judge's decision, Olin Corp., 268 NLRB 573 (1984), was issued and the Board remanded the present case to the judge for further consideration. Judge Snyder issued a supplemental decision on 25 June 1984 in winch he found that, deferral was not appropriate,, he reaffirmed his previous decision. 8 Citing Spielberg Mfg. Co.,-112 NLRB 1080 (1955), and Raytheon Co., 140 NLRB 883 (1963), set aside on other grounds 326 F.2d 471 (1st Cir 1964). 4 Nevins v NLRB, 796 F.2d 14 (2d Cir. 1986). 5 Since 1974 the Respondent and the Soft Drink Workers Union Local 812 I.B.T. have been signatories to successive collective-bargaining agreements. One such agreement was in effect from 1 June 1978 to 31 May 1981. The collective bargaining agreement covered three classifica- tions of employees: route 'salesmen, route drivers, and, utility drivers and helpers. 647 bers. In affirming the- Board's decision to defer on this allegation, the court said: As to Nevins's first statutory claim, discrimi- natory treatment in his employment as a helper, we have little difficulty in concluding, as did the NLRB, that the arbitrator's determi- nation of Nevins's employment status disposed of the issue. 6 Accordingly, this allegation is not before the Board. The allegation that is now before the Board pur- suant to the court 's remand is Nevin's second statu- tory claim-that on 5 January 1981 the Respondent conditioned its offer of employment (as, a helper) on Nevins' accepting subscale wages, i.e., wages below those specified in the collective-bargaining agreement for an employee performing the job of, helper. The court determined that deferral on this allegation was not appropriate as the Olin standard had' not been satisfied. The court held that the issues before the arbitrator were not factually par- allel to those of the second statutory claim. The Board accepted the remand and the General Counsel filed a brief on 22 October 1986. The National Labor Relations Board has delegat- ed its authority' in' this proceeding to a three- member panel. Having accepted the remand, the Board must ob- serve the court's opinion as -the law of the case and, necessarily, its judgment that the Board im- properly deferred to arbitration on Nevins' second statutory claim. The Board has considered the entire record, the court's decision, and the General 'Counsel's brief and has decided to adopt the judges rulings, find- ings,' and conclusions but only as to Nevins' second statutory claim. The Respondent is engaged in the nonretail sale and distribution of beverages from its warehouse located-in the Bronx, New York. The,Board's prior decision contains an extensive discussion of the facts and positions of the parties regarding the nature of the employment relationship and the actual jobs that Nevins, performed during the period from November 197.7 to 5 January 1981. .The record shows that on 2 January 1981, a Friday, Nevins worked for the Respondent as a relief driver. On 5 January 1981 Nevins was 796 F.2d at 18. The Respondent has previously excepted to some of the credibility findings 'in the Judge's decision and supplemental decision. The Board's established policy is not to overrule an administrative law judge's credi- bility resolutions unless the clear preponderance of all the relevant evi- dence„convinces is that they are incorrect . Standard Dry Wall Products, 91 NLRJ3 544,(1950), enfd 188 F.2d 362 (3d Cir. 1951). We have careful- ly examined the record and find no basis for reversing the findings. 283 NLRB No. 97 648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD present in the Respondent's warehouse at the start of the business day. The Respondent's owner, Browne, was preparing to drive one of the delivery trucks on its scheduled daily route. Browne turned to Nevins and offered to employ him as a helper for that day if Nevins would accept $40-$50 for the day's work, and would provide his own trans- portation. The $40-$50 offer was below that called for by the collective-bargaining agreement. Nevins refused to work for less than he was entitled to as a bargaining unit member. Nevins declined the job of, helper and left the Respondent's warehouse. After this' incident, Nevins never again worked for the Respondent. The judge found that the Respondent's condi- tioning of its job offer on Nevins' accepting sub- scale 'wages deprived Nevins of his Section 7 rights. The judge found that the Respondent there- by' violated Section 8(a)(3) and (1) of the Act. We affirm the judge's finding of the violation. Accord- ingly, as alleged in the complaint, the Respondent unlawfully refused to hire Nevins for discriminato- ry reasons." ORDER The National Labor Relations Board orders that the Respondent, 'Donald Browne d/b/a Bailey Dis- tributors, Bronx, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discriminatorily refusing to hire individuals for bargaining unit positions unless the individuals accept subscale wages. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer -to employ Timothy Nevins in the posi- tion for which he is qualified and in which he would have been employed but for the discrimina- tion against him, or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings or other benefits- suffered as a result of the discrimination against him in the manner set forth in the remedy section of the administrative law judge's decision. 8 The judge and the court referred to this 8(a)(3) and (1 ) violation as a constructive discharge. We do not do so'because the arbitrator (in that portion of his decision to which the Board properly deferred) decided that prior to January 1981 the Respondent had not employed Nevins as a helper Therefore, on 5 January 1981 Nevins could not have been con- structively discharged from the position of helper as he had never held the position of helper (b) Remove from all personnel records and files, and any other records, any reference to Timothy Nevins' refusal to be employed by the Respondent under the discriminatory terms the Respondent of- fered him on 5 January 1981, and notify Nevins that it has done so and that its unlawful conduct on that date will not be used as a basis for future per- sonnel actions against him. (c) Preserve and, on request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due. (d) Post at its facility located in the Bronx, New York, copies of the attached notice marked "Ap- pendix." Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized 'representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for, 60 consecutive days in conspicuous places including all places where notices to employees 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. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 9 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discriminate against individuals by refusing to hire them for bargaining unit positions unless they accept subscale wages. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Timothy Nevins employment in the position for which he is qualified and in which he would have been hired but for the discrimina- BAILEY DISTRIBUTORS 649 tion against him, without prejudice to his seniority or any other rights or privileges to which he would otherwise be entitled. WE WILL make Timothy Nevins whole for any loss of earnings or any other benefits. resulting from the discrimination against him, less any net interim earnings, plus interest. WE WILL remove from all personnel records and files, and our other records, any reference to Timo- thy Nevins' refusal to be employed by us under the discriminatory terms offered him on 5 January 1981, and WE WILL notify him that we have done so and that our unlawful conduct on that elate will not be used as a basis for future personnel action against him. DONALD BROWNE D/B/A BAILEY DISTRIBUTORS