Teamsters Local 328 (Blount Bros.)

TEAMSTERS LOCAL 328 (BLOUNT BROS.) International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers Of America, Local Union No. 328 (Blount Brothers Corporation) and Kenneth W. Quinnell Sr. Case 30-CB-2126 29 April 1987 ORDER DENYING MOTION BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 20 March 1985 the National Labor Relations Board issued a Decision and Order in this proceed- ing.' On 18 September 1986 the Respondent filed with the Board a motion to reconsider and ' a brief in support of the motion. Thereafter, the General Counsel and the Charging Party filed replies. The Board has considered the Respondent's motion and brief and the General Counsel's and the Charging Party's replies and has decided to deny the Respondent's motion to reconsider for the fol- lowing reasons. In the decision reported at 274 NLRB 1053, the Board adopted the judge's findings that the Re- spondent had violated Section 8(b)(1)(A) and (2) in operating its hiring hall in a discriminatory manner. The Board ordered the Respondent to make whole the named Charging Party, Kenneth Quinnell Sr., as well as "all other job applicants similarly situat- ed for any loss of earnings they may have suffered ... by reason of the discrimination practiced against them." The Respondent, in its motion to re- consider, requests the Board to reconsider its deci- sion in this case and to delete from its Decision and Order the make-whole relief for "all other job ap- plicants similarly situated." In support of its motion, the Respondent relies on recent Board de- cisions in Laborers Local 426 (Building Contractors), 280 NLRB 610 (1986), and Laborers Local 158 (Contractors of Pennsylvania), 280 NLRB 1100 (1986). In their replies to the Respondent's motion, the General Counsel and the Charging Party agree with the Respondent that the language of the Board's Order should be narrowed and they re- quest that the Board grant the Respondent's motion. The judge in his decision in the underlying case initially rejected the Respondent's argument that the make-whole remedy should be limited only to the named Charging Party. In so doing, the judge found that the broad language of the complaint had placed the Respondent on notice concerning an al- legation of unlawful discrimination against the Charging Party and other employees; that the 1 274 NLRB 1053 (1985). 779 matter had been fully and fairly litigated at the hearing; and that the evidence showed the Re- spondent had engaged in discrimination against the Charging Party and other applicants for referral because of the length of their union membership, or because of other arbitrary -reasons not based on objective criteria and standards, and that the Re- spondent had failed to use objective consistent cri- teria not based on union membership in the referral of applicants. On these facts and findings, the judge thus found that an order, as sought by the General Counsel extending make-whole relief to the Charg- ing Party and other similarly situated employees, was appropriate in light of Board precedent, in- cluding Plumbers Local 198 (Jacobs/Wiese), 268 NLRB 1312 (1984). He also found this case, on these same findings and facts, distinguishable from cases where the Board had granted a limited make- whole remedy. See, e.g., Longshoremen ILA Local 851 (West Gulf Maritime Assn.), 194 NLRB 1027 (1972). In Building Contractors, the Board, relying on West Gulf Maritime Assn., found that a broad remedy providing make-whole relief to "applicants who were similarly discriminated against," in addi- tion to the charging party, was inappropriate, in the absence of evidence that any employee other than the charging party had applied for work through the hiring hall and was denied referral, or was otherwise discriminated against in such a way as to have suffered a loss of earnings. The Board thus limited the remedy there to the charging party. The instant case is distinguishable from West Gulf Maritime Assn., and thus distinguishable from Building Contractors, because here the Board, in the underlying proceeding, adopted the judge's conclu- sion that there is evidence that other employees sought referrals and "were subjected by the Re- spondent to an evaluation of an arbitrary and un- lawful criteria." 274 NLRB at 1060. In Contractors of Pennsylvania, the Board adopted the judge's recommendation that certain individuals named in the complaint and found to have been discriminated against because of their intraunion political and protected concerted activities be granted a make-whole remedy. However, the Board found- the judge' s inclusion in the make- whole order of unnamed individuals who "may have been discriminated against" to be overly broad and deleted that portion of the remedy. In so doing, the Board noted that it has ordered remedial relief to unnamed individuals similarly situated to named discriminatees in situations where there is evidence of discrimination against a defined and easily identified class. Noting the difficulties of es- tablishing what constitutes a political dissident 283 NLRB No. 119 780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD within a union, the Board found that the discrimin- atees in Contractors of Pennsylvania did not establish a class of individuals or that discrimination on a classwide basis had occurred. The Board thus found there that it was necessary to establish evi- dence of discrimination against each individual and that, in the absence of such evidence, a broad make-whole order was inappropriate. By contrast, in the instant case, the judge found there was evidence that a number of individuals had applied to the hiring hall and were subjected to discriminatory criteria regarding referral. Thus, unlike Contractors of Pennsylvania, the judge's find- ings showed discrimination, together with the exist- ence of identifiable employees who were discrimin- atorily treated. Thus, this case is distinguishable from Contractor's of Pennsylvania. As there is no basis for deleting` the language regarding similarly situated employees from the Board's original Deci- sion and Order, the Respondent's motion to recon- sider is denied.2 Accordingly, IT IS ORDERED that the Respondent's motion to reconsider is denied, 2 The concerns raised by the General Counsel in she reply are proper- ly a matter for compliance. Thus, if the General Counsel is unable to identify any particular individuals other than the Charging -Party who have suffered a loss of earnings as a result of discrimination by the Re- spondent, she may close the case once the Charging Party has been made whole and the requirements of subpars. 2(b) through (f) of the Order have been satisfied.