Teamsters Local 282 (Willets Point Contracting)

56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO 1 (Willets Point Contracting Corp.) and John Kuebler. Case 29-CB-4937 March 15, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On June 19, 1986, Administrative Law Judge William F. Jacobs issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in opposition to the Respondent's exceptions. 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, and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by coupling its requests for the reinstatement of John Kuebler and Charles Curd at Willets Point Contracting Corp. (Willets), with a demand that Willets pay the backpay obligation that the Respondent was liable for under the Board's Order in Frank Mascali Con- struction, 251 NLRB 219 (1980), enfd. mem. 697 F.2d 294 (2d Cir. 1982), cert. denied 459 U.S. 988 (1982). 2 We disagree. In the Mascali decision, which issued August 15, 1980, the Board found the Respondent in violation of Section 8(b)(1)(A) and (2) by, inter alia, causing the discharges of Kuebler and Curd from Willets because of Kuebler and Curd's dissident union ac- tivity. To remedy the violations found, the Re- spondent was ordered, inter alia, to take the fol- lowing action: (b) Request Willets Point Contracting Corp. to immediately and fully reinstate John Kuebler and Charles Curd to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed. (c) Make whole John Kuebler and Charles Curd for any loss of pay and other benefits they may have suffered by reason of Respond- 1 On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change. 2 Willets was not a respondent in that case. ent Union's discriminatory action in causing their discharge from Willets Point Contracting Corp. and its discriminatory failure and refusal to refer them to work assignments. In the event that the employer reinstates the above- named employees as requested, pay them back- pay for all days they would have worked be- tween 21 October 1977, and the date of their reinstatement. In the event that the employer will not reinstate them, continue to pay them backpay until such time as they have found substantially equivalent employment. . . . Fur- ther, make whole the above-named employees by making contributions on their behalf to the Union's health and welfare and pension funds. The facts of this proceeding are fully set forth in the attached judge's decision. Briefly stated, on September 29, 1980, the Respondent, by letter, re- quested Willets "fully and immediately reinstate John Kuebler and Charles Curd to their former jobs, without prejudice to their seniority or any other rights or privileges previously enjoyed." By letter dated October 2, 1980, Willets refused the re- quest. Several months later, the Respondent re- newed its attempts to have Willets reinstate Kuebler and Curd. According to the credited testi- mony, the stated reason the Respondent sought to renew its efforts to have Willets reinstate Kuebler and Curd was "the meter [on backpay] was still running" and that the Respondent felt that the Union "had gotten screwed" while Willets had gotten off "scot-free." The Respondent arranged a meeting on March 12, 1981, the first of many, be- tween representatives of Willets, itself, and Kuebler and Curd.3 During this and subsequent meetings, the Respondent requested that Willets put Kuebler and Curd back to work. The Respondent also cou- pled these requests with the requirement that Wil- lets also pay Kuebler and Curd the backpay that was due them under the Board's Mascali decision, declaring that if 'Millets took Kuebler and Curd back, it would have to pay them backpay, and if it refused to do so, the Union would take the back- pay issue to arbitration. Although Willets at the March 12 meeting resisted both reinstatement and backpay requests, at the March 16, 1981 meeting it eventually stated that it would agree to reinstate Kuebler and Curd. It nevertheless remained ada- mant, throughout the course of the various meet- ings and discussions that took place over the course of approximately 2 years, during which time the Respondent filed a petition in state court to 3 These meetings spanned some 2 years and were also later attended by attorneys for Willets and for Kuebler and Curd. An attorney for the Re- spondent attended the March 12 and subsequent meetings. 288 NLRB No. 13 TEAMSTERS LOCAL 282 (WILLETS POINT CONTRACTING) 57 compel arbitration that it would not assume any obligation or responsibility for any backpay that might be due Kuebler and Curd and it would not arbitrate the matter.4 Eventually, after numerous prior discussions, on March 17, 1983, the Union agreed to withdraw its claim that Willets pay backpay to Kuebler and Curd and agreed to withdraw the contract griev- ance if Willets would reinstate Kuebler and Curd pursuant to Willets' earlier February 18, 1983 offer. 5 However, on March 17, Willets began im- posing conditions of its own on the Respondent which Willets required the Union agree to, and ef- fectuate, before it would reinstate Kuebler and Curd. After several months of further negotiations between the parties, agreement on all outstanding matters was reached, and on May 2, 1983, all con- ditions imposed by Willets having been met by the Union, Kuebler and Curd were reinstated by Wil- lets. The judge found that the Union's demand that Willets agree to assume the backpay obligation due to Kuebler and Curd before reinstating them vio;; lated Section 8(b)(1)(A) and (2) of the Act because: the Union's demand for backpay, which he found was considerable and which he found Willets had no obligation to pay, precluded consideration of re- instatement. The judge also found that the Union had not shown that its actions were necessary to the effective performance of its function of repre- senting its constituency. Rather, the judge found that the Respondent's actions were a continuation of its discrimination against Kuebler and Curd, and an attempt to shift its rightful liability to an inno- cent party, which resulted in Kuebler and Curd not being rehired by Willets for over 2 years. The judge also found that the Union's lawsuit to compel Willets to arbitration over the backpay was baseless and that the Respondent's use of the con- tractual arbitration procedure to force Willets to pay the backpay, which he found the Union alone owed to Kuebler and Curd, resulted in Willet's re- fusal to reinstate the discriminatees in violation of Section 8(b)(1)(A) and (2) of the Act. As noted, we shall dismiss the complaint in this case. Contrary to the judge, we do not find that the conduct involved herein constitutes a separate vio- lation of the Act nor do we consider the Respond- ent's actions to be the type with which the Board 4 On May 12, 1981, the Union notified Willets of its intent to arbitrate the grievance regarding Kuebler and Curd's reinstatement and their back- pay entitlement. On July 8, 1981, it filed in state court a petition to compel arbitration. On January 20, 1982, the state court denied the peti- tion. On June 9, 1982, the Respondent filed a notice of appeal of that denial but it did not file an actual appeal. 5 The February 18 letter offered to reinstate the two employees if the Respondent abandoned "forever" all attempts to hold Willets liable for any backpay to the two employees. should concern itself in a newly filed, separate, unfair labor practice proceeding. Rather, in our view, the conduct involved herein relates to the Respondent's compliance, or lack thereof, with the outstanding Board order in Mascali. The order in Mascali does not state, nor has the Board ever de- tailed, how the Respondent might secure the neces- sary funds it needed to satisfy its backpay obliga- tions. In our view, the Respondent's actions, as de- tailed in the judge's decision, appear to have been engaged in for the purpose of offsetting its backpay obligation under the Mascali decision and/or cut- ting off its backpay liability. Indeed the complaint in this case supports the proposition that this is really a matter for compliance. In this respect, we note that the complaint alleged the violative con- duct as being the Respondent's coupling of its demand for the reinstatement of Kuebler and Curd with a request that Willets pay the backpay for which the Respondent is liable. This allegation is really a way of arguing that the Union is not com- plying with the Board's order in Mascali. Indeed, the Charging Party argues the case just that way in its brief to the Board in opposition to the Respond- ent's exceptions. Accordingly, in the circumstances of this case, we do not find that the Respondent's conduct constitutes a separate violation of the Act. Accordingly, we shall dismiss the instant com- plaint. 6 ORDER The complaint is dismissed. 6 Because of our disposition herein, we find It unnecessary to pass on the 10(6) issue raised by the Respondent or the judge's findings and dis- cussion regarding Bill Johnson's Restaurants It NLRB, 461 U.S. 731 (1983) We note in this latter regard, however, that the Union's pursuit of arbitration was not alleged specifically as a violation but, as set out above, the complaint alleged the violation as the alleged coupling of its demand for reinstatement with a request that Willets pay backpay. Elliot Mandel, Esq., for the General Counsel. J. Warren Mangan, Esq. (O'Conner & Mangan, P.C.), of Long Island City, New York, and Franklin K Moss, Esq. (Cohen, Weiss and Simon), of New York, New York, for the Respondent. Arthur Z Schwartz and Daniel E Clifton, Esqs. (Clifton & Schwartz), of New York, New York, for the Charging Parties. Robert M. Ziskin, Esq. (Kimmel & Ziskin), of Melville, New York, for Hendrickson Brothers. DECISION STATEMENT OF THE CASE WILLIAM F. JACOBS, Administrative Law Judge. This case was tried before me on various dates between 13 August 1984 and its closing by order dated 4 October 1985. Though the instant case was consolidated for hear- 58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing by the Regional Director for Region 29 with Cases 29-CA-5975, 29-CB-3075, 29-CB-3115, and 29-CB- 3235 by order dated 8 November 1983, the same was severed for decision writing purposes by me by order dated 16 June 1986.1 The charge in Case 29-CB-4937 was filed on 11 June 1982 by John Kuebler, an individual. The complaint issued on 2 September 1983 and alleges violations of Sec- tion 8(b)(1)(A) and (2) in that Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) coupled its request for reinstatement of John Kuebler and Charles Curd with a demand that Willets Point Contracting Corp. (Willets) pay the backpay due Kuebler and Curd under the Board's Order issued in Frank Mascali Construction G.C.P. Co., 251 NLRB 219 (1980), 2 the consolidated cases from which the instant case has been severed. The Union, in its answer, denies the commission of any unfair labor practices. Representatives of all parties were present and were given full opportunity to participate in the hearing and subsequently filed briefs. Based on the entire record in- cluding my observation of the demeanor of the witnesses and after due consideration of the briefs, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION Willets Point Contracting Corp. is a New York corpo- ration having its principal office in Flushing, New York, from which headquarters it is engaged in the manufac- ture, sale, and distribution of asphalt and related prod- ucts, and in providing road building and related services. In the calendar year prior to the issuance of the com- plaint, Willets purchased and caused to be transported and delivered to its place of business goods and services valued in excess of $50,000 directly from points outside the State of New York. The complaint alleges, the answer admits, and I find that Winets is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES In Mascali the Board found the Union in violation of Section 8(b)(1)(A) and (2) and in the relevant affirmative portion of its Order required the Union to: Take the following affirmative action which is necessary to effectuate the policies of the Act: . . . . The cases from which the instant case has been severed will be the subject of a separately issued supplemental decision dealing solely with backpay issues. 2 Enfd 697 F.2d 294 (2d Cir. 1982), cert denied 459 U S. 988 (1982) WiBets was not a respondent in the Mascall case. (b) Request Willets Point Contracting Corp. to immediately and fully reinstate John Kuebler and Charles Curd to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (c) Make whole John Kuebler and Charles Curd for any loss of pay and other benefits they may have suffered by reason of Respondent Union's dis- criminatory action in causing their discharge from Willets Point Contracting Corp and its discriminato- ry failure and refusal to refer them to work assign- ments. In the event that that employer reinstates the above-named employees as requested, pay them backpay for all days they would have worked be- tween October 21, 1977, and the date of their rein- statement. In the event that that employer will not reinstate them, continue to pay them backpay until such time as they have found substantially equiva- lent employment . . . . Further, make whole the above-named employees by making contributions on their behalf to the Union's health and welfare and pension funds. (d) In conjunction with Respondent Employers, with Respondent Union primarily liable, make whole John Kuebler and Charles Curd for any loss of pay and other benefits they may have suffered by reason of Respondent Union's discriminatory imple- mentation of its referral system arrangement with Respondent Employers from July 25, 1977 to Octo- ber 21,,1977 . . . . Further, in conjunction with Re- spondent Employers, with Respondent Union pri- marily liable, make whole the above-named employ- ees by making contributions on their behalf to the Union's health and welfare and pension funds. The Board's Decision and Order issued on 15 August 19803 and on 29 September, Robert Sasso, the Union's secretary-treasurer, wrote to Kenneth Tully, president of Willets, requesting Whets to "fully and immediately re- instate John Kuebler and Charles Oird to their former jobs, without prejudice to their seniority or any other rights or privileges previously enjoyed." On 2 October Tully, by certified letter, refused Sasso's request. Strangely, neither Kuebler nor Curd was sent copies of either Sasso's or Tully's letters and when the Union's at- torney, J. Warren Mangan, discussed the situation with Region 29's compliance officer, Richard Epifanio, Mangan was advised that the exchange of letters as well as an earlier oral request and refusal might be insufficient to discharge the Union's obligation under the Order be- cause notification of the request and refusal had not been given to the discriminatees. As a result of the discussion between Mangan and Epi- fanio, Mangan, on 16 January 1981, 4 wrote a letter to the compliance officer with Sasso's 29 September and Tully's 2 October letters attached, with copies to Sasso, Kuebler, and Curd. In his letter, Mangan stated that the Union had already requested reinstatement for the dis- 3 Hereinafter all dates are in 1980 unless otherwise indicated 4 Heremafter all dates are in 1981 unless otherwise indicated TEAMSTERS LOCAL 282 (WILLETS POINT CONTRACTING) 59 chargees, that the Company had refused, and that the at- tached documents were proof of his assertion. As a result of obtaining the information contained in the letters, Kuebler and Curd, on 26 January, paid Tully a visit. They met Tully on the stairs of his office building as he was approaching his office. Kuebler told Tully that he was aware that Tully had sent a letter to the Union refusing to reinstate him and Curd. Tully said that he thought that Kuebler and Curd had simply failed to shape. Kuebler explained that he and .Curd had been fired by Willets. Tully said that he understood that Kuebler and Curd were working at Hendrickson Broth- ers. Kuebler objected, stating that his and Curd's jobs were with Willets, that they wanted to come back be- cause they could make more money at Willets. He said that he and Curd belonged at Willets and that they had been fired illegally. At that point Tully said he would not reinstate Kuebler and Curd, that the NLRB had said he was right, that he had enough men at Willets, that Kuebler and Curd already had jobs at Hendrickson Brothers, and that he would not discuss the matter fur- ther. Tully then proceeded to his office. On being rejected by Tully, Kuebler filed a charge5 on 3 February against Willets based on its failure to rein- state him. Curd, on the same day, also filed a charge on the same grounds.6 On 27 February Curd received a call from Sasso's sec- retary who told him that Sasso wanted a meeting with Kuebler and Curd and that Curd should contact Kuebler to schedule a meeting. The three met that afternoon at the union hall. At the meeting Sasso told Kuebler and Curd that he wanted to get them their jobs back, that the meter (on backpay) was still running, and that he felt that the Union "had gotten screwed" while Tully got off scot-free. He asked Ahem if they would meet with Tully. Both Kuebler and Curd agreed. On 2 March the two charges against Willets based on its failure to reinstate Kuebler and Curd were with- drawn. Clearly Willets, who had never been a respond- ent in the Mascali case, had no obligation to reinstate Kuebler and Curd, either by virture of the decision in the Mascali case or by virture of the individual charges filed later by Kuebler and Curd. On 6 March Sasso wrote to Curd requesting his pres- ence at a grievance panel to take place at the Union's premises on 10 March. The grievance concerned the dis- charge of Kuebler and Curd by Willets. The meeting scheduled for 10 March actually took place on 12 March. It was attended by Kuebler, 7 Curd, and various representatives of Willets and the Union. After criticizing the decision in the Mascali case, Mangan announced that the purpose of the meeting was to get Tully to put Kuebler and Curd back to work at Willets. Tully, who was present without a lawyer, objected that he had not been informed what the meeting was to be about. He proclaimed that Willets had no obligation to put Kuebler and Curd back to work and because he did not have a lawyer present he did not want to go further. 5 Case 29-CA-8622-1. Case 29-CA-8622-2. 7 Presumably Kuebler also received an invitation to attend the meet- ing. It was agreed that another meeting would be scheduled with both Willets and Kuebler and Curd being represent- ed by counsel. On 16 March, the previously scheduled meeting took place. Mangan once again announced that the Union was interested in getting Kuebler and Curd reinstated at Wil- lets. He launched into an interpretation of the Mascali case that was totally contrary to the administrative law judge's findings and the Board's findings. Whereas the judge and the Board had found that the steward at Wil- lets, who had kept fraudulent records resulting in the dis- charge of Kuebler and Curd, was the agent of the Union, Mangan asserted that the same steward had kept the fraudulent records at the behest of Willets and was there- fore the agent of Willets. Mangan argued that Willets, rather than the Union, had created the problem and therefore the Union was seeking not only the reinstate- ment of Kuebler and Curd but also full or partial back- pay to be paid by Willets, especially since the issuance of the judge's decision and the Union's request for Kuebler's and Curd's reinstatement. Mangan stated that the Union was seeking backpay for the two discrimina- tees from Willets back to October 1977. He added that if the Union had to go to arbitration over the issue, this would be his claim. Tully and his attorney, Howard Mattson, argued that under the Board's Decision and Order Willets was not responsible and was therefore not obligated to reinstate Kuebler and Curd. Nevertheless, Mattson stated Willets was willing to put Kuebler and Curd back to work at their old positions with the same seniority they held at the time of discharge. Mangan was not satisfied with this offer and told Tully and Mattson that if they put Kuebler and Curd back to work Willets would also have to pay them backpay. Tully, who is Irish, noted that the following day was St. Patrick's Day. He said that he would put Kuebler and Curd back to work the following day but would not get stuck with backpay. Mattson added that he and Tully had not come to the meeting prepared to discuss backpay and, besides, it was the Union that was liable for backpay. Mangan retorted that in that case the Union would take the backpay issue to arbitration. Mattson commented that he did not know how Mangan could talk arbitration, that there was a time factor of 3 years. He pointed out that Mangan did not seek to take the discharges of Kuebler and Curd to arbi- tration at the time of their discharges and he should have done so within 24 or 48 hours; that at this point in time it was too late. He added that neither Kuebler nor Curd was an employee of Willets and for that reason Kuebler and Curd were not entitled to arbitration. The parties looked over the arbitration clause in the contract. Matt- son said that Willets was not prepared to get involved in arbitration, that he did not think this meeting was about either backpay or arbitration. He reiterated that the Union was liable for backpay, not the Company. Mattson summed up the Company's position by stating that Wil- lets was willing to put Kuebler and Curd back to work at their old positions, would not be involved in the back- pay issue, and would fight the Union's attempt to arbi- trate. In short, the Company would reinstate Kuebler 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and Curd but only if the Union absolved Willets of any obligation to pay Kuebler and Curd the backpay due them. Mangan's last word on the issue was that the Union would take the Company to arbitration on the backpay issue. At one point during the meeting Mattson asked if there might be an offer on some of the backpay from the Union and added that if there were, that maybe Willets could possibly help a little. The Union, however, made no such offer although Burt Hall, representing Kuebler and Curd, took the position that his clients would abide by the Board's Decision and Order. He refused to take less than provided for in the Order and stated that he did not care whether it was the Union or the Company that paid the backpay as long as it was paid. 8 Before the meeting came to a conclusion, it was agreed that the par- ties should consider their respective positions and meet again to attempt to resolve the problem. On 26 March Kuebler filed a new charge 8 against Wil- lets on behalf of himself and Curd, similar in content to the ones withdrawn earlier in the month. This charge was dismissed on 8 May. Representatives- of the same parties met again on 9 April. Except for Ken O'Connor taking Mangan's place and Tully being absent, the same individuals were present on 9 April as had attended the 16 March meet- ing. The meeting was initiated by O'Connor asking if there were any changes in the positions of the parties. Hall replied on behalf of Kuebler and Curd that there was a National Labor Relations Board decision and that he and his clients would stick with that; that the Union or the Company could pay the backpay or could split it, it did not matter. Mattson replied that his client was will- ing to put Kuebler and Curd back to work but would not be stuck for backpay. O'Connor stated that unless Willets reinstated Kuebler and Curd with full backpay it would have to go to arbitration. Mattson said that Wil- lets would not go to arbitration with the Union because the arbitrators" were biased and he could not get a fair hearing. Mattso'n then offered to accept an arbitrator from the American Arbitrators Association but O'Con- nor refused his offer stating that one of the contractually chosen arbitrators would have to be used. Mattson once again refused. O'Connor then said that the Union would take lets to court and force arbitration. Mattson re- plied that if that was the case, he would take his chances in court, that he would not go to arbitration, and that was his final position. The meeting concluded without arrangements being made for additional meetings. On 12 May the Union notified Willets of its intention to arbitrate the "grievance regarding the reinstatement of John Kuebler and Charles Curd to their employment status with Willets Point, without prejudice to any loss 8 The description of the meeting of 16 March 81 is based on the com- bined testimony of Kuebler, Curd, Mangan, Tully, ,Mattson, and Hall Where there are discrepancies in the testimony, credibility has been re- solved in favor of Kuebler, Curd, and Hall whose memories appeared to be more dependable than that of Mangan, Tully, and Mattson. 9 Case 29-CA-8766. ' 1) Specific arbitrators had been chosen earlier through negotiations of wages, seniority or other rights or privileges previous- ly enjoyed by them on October 21, 1977." The letter ended with a threat to compel arbitration if necessary. On 8 July the Union filed with the Supreme Court, State of New York, county of Nassau, a notice of peti- tion, with petition attached directed to Willets, to compel it to arbitrate issues surrounding the discharge of Kuebler and Curd. On 23 July Willets filed its answer. The hearing was scheduled for 28 July. On 20 January 1982, 11 the Supreme Court, State of New York, county of Nassau denied the Union's petition. On 14 April the United States Court of Appeals for the Second Circuit enforced the Board's Order in Mar- cali. 12 On 8 November the United States Supreme Court denied the Union's petition for certiorari." On 9 June Mangan filed a notice of appeal from the decision of the Supreme Court of the State of New York dated 20 January thus indicating the Union's intention of pursuing its attempt to compel arbitration. Two days later the instant charge was filed. Though the notice of appeal was filed, the actual appeal was not. Throughout the fall of 1982, according to Tully, his attorney, Mattson, continued to negotiate the issue of backpay for Kuebler and Curd with Mangan. Negotia- tions continued into 1983 with Willets continuing to refuse to pay the backpay or to go to arbitration over the issue. Mangan continued to insist on Willets paying the backpay or else to agree to arbitrate the issue. Matt- son informed Tully that he was attempting to get Mangan to agree to reinstatement of Kuebler and Curd at Willets without backpay as a compromise. Tully agreed and authorized Mattson to continue these negotia- tions. By letter dated 21 December, Sasso requested Tully to reinstate Kuebler and Curd and to 'correct Willets' se- niority list and the attendance records of Kuebler and Curd, all in accordance with the Board's Decision and Order. Although Sasso's letter was silent as to the back- pay issue, it was during this period of time that Mangan was still insisting, in his discussions with Mattson, that Willets either pay Kuebler and Curd backpay or submit the issue to arbitration. Mangan and Mattson continued their discussions con- cerning reinstatement, backpay, and arbitration into Feb- ruary 1983. 14 Finally, at that time, Mangan, on behalf of the Union, agreed to drop the suit to force arbitration and Mattson, on behalf of Willets, agreed to reinstate Kuebler and Curd. Mattson contacted Tully by phone and told him about the agreement. Tully, who was in Florida at the time, gave his approval. As a consequence of the Mangan/Mattson discussions and Tally's approval, Mattson, on 18 February, drafted the following letter for Ryan's" signature: ii Hereinafter all dates are in 1982 unless otherwise indicated 12 Unpublished. 13 459 U.S 988. i4 Hereinafter all dates are in 1983 unless otherwise indicated. 18 In Tully's absence, H. Patrick Ryan, secretary for Willets, signed the letter. . TEAMSTERS LOCAL 282 (WILLETS POINT CONTRACTING) 61 Building Material Teamsters Local 282 1975 Linden Boulevard Elmont, New York 11003 Attention: Mr. Robert Sasso Secretary-Treasurer Gentlemen: Each time Local 282 requested that Willets Point Contracting Corp. reinstate Mr. Kuebler and Mr. Curd, pursuant to the NLRB order, Local 282 and they insisted that Willets be held liable for the back pay of both gentlemen from the day of their dis- charge. Attaching this condition to their reinstatement continues to be unacceptable in view of the NLRB's orders and findings that Local 282—and not Wil- lets—is responsible for their discharge and liable for any back pay owed them. We again offer to reinstate Mr. Kuebler and Mr. Curd to their old positions, if they and Local 282 abandon forever all attempts to hold Willets liable for any back pay to either Mr. Kuebler or Mr. Curd. Please notify us as soon as possible whether you accept this offer. If we do not hear from you in writing, within twenty days, we will withdraw this offer. Very truly yours, WILLETS POINT CONTRACTING CORP. /s/ H. Patrick Ryan Secretary Susan Jennik, attorney for Kuebler and Curd, received a copy of this letter. At the same time she obtained a copy of the following letter: Mr. John Kuebler 223 Sullivan Avenue Farmingdale, New York 11735 Dear Mr. Kuebler: In the past you and Mr. Curd and Local 282 IBT requested reinstatement to your old positions at Willets Point Contracting Corp. Unfortunately, all of you insisted on conditioning reinstatement upon the claim that Willets be held liable for the back pay of yourself and Mr. Curd, measured from the day of your discharge up to the present time. This condition has always been objectionable to our firm because Local 282 solely is responsible ac- cording to the NLRB and the Federal Circuit Court of Appeals. We again offer to reinstate you to your old posi- tion at Willets, if you and Local 282 agree that Wil- lets is not responsible for any back pay that may be owed you since your discharge. Please notify us as soon as possible whether you accept this offer. If we do not hear from you in writing, within twenty days, we will withdraw this offer. Very truly yours, WILLETS POINT CONTRACTING CORP. /s/ H. Patrick Ryan Secretary After receiving copies of these letters, Jennik contact- ed Mangan. She advised him that she was going to give Willets the release that they had requested and advised the Union to do the same so that Kuebler and Curd could obtain reinstatement. Mangan, however, told Jennik that the Union was not prepared to give Willets a release. Subsequently, Mangan agreed to give Willets the release it wanted and forgo his attempt to compel arbi- tration if Kuebler and Curd would give releases to the Union protecting it from any possible future charges of failure to represent them. On 25 February Mangan forwarded Ryan's letter to Kuebler's and Curd's attorneys and asked for a meeting. In his cover letter, he denied the representations made in Ryan's letter insofar as the Union's previous demands on Willets for arbitration were concerned. When Jennik received copies of Ryan's 18 February letters she contacted Mattson by telephone to discuss the situation. Mattson told Jennik that he wanted Kuebler and Curd to execute a release stating that they would not hold Willets liable for any part of the backpay due them under the Board's Mascali decision. Jennik agreed. That day, 2 March, Jennik drafted identical letters for the signatures of Kuebler and Curd. H. Patrick Ryan Secretary Willets Point Contracting Corp. P.O. Box 145 Flushing, NY 11352 Dear Mr. Ryan: I hereby accept your offer of February 18, 1983, to reinstate me to my former position with Willets Point Contracting Corp. I agree to release Willets Point from liability for any back pay owed to me as a result of my dis- charge from Willets Point on October 21, 1977. This release will be ineffective if I am not reinstated to my former position with Willets Point within two weeks of your receipt of this letter. I note that, contrary to the first paragraph of your February 18, 1983 letter, I have never condi- tioned my request for reinstatement to employment with Willets Point upon the claim that Willets Point be held liable for backpay owed to me. Rather, Local 282, Teamsters, has imposed that condition on my reinstatement, while I have taken no position as to the liability of Willets Point. Please notify me of the date of my reinstatement as soon as possible. Thank you for your coopera- tion. 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Under separate cover Jennik sent a letter of similar content to Mattson. Copies of these letters were sent to Mangan. Jennik also contacted Mangan by telephone and ad- vised him that Kuebler and Curd intended to accept the reinstatement offer contained in the Willets letter of 18 February. She asked Mangan what the Union intended to do. Mangan replied that nothing had yet been decided but that before making such a decision, the Union wanted Kuebler and Curd to withdraw the grievance that was pending regarding reinstatement, the one that led to the filing of the petition for arbitration. Jennik took the position that no withdrawal was necessary, that when Kuebler and Curd were back at work, the griev- ance will have been considered settled. She stated that the Union had an obligation to help Kuebler and Curd get reinstated and if it stood in the way of their reinstate- ment it would be in contempt of the Board's Order in the original Mascali case. Mangan replied that Kuebler and Curd were not behaving like good union brothers by releasing Willets from liability and putting all the liability on the Union. Jennik pointed out that over the past sev- eral years of negotiations the Union could have gotten Willets to bear some of the backpay burden but consist- ently refused to do that. Now, Kuebler and Curd could at least get back to work and, Jennik argued, there was nothing wrong with that. Besides, she said, it was the Union's own fault that they were stuck with the back- pay. Mangan closed the conversation with a request that Kuebler and Curd sign releases permitting the Union to withdraw the grievance that was still pending. On 8 March Mangan sent the following letter: Hall, Clifton & Schwartz 401 Broadway, Suite 310 New York, New York 10013 Attention: Susan M. Jennik, Esq. Re: Local 282, Teamsters Case Nos. 29-CB-3075 et al Dear Ms. Jennik: I hereby acknowledge receipt of a copy of your letter of March 2, 1983 to Howard Matson. Suffice it to say that Local 282 has repeatedly sought the reinstatement of Messrs. Kuebler and Curd to their employment with Willets Point and the satisfaction of all contractual obligations due to them as a result of Willets unjustified refusal to do so. Today, I was advised by Bob Sasso that Messers. Kuebler and Curd, individually, in writing and without the con- sent of Local 282 agreed to accept Willets offer of reinstatement and to release Willets from any back pay liability that may be due to Kuebler and Curd since October 21, 1977. You have advised me that Kuebler and Curd want to withdraw the contractual grievance that Local 282 has filed on their behalf for reinstatement and back pay. Enclosed find copies of their, respec- tive, notices to Local 282. Would you review this matter with Messers. Kuebler and Curd and have them present their executed notice to Bob Satso at Local 282's offices. On receipt of the fully executed notices Local 282 will communicate with Willets re- garding H. Patrick Ryan's letter of February 18, 1983. I have taken the liberty of forwarding copies of this letter and the notices directly to Kuebler and Curd. Very truly yours, /s/ J. Warren Mangan Two of the following forms were enclosed for the signa- tures of Kuebler and Curd: John Kuebler/Charles Curd in conjunction with the offer of reinstatement made to him by Willets Point Contracting Corp. ("Willets") and his written acceptance of that offer, does hereby withdraw any contractual grievance for back pay against Willets resulting from his discharge on October 21, 1977. Neither Kuebler nor Curd signed the enclosed withdraw- als. Following receipt of Mangan's 8 March letter Jennik spoke with him by phone. Mangan again asked for a withdrawal of the grievance Jennik refused and added that IVIangan's insistence on a withdrawal was standing in the way of Kuebler's and Curd's reinstatement. Subse- quently a meeting was scheduled for March 17. On 17 March Mangan, Jennik, and Mattson met at the offices of the GCA. Mattson had a six-page agreement that he wanted Kuebler, Curd, and a representative of the Union to sign. The agreement provided for reinstate- ment of Curd and Kuebler with all seniority rights, the holding of Willets harmless from any claims of drivers adversely affected by their reinstatement, the release of Willets and GCA from all claims arising out of the 21 October 1977 discharge of Kuebler and Curd, and the discontinuance with prejudice of the Union's application to compel arbitration. Mattson and Mangan 16 began to argue about the provision dealing with the possible claims of other drivers adversely affected by the rein- statement of Kuebler and Curd. Mattson took the posi- tion that unless the Union both agree to pick up any li- ability that might arise out of such claims and withdraw its application to compel arbitration Willets would not put Kuebler and Curd back to work. Mangan refused to agree to indemnify Willets for any liability incurred due to possible claims of displaced drivers. He also refused to commit himself as to whether he would withdraw the petition to compel arbitration until he obtained a written agreement from Kuebler and Curd stating that he could withdraw the grievance on which the petition was based. Jennik felt that liability for claims of other drivers was not a real issue. She accused Mattson of repudiating their agreement and Mangan of obstructing Kuebler and Curd from going back to work by raising this new and phoney issue. Mattson became angry over Mangan's refusal to 16 Mangan testified that the issue of indemnification of Willets for any claims or grievances filed by drivers displaced by the reinstatement of Kuebler and Curd did not come up at the 17 March meeting. Because the memorandum prepared by Mattson and dated 17 March contains such a provision, I do not credit Mangan. TEAMSTERS LOCAL 282 (WILLETS POINT CONTRACTING) 63 have the Union accept liability for any possible claims of displaced drivers and stormed out of the meeting. After Mattson left, Mangan and Jennik again discussed with- drawal of the grievance. Mangan then drew up a state- ment, that Jennik signed, calling for withdrawal of the outstanding grievance provided Kuebler and Curd were reinstated by Willets. He then drew up and signed a letter to Mattson advising him of the Union's withdrawal of the grievance and the abandonment of all claims to backpay from Willets provided Kuebler and Curd were reinstated as per Willets' offer of 18 February. On 18 March Sasso sent a mailgram to Ryan at Willets advising him that because Kuebler and Curd had accept- ed the Company's offer of reinstatement without back- pay, and the Union had withdrawn any and all litigation on their behalf with prejudice, the Union was demanding that Willets reinstate them to their old positions on Monday, 21 March. On 21 March Willets replied agree- ing to reinstate Kuebler and Curd with seniority without backpay as soon as the Union, Kuebler, and Curd sign agreements withdrawing backpay claims with prejudice and agreeing to demote drivers who were junior to Kuebler and Curd in October 1977. Proposed agree- ments, it was stated, were being sent to attorneys repre- senting the Union and Kuebler and Curd. - I Meanwhile, on 21 March Jennik wrote a letter to Mattson charging that Willets had repudiated its agree- ment to reinstate Kuebler and Curd that came into effect when Kuebler and Curd accepted, on 2 March, Willet's offer of 18 February. Jennik added that she intended to take legal action to enforce all claims of Kuebler and Curd against Willets as a result of their discharges on 21 October 1977. After Jennik sent the 21 March letter to Mattson, a telephone conversation occurred between her and Attor- ney Raegner, who, at that time, replaced Mattson as counsel for GCA. Raegner asked Jennik what she in- tended to do. Jennik replied that she would bring a law- suit. Raegner said he thought that a lawsuit might re- solve the whole situation. He added that he and his cli- ents were worried about having to go to arbitration with the Union and that was why they were pushing the issue regarding Willets being indemnified against any possible claims being brought against the Company by drivers junior to Kuebler and Curd displaced by their reinstate- ment. On 23 March William C. Finneran, general counsel and director of labor relations for the General Contrac- tors Association of New York, Inc., sent a telegram to O'Connor and Mangan with a copy to Jennik outlining the position of Willets and the GCA: Hereby confirm agreement March 21. Teamsters will give Willets general releases from Curd and Kuebler, withdraw with prejudice petition to compel arbitration and appeal from order denying arbitration and agree to indemnify against claims by drivers junior to Curd and Kuebler. Willets will re- instate Curd and Kuebler without back pay with se- niority. Finneran Following receipt of her copy of this telegram, Jennik discussed its contents with Raegner. Raegner reiterated its contents, affirming that it reflected the position of his clients. Jennik wanted to know what was holding up the reinstatement of Kuebler and Curd. Raegner stated that his client wanted a release signed by an officer of the Union agreeing to withdraw its petition to compel arbi- tration and stating further that the Union would indemni- fy Willets in the event that any displaced drivers were found to be owed backpay. Raegner stated that if such a release were forthcoming, Kuebler and Curd would go back to work without backpay. Jennik filed her threatened suit on 23 March in the United States District Court, Eastern District of New York, against the Union, certain officers of the Union in- cluding Sasso, and against Willets. The suit was for sev- eral million dollars in actual and punitive damages. On 30 March Sasso wrote a letter to Willets advising Tully that he was filing a grievance over the Company's failure to reinstate Kuebler and Curd as had been agreed on. The letter also stated: Local 282 has previously stated that when John Kuebler and Charles Curd are reinstated it will dis- continue, with prejudice, its pending litigation against Willets Point, and should any Willets driver, other than John Kuebler and Charles Curd obtain a damage award or judgement against Willets, result- ing from Kuebler and Curd's reinstatement, that sum will be Local 282's obligation." Very truly yours, /s/ Robert Sasso Secretary-Treasurer Thus, it would appear that the Union finally agreed to give to Willets everything it wanted with the only ques- tion being whether the reinstatement should come before or after the Union met Willets' demands. Following the receipt of Sasso's letter, Jennik and Raegner again discussed the situation. Raegner agreed, on behalf of Willets, that Kuebler and Curd would be re- instated at Willets as soon as the Hendrickson" case was over. Jennik agreed that Kuebler and Curd would dis- miss the law suit against Willets once they were reinstat- ed. On 5 April Kuebler and Curd redated and once again signed their 2 March letters accepting the Willets offer of 18 February and sent them to Ryan as new accept- ances of Willets offer of reinstatement. This was done at Jennik's instruction to show Willets that both men were still interested in reinstatement and as a sign of good faith. On 7 April Jennik filed a notice of dismissal of the suit she had filed on 23 March in district court. On 14 April Tully sent the following memorandum: 17 This obligation had not been agreed to earlier as far as this record is concerned. 18 Hendrickson Bros., 272 NLRB 438 (1984). This was a case in which Kuebler and Curd were involved as discriminatees and in which they were expected to testify at length, thus not being available for regular work assignments until its conclusion. 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Memo To: Susan Jennik, Esq. Elliot Mandel, Esq. J. Warren Mangan, Esq. Kenneth O'Connor, Esq. From: Kenneth Tully, President Willets Point Contracting Corp. Re: Reinstatement of John Kuebler and Charles Curd Following is the text of a letter to be delivered to John Kuebler and Charles Curd after the required Releases have been signed and an Agreement be- tween them and Willets Point Contracting Corp. has been concluded: You are hereby reinstated at Willets Point Con- tracting Corp. with the seniority that you would have held if you had remained on our seniority list since October 21, 1977. It is understood that you will be attending hear- ings before the National Labor Relations Board in the case involving Hendrickson Bros., Inc. 29-CA- 8479 and 9668. You will return to Willets Point Contracting Corp. when that case is over. Please notify us one day in advance. The same day Tully sent letters to Kuebler and Curd containing the above-described language. On 21 April Mangan and Raegner signed a stipulation that the application to compel arbitration be dismissed with prejudice. On the same day, Sasso wrote a letter to Tully stating that Kuebler and Curd had authorized the Union to withdraw its 30 March grievance and that the Union was doing so." On 29 April Kuebler and Curd signed releases of all claims against Willets. On 2 May they returned to work. - Analysis and Conclusion The record reflects that the Union, through its attor- ney, J. Warren Mangan, began, as early as 16 March 1981, to insist on the reinstatement of Kuebler and Curd with Willets paying backpay to them despite the fact that Willets had no obligation to either reinstate them or to pay them backpay. At the meeting on that date Willets took the position that it was willing to immediately rein- state both Kuebler and Curd with their original seniority dates but would not be obligated to pay any of the back- pay. Mangan adamantly declared that if Willets took the men back, it would also have to pay them backpay and if it refused to do so, the Union would take the backpay issue to arbitation. A later meeting was held to discuss both reinstatement and backpay but the parties maintained their original po- sitions and then, and therefter, the Union threatened to force Willets to arbitration on the backpay issue. In July 1981 the Union took steps to force arbitration by filing its petition with the Supreme Court of the State of New York to compel arbitration. However, the petition was denied in January 1982. 19 Jennik confirmed this by letter addressed to Mangan dated 25 April. When the court of appeals in April 1982 enforced the Board's Order in the original Mascali case, the Union, on 9 June 1982, confirmed that its position had not changed by filing its notice of appeal from the 20 January 1982 decision of the Supreme Court of the State of New York. The filing of the instant charge of 11 June, 2 days later, clearly shows that the charge was timely filed and that the Respondent's 10(b) defense is without merit. Indeed, the Union continued to maintain its original posi- tion until it and its officers were threatened with a $6 million lawsuit in March 1983. Counsel for the General Counsel argues that under the Board's Order in Mascali, Willets had no obligation to pay backpay to Kuebler and Curd. I agree. Counsel for the General Counsel argues further that it was the Union's demand that Willets, nevertheless, agree to assume the backpay obligation before reinstating Kuebler and Curd that violated Section 8(b)(1)(A) and (2) be- cause its demand for backpay, which was considerable, precluded consideration of reinstatement. I agree. In support of counsel for General Counsel's position, he cited Operating Engineers Local 18 (Ohio Contractors), 204 NLRB 681 at 681 (1973): When a union prevents an employee from being hired or causes an employee's discharge, it has dem- onstrated its influence over the employee and its power to affect his livelihood in so dramatic a way that we will infer—or, if you please, adopt a pre- sumption that—the effect of its action is to encour- age union membership on the part of all employees who have perceived that exercise of power. [Foot- note omitted.] But the inference may be overcome, or the presumption rebutted, not only when the in- terference with employment was pursuant to a valid union-security clause, but also in instances where the facts show that the union action was necessary to the effective performance of its function of repre- senting its constituency. [Footnote omitted.] Counsel for the General Counsel argued in his brief: In this circumstance, the Union has not shown that its actions were necessary to the effective per- formance of its actions of representing its constitu- ency. Rather, its actions were a continuation of its discrmination against Kuebler and Curd, and an at- tempt to shift its rightful liability to an innocent party, which resulted in Kuebler and Curd not being rehired by Willets Point for over two years. I agree with General Counsel's argument for reasons stated in his brief and in the cited case. Counsel for Respondent posits that the Union had a perfect right to attempt through arbitration to make Wil- lets pay Kuebler and Curd the backpay that the Union owed them. However, the Union's attempt to force arbi- tration through the courts had the direct result of keep- ing Kuebler and Curd from being reinstated because Wil- lets was of the opinion that despite the fact that it owed no backpay whatsoever, the arbitrators, who would decide the issue, were so biased in favor of the Union that Willets had no chance. TEAMSTERS LOCAL 282 MILLETS POINT CONTRACTING) 65 In my opinion, the Union's lawsuit was baseless. Its use of the contractual arbitration procedure to force Wil- lets to pay the backpay, which the Union alone owed to Kuebler and Curd, resulted in Willets refusal to reinstate the discriminatees. The Union thereby violated Section 8(b)(1)(A) and (2).20 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent Union set forth in section III, above, to the extent found unlawful, occur- ring in connection with the operations of the Company described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several Sates and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having fund that the Union caused Willets to discrimi- nate with respect to the reinstatement of John Kuebler and Charles Curd, I shall recommend that the Union be compelled to notify Willets Point, in writing, with copies to Kuebler and Curd that it has no objection to their em- ployment, that it requests Willets to reinstate them to the 20 Cf. Bill Johnson's Restaurants v. NLRB, 461 U.S. 731 (1983). positions they formerly held with all the attendant rights and privileges. I shall also recommend that the Union re- imburse Kuebler and Curd for any loss of pay they may have suffered by payment to them of sums of money equal to the amounts that they would have earned from the date of their terminations to the date on which a bona fide offer of reinstatement is made; with interest thereon to be compiled in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). 21 CONCLUSIONS OF LAW 1. Willets Point Contracting Corp. is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By complying its demand for reinstatement of John Kuebler and Charles Curd with its demand that Willets Point assume the Union's backpay liability, the Union interfered with their reinstatement and thereby violated Section 8(b)(1)(A) and (2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 2 See generally Isis Plumbing Co., 138 NLRB 716 (1962).