Associated Transport, Inc.

National Labor Relations Board - Board Decisions

Dec 27, 1965

156 N.L.R.B. 335 (N.L.R.B. 1965)

ASSOCIATED TRANSPORT, INC. 335
APPENDIX-Continued
4th quarter 1964
Gross backpay due___________________________________ _ $ 1,499.02
Less interim earnings ($905.10 ; $295.81 ) -------------------------- 1,200.91
Net backpay due---------------------------------------------- 298.11.
I st quarter 1965
Gross backpay due_____________________________________________ 1,708.21
Less interim earnings__________________________________________ 1,533.48
Net backpay due---------------------------------------------- 174.73
Associated Transport , Inc. and Harold C. James
Local 182, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America (Associated Transport
Inc.) and Harold C. James . Cases Nos. 3-CA-2663 and 3-CB-
839. December 27,1965
DECISION AND ORDER,
On September 17, 1965, Trial Examiner Lowell Goerlich issued his
Decision herein, finding that Respondent Union had engaged in and
was engaging in certain unfair labor practices alleged in the complaint
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that the Union had not engaged in other ' unfair
labor practices alleged. He further found that Respondent Employer
had not engaged in unfair labor practices and recommended that the
complaint be dismissed as to it. Thereafter Respondent Union filed
exceptions to the Decision and the General Counsel filed exceptions
and a supporting brief.
.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Jenkins and-Zagoria].,
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in these cases, and finds merit in the General Counsel's exceptions.
Accordingly, the Board adopts the Trial Examiner's findings, con-
clusions, and recommendations only to the extent consistent.-with the
following.
The complaint alleged in substance that Respondent Union had
caused Respondent Employer to discharge the Charging Party,
156 NLRB No. 23.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harold James, in violation of Section 8(a-) (3) because of James'
alleged delinquency in paying dues at a time when James was not
required under the Act to pay such dues to Respondent Union.
Respondent Employer hired James as an over-the-road truckdriver
in August 1956 at its North Tonawanda, New York, terminal. James
worked continuously for the Employer until December 31, 1964, when
lie was discharged at the request of Respondent Union. The collective-
bargaining representative of the Employer's employees at the North
Tonawanda terminal from 1956 until the present time has been Team-
sters' Local 449. James applied for membership in that local shortly
after he was hired in 1956, but the local rejected his application.'
Local. 449 did not thereafter solicit James to join the Union. James
continued to work without bein a member of Local 449; lie was the
only driver at the North Tonawanda terminal, in that position.'
In late 1959, Rockwell F. DePerno, president of Teamster Local 182,
which had jurisdiction over the Utica, New York, area, about 200
miles from Tonawanda, complained at a Teamster council meeting
to Local 449's president, Donald Wells, that the latter "had a man
[James] running up and down the highways for two or three years
without paying dues to anybody" and that union delegates did not
"like the idea." DePerno testified that Wells said he did not want
James "in his Union." DePerno asked Wells if the latter had any
objection to Local 182's taking James into membership. Wells replied,
according to DePerno, "Absolutely, none . . . and may the Gods bless
you, because you will be sorry. You can represent him. Take him
and do anything you want with him: We don't want him."
In February 1960, James joined Local. 182 after DePerno told him
that unless he was a union member he would not be permitted to pull
freight out of the Utica terminal, which was within the jurisdiction
of Local 182. James explained that Local 449 would not accept him
into membership. DePerno replied, "Well, we'll take you into the
Utica local. I will. put your transfer through from 449. If they
don't accept it, we'll find out why." James remained a member of
Local 182 until March 1, 1963, when he was expelled from membership
for nonpayment of dues since October 1962. However, Local 182
did not notify him of his expulsion, nor did it seek at this time to
affect his job rights.
In 1964, the Employer and the Union, together with other employers
and other locals of the Teamsters, including Local 449, became parties
1 Local 449 's December 3, 1956, minutes recite that "James has become unemployed and
in accordance with the constitution is not now eligible for membership and his initiation
fee has been refunded." Although James was later rehired, Local 449 did not thereafter
seek to enroll him as a member and, as borne out by later statements of Local 449's
president, did not want him as a member.
ASSOCIATED TRANSPORT, INC. 337
to collective-bargaining,agreements which contained a union-security
clause providing, inter ilia :
All present employees who are not members of the Local Union
and all employees who are hired hereafter shall become and remain
members in good standing of the Local Union as a condition of
employment on and after the 31st day following the beginning of
their employment or on and after the 31st day following the
effective date of this subsection or the date of this Agreement,
whichever is the later.
The agreement defines "Local Union" as applying
to the I.B.T. Local Union which represents the employees of the
particular employer for the purpose of collective bargaining at
the particular place or places of business to which the Agreement
and the Supplements thereto are applicable, unless, by agreement
of the Local Unions involved, ... jurisdiction over such employ-
ees.... has been transfered to some other Local Union, in which
case the term Local Union as used herein shall refer to such other
Local Unions.
It is conceded that the union-shop provisions became applicable to
James on March 3, 1964. However, neither Local 449 nor Local 182
informed him of his obligations under the contract prior to his ter-
mination. Local 449 neither requested that he join that union nor
that the Employer discharge him. Neither Local 449 nor Local 182
advised him that the local union he was required to join was Local 182,
200 miles from North Tonawanda, rather than Local 449 which rep-
resented all other North Tonawanda terminal employees, because of
an agreement between the two unions transferring jurisdiction over
him to Local 182.
About December 30, 1964, DePerno called William Mosley, regional
manager of Respondent Employer, and told him that James was in
arrears in his dues and was to be suspended or there would be a strike.
Mosely in turn called the North Tonawanda terminal manager and
told him to suspend James. The suspension took place on Decem-
ber 31, 1964. Before suspending James, the Employer made no inves-
tigation of the Union's claim of delinquency, and gave James no
opportunity to explain or justify his conduct.
The General Counsel contends that under the terms of the 1964
Teamster agreement, only Local 449 had standing to enfore the union-
security clause, and that as Respondent Local 182 acted without such
legal right it violated Section 8(b) (2) of the Act by causing James'
discharge, and Respondent Employer violated 8(a) (3) by acquiescing
in and effectuating the demand for his discharge. We find it unneces-
sary to, and do not, decide whether only Local 449 had the right to
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enforce the union-security clause against James, who was employed
within its jurisdiction. We assume, arguendo, that Local 449, could
lawfully transfer James out of its jurisdiction to that of Local 182,
so as to require James to become and remain a member of Local 182
in order to retain his job.
In the Philadelphia Sheraton 2 case, the court of appeals said :
The comprehensive authority vested in the union, as the exclu-
sive agent of the employees, leads inevitably to employees depend-
ence on the labor organization. There necessarily arises out of
this dependence a fiduciary duty that the, union deal fairly with
employees.... At the minimum, this duty requires that the union
inform the employee of his obligations in order that the employee
may take whatever action is necessary to protect his job tenure....
The union may not evade this duty, as the Local did here, and
then demand the dismissal of the employee when he becomes
delinquent in the payment of his dues.
If James had been transferred from the jurisdiction of Local 449,
which represented all other employees at the North Tonawanda termi-
nal, to that of Local 182, he was entitled to be informed of that fact
by the unions involved so that he could make his tender of dues to
the proper local. But he was never advised of the transfer before he
was abruptly terminated without notice. It is true that James had
earlier been a member of Local 182, but his membership in that labor
organization had terminated almost 2 years before his discharge, and
approximately a year before the union-security clause'became appli-
cable to him.-- Moreover, he had joined Local 182, not because of a
union-security clause, but because he had been threatened that he
would be unable to work out of Utica unless he joined Local 182. It
is also true that James made no attempt to join Local 449 after the
1964 union-security clause became effective. But on the basis of his
entire experience with Local 449, he had the right to assume that
Local 449 did not want him as a member, which was a fact. Further,
Local 449 never complained to James or to the Employer that James
had not offered to join or to tender dues to that labor organization.
On- the basis of. the foregoing, we find that, as"Respondent Union
never properly apprised James that he was required to, join that labor
organization under the existing union-security clause, no obligation
on his part to pay dues arose, and that Respondent Union in bringing
about the discharge of James for dues nonpayment thereby violated
Section 8(b) (2) and (1) (A) of the Act .3 We further' find that, as
Respondent Employer made no attempt to investigate the facts' con-
2N.L.R.B. v. Hotel, Motel and Club Employee8 ' Union, Local 568, AFL-CIO (Phila-
delphia Sheraton Corp.), 320 F. 2d 254, 258 (C.A. 3), enfg. 136 NLRB 888.
3 Ibid.
ASSOCIATED TRANSPORT, INC. 339
netted with the demand for the discharge of James, but yielded to the
will of Respondent Union, Respondent Employer thereby violated
Section 8 (a) (3) and (1) of the Act.4
TIIE REMEDY
Having found that by the aforementioned conduct, Respondent
Employer and Respondent Union have violated Section 8(a) (1) and
(3) and Section 8(b) (1) (A) and (b) (2) of the Act, eve shall order
them to cease and desist from engaging in such conduct in the future
and affirmatively to take such action as will dissipate the effects of
their unfair labor practices. As employee Harold C. James returned
to employment with the Respondent Employer on June 23, 1965, we
shall not order his reinstatement. We shall, however, order that
James' reinstatement shall be without prejudice to his seniority or
other rights and privileges. We shall further order the Respondent
Union to notify the Respondent Employer, in writing, with a copy to
Harold C. James, that it withdraws its objections to the Respondent
Employer's employment of James and does not oppose his reinstate-
ment or the restoration of his seniority as it existed on Decem-
ber 31, the date of his discharge or suspension.
We shall also order the Employer and Union jointly and severally
to make James whole for any loss of pay suffered by reason of dis-
crimination against him, by payment to him of a sum of money equal
to the amount he would normally have earned as wages from the date
of the discrimination until James' reinstatement, less his net earnings
during this period. The loss of earnings shall be computed in the
manner prescribed in F. TV. Woolworth Company, 90 NLRB 289, and
with interest on the backpay due in accordance with Board policy set
out in Isis Plumbing & Heating, Co., 138 NLRB 716. We shall also
order the Employer to make available to the Board, upon request,
payroll and other records to facilitate the checking of compliance
with our Order.
Upon the above findings of fact, and upon the entire record in the
case, we hereby make the following :
ADDITIONAL CONCLUSIONS or LAW
Delete the Trial Examiner's conclusion of law Nos. 3, 4, 5, and 6
and substitute the following paragraphs.
3. By discharging Harold C. James for reasons other than his failure
to tender periodic dues and initiation fees to Respondent Local 182,
4 International Ur,on of Electrical, Radw and Machine Workers , AFL-CIO, Frigadalre
Local 801 ( General Motors Corporation, Frigidaire Division ) v. N.L.R.B , 307 F. 2d 679
(C.A.D.C.), enfg. 129 NLRB 1379 and 130 NLRB 1286, cert. denied 371 US. 936.
217-919-66-vol. 15 6-2 3
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Associated Transport, Inc., violated Section 8(a) (3) and
(1) of the Act.
4. By causing Respondent Associated Transport, Inc., to discharge
Harold C. James for reasons other than his failure to tender periodic
dues and initiation fees, Respondent Local 182 violated Section 8(b)
(2) and (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that:
A. Respondent Associated Transport, Inc., North Tonawanda, New
York, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in Local 182, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, or in any other labor organization of its employees, by discharg-
ing, or in any other manner discriminating against any employee in
regard to hire or tenure of employment or any term or condition
of employment, except as authorized in Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8(a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Restore to Harold C. James his seniority or other rights and
privileges of his former employment, and jointly and severally with
the Respondent Local 182 make him whole for any loss of pay suffered
as a result of the discrimination against him, in the manner set forth
in the section above entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination or copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to an analysis of the amount of back-
pay due under the terms of this Order.
ASSOCIATED TRANSPORT, INC. 341
(c) Post at its place of business in North Tonawanda, New York,
copies of the attached notices marked "Appendix A" 5 and, as soon as
forwarded by the Regional Director, "Appendix B." Copies of such
notices, to be furnished by the Regional Director for Region 3, shall,
after being duly signed by the Respondent Employer's representative,
be posted immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 3, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
B. Respondent Local 182, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, its officers, rep-
resentatives, and agents, shall :
1. Cease and desist from :
(a) Causing or attempting to cause Respondent Employer to dis-
criminate against any of its employees in violation of Section 8(a) (3)
of the Act.
(b) In any like or related manner restraining or coercing employ-
ees in the exercise of rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Jointly and severally with Respondent Employer make whole
Harold C. James for any loss of pay suffered as a result of the dis-
crimination against him in the manner set forth in the section above
entitled "The Remedy."
(b) Notify Harold C. James and the Employer, in writing, that it
withdraws its objections to James' employment and does not oppose
reinstatement and the restoration of his full seniority or other rights
and privileges as they existed on December 31, 1964, the date of his
discharge.
(c) Post at its business office copies of the attached notice marked
"Appendix B." 6 Copies of said notice, to be furnished by the
Regional Director for Region 3, shall, after being duly signed by the
Respondent Union's representative, be posted immediately upon
5In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
0 See footnote 5, supra.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be taken to
insure that such notices are not altered, defaced, or covered by any
other material.
(d) Forward signed copies of Appendix B to the Regional Director
for posting by the Employer at its place of business.
(e) Notify the Regional Director for Region 3, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT encourage membership in Local 182, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or any other labor organization, by discharging
or in any other manner discriminating against any employee in
regard to hire or tenure of employment or any term or condition
of employment, except as authorized by Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as author-
ized in Section 8(a) (3) of the Act, as modified by the Labor-
ihlanagement Reporting and Disclosure Act of 1959.
WE WILL restore to Harold C. James his seniority or other
rights and privileges attaching to his former position and make
him whole for any loss of pay suffered as a result of our dis-
crimination against him.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of the above-named Union or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting Disclosure Act
of 1959.
ASSOCIATED TRANSPORT, INC.,
Employer.
Dated---------------- By---------------------------=--------
(Representative) (Title)
ASSOCIATED TRANSPORT, INC. 343
This notice must remain posted for 60 days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, 120 Delaware Avenue, Buffalo, New York, Telephone
No. 842-3100.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that
WE WILL NOT cause or attempt to cause Associated Transport,
Inc., to discriminate against Harold C. James or any other
employee in violation of Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL notify Associated Transport, Inc., and Harold C.
James, in writing, that we withdraw our objections to his employ-
ment and do not oppose James' reinstatement and the restoration
of his full seniority or other rights and privileges as they existed
on December 31, 1964, the date of his discharge.
WE WILL make Harold C. James whole for any loss of pay
suffered because of the discrimination against him.
WE WILL NOT in any like or related manner restrain-or coerce
employees in the exercise of the rights guaranteed in Section 7
of the Act, except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
LOCAL 182, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA,
Labor organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance
with its provisions, they may communicate directly with the Board's
Regional Office, 120 Delaware Avenue, Buffalo, New York, Telephone
No. 842-3100.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On charges filed by Harold C. James against Local 182, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein referred
to as the Respondent Union, and Associated Transport, Inc., herein referred to as
the Respondent Company, on April 8 and May 17, 1965, respectively, the General
Counsel of the National Labor Relations Board on behalf of the Board by the Acting
Regional Director for Region 3 on May 26, 1965, issued an order consolidating cases,
consolidated complaint, and notice of hearing against the Respondent Union and the
Respondent Company. The consolidated complaint alleged that the Respondent
Company had engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended, herein called the Act, and that the Respondent Union had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8(b)(1)(A) and 8(b)(2) of the Act. The Respondents filed
timely separate answers to the consolidated complaint denying that they had engaged
in or were engaged in the unfair labor practices as alleged.
The basic issues which were present for consideration and framed by the consoli-
dated complaint and answers were whether in violation of the Act the Respondent
Union attempted to cause and did cause the Respondent Company to discharge
Harold C. James, its employee, because of his failure to pay to the Respondent Union
moneys for dues and whether in violation of the Act the Respondent Company pur-
suant to the request of the Respondent Union did discharge Harold C James, its
employee, because of his failure to pay Respondent Union moneys for dues.
On the issues framed by the consolidated complaint and answers, and pursuant to
notice, this case was heard before Trial Examiner Lowell Goerlich in Buffalo, New
York, on August 3 and 4, 1965. At the hearing the General Counsel and the Respond-
ents were represented by counsel and the Charging Party, Harold C. James, appeared
on his own behalf. Each party was afforded full opportunity to present evidence rele-
vant to the issues, to call, examine, and cross-examine witnesses, to present oral argu-
ment, to file proposed findings and conclusions, and to file briefs. Briefs were sub-
mitted by the General Counsel and the Respondent Union and have been duly
considered by me.
On the record as a whole and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
The Respondent, Associated Transport Inc., is now, and has been at all times mate-
rial herein, a Delaware corporation with its principal office at 380 Madison Avenue,
New York, New York, and has been engaged in the business of operating trucking
terminals including a truck terminal located at North Tonawanda, New York, and of
performing trucking services in and between the various States of the United States,
including the States of New York, Pennsylvania, Ohio, North Carolina, South Caro-
lina, and Georgia, and has been at all times material herein continuously engaged in
part in providing and performing trucking services between its North Tonawanda,
New York, terminal and points outside the State of New York. During the past year,
a representative period, the Respondent Company performed in excess of $1 million
worth of trucking services of which services valued in excess of $1 million were per-
formed between the various States of the United States During the same period,
the Respondent Company performed trucking services valued in excess of $50,000
which services consisted of transporting merchandise directly from Respondent Com-
pany's North Tonawanda, New York, terminal to points outside the State of New
York. During the same period, the Respondent Company performed trucking services
valued in excess of $50,000 which services consisted of transporting merchandise
directly from points outside of the State of New York to the Respondent Company's
Tonawanda, New York, terminal.
The Respondent Company is now and has been at all times material herein an
employer engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
IT. THE LABOR ORGANIZATION INVOLVED
Local 182, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the meaning of Section 2(5)
of the Act.
ASSOCIATED TRANSPORT, INC.
III. THE ALLEGED UNFAIR LABOR PRACTICES
345
Background
The parties stipulated that Charging Party Harold C. James was on or about
December 31, 1964, discharged pursuant to the request of the Respondent Union.'
The Respondent Company reemployed James on June 23, 1965. Prior to his dis-
charge, James was employed as a truckdriver attached to the Respondent Company's
North Tonawanda terminal which, the parties stipulated, was located within the
territorial jurisdiction of Teamsters Local 449.
James' employment relationship was governed by a National Master Freight Agree-
ment covering over-the-road and local cartage employees of private, common, con-
tract, and local cartage carriers for the period of February 1, 1964, to March 31, 1967,
and by a supplemental agreement , the New York State Teamsters Joint Council
Freight Division Over the Road Motor Freight Supplemental Agreement covering
drivers employed by private, common, and contract carriers for the period of
August 1, 1964, to Match 31, 1967, in the jurisdiction of the following local unions:
Nos. 65, 118, 182, 294, 317, 449, 506, ,529, 648, 649, 687, and 693.2 Employees
covered by the latter agreement were defined "to mean any driver, chauffeur, or
driver-helper operating a truck-tractor, motorcycle, passenger or horse-drawn vehicle,
or any other vehicle operated on the highway, street, or private road for transportation
purposes when used to defeat the purposes of this Agreement." The National Master
Agreement provides that "The execution of this Master Agreement on the part of the
employer shall cover all operations of the Employer which are covered by this Agree-
ment, and shall have application to the work performed within the classifications
defined and set forth in the Agreement supplemental hereto." In reference to the
supplemental agreement, the National Master Agreement provides that "All .
supplemental agreements are subject to and controlled by the terms of this Master
Agreement . . ." and that the Master Agreement and the supplemental agreements
shall be "binding upon the parties" thereto.
The National Master Agreement provides for a single bargaining unit composed of
"The employees covered under [the] Master Agreement and various supplements
thereto." Under the National Master Agreement "The Employer recognizes and
acknowledges that the National Union Committee and Local Unions affiliated with
the International Brotherhood of Teamsters are the exclusive representatives of all
employees in the classifications of work covered by the Master Agreement and
Supplements thereto for the purposes of collective bargaining as provided by the
National Labor Relations Act." The National Master Agreement further provides
that "All present employees who are members of the Local Union on the effective
date of this subsection or on the date of execution of this Agreement, whichever is
the later, shall remain members of the Local Union in good standing as a condition
of employment. All present employees who are not members of the Local Union
and all employees who are hired hereafter shall become and remain members in good
standing of the Local Union as a condition of employment on and after the 31st day
following the beginning of their employment or on and after the 31st day following
the effective date 3 of this subsection or the date of this subsection or the date of this
Agreement, whichever is later." [Emphasis supplied.]
The Master Agreement defines the term "local union" as follows: "The term `Local
Union' as used herein refers to the I.B.T. Local Union which represents the employees
of a particular employer for the purpose of collective bargaining at the particular
place or places of business to which this agreement and the supplements thereto are
applicable, unless by agreement of the Local Unions involved, or a Change of Opera-
tions Committee jurisdiction over such employees, or any number of them, has been
transferred to some other Local Union, in which case the term Local Union as used
herein shall refer to such other Local Unions." At the time of his discharge James
was not a member of any "I.B.T. Local Union."
James was hired as an over-the-road driver on August 26, 1965, by the Respondent
Company to be attached to its North Tonawanda terminal. Sometime prior to Decem-
ber 3, 1956, James applied for membership in Local 449, "the I.B.T. Local Union"
1 William Mosley, regional manager for the Respondent Company, testified that Rock-
well F. DePerno, president of the New York State Teamsters Joint Council, Freight
Division, and Local 1'82 said to him that "James had to be suspended or we were on
strike "
2 These agreements sometimes are referred to herein together as the 1964 Teamsters'
agreements.
3 The National Master Agreement was executed on January 16, 1964, "to be effective
as of February 1, 1964."
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which administers the 1964 Teamsters' agreements for those over-the-road drivers
who are attached to the Respondent Company's North Tonawanda terminal. James
deposited $25 with Local 449. On December 3, 1956, the minutes of Local 449
relate, "Harold James application held up because he reported he was formerly a
member of Local 822 in Norfolk, Virginia. Communications sent to Local #822
asking for information which resulted in an answer stating #822 had no record of
James ever being a member. In the meantime James has become unemployed and
in accordance with the constitution is now not eligible for membership and his initia-
tion fee has been refunded." James received a check dated December 14, 1956, from
the Truckdriver's Local Union No. 449 returning the $25 which he had deposited.
James testified that he had attended a meeting of Local 449 and "was sworn in"
but when he tried to pick up his union book, the girl in charge said that she had orders
"to hold it up." After his deposit was returned by Local 449, James heard nothing
further from the local. Thereafter James continued as the only over-the-road driver
working for the Respondent Company out of its North Tonawanda terminal who
was not a member of Local 449.4 James worked without a book until 1959 at which
time he was told that if he did not have a book he could not pull his freight out of the
Utica, New York, terminal.5 James explained, "I talked to Mr. DePerno about it
and explained the situation to him of what happened-on 449. He says, `Well, we'll
take you into the Utica local 6 I will put your transfer through from 449. If they
don't accept it. We'll find out why.' That's how I was taken into 182." James paid
dues and carried a book thereafter in the Utica, New York, Local No. 182. At the
time of his discharge his dues, except for $12, were paid for the year 1962. James
paid no dues thereafter.? Local 182 ledger record reveals that James was expelled
from the local on March 1, 1963,8 James was never notified by the local of the action
taken against him by the local or that he was delinquent in the payment of dues.
Upon his discharge James contacted Belden of Local 182 who advised him that the
local had not received his 1964 dues. James replied that he had mailed a "money
order for $70 in January." James then sent a money order for $100 to the union
with a note that he "sent $68 in Jan. 1964 for dues." The $100 money order was
returned on February 4, 1965, with a letter from the local's secretary-treasurer stating
that James was $197.25 in arrears for dues. James took no further step to liquidate
the arrearage. I asked James whether he thought that if he "ceased paying dues in
Local 182" he might lose his job James responded, "No doubt about it, I figured
I would. That's why I tried to pay my dues and tried to keep them up."
DePerno testified that at a council meeting of the New York Teamsters he brought
to the attention of the delegates that Wells, president of Local 449, "had a man [James]
running up and down the highways for two or three years without paying dues to any
body." According to DePerno the delegates did not "like the idea." DePerno com-
mented, "I think it's a detriment to the Teamsters movement to a man running up
and down the highways this way. If you [Wells] won't take him, have you any objec-
tion to any other union in the State covered by this agreement." Wells answered
that he had "no objection," whereupon DePerno said that he would take James into
the Utica local union and that the Utica local would represent him. Wells was
agreeable and a couple of months later James became a member of Local 182.
According to James, in 1962 he sought to process a grievance through Local 449.
Local 449 referred him to the Utica Local 182. On February 20, 1963, a warning
letter was issued by the Respondent Company to James, a copy of which was sent to
Local 182. A copy of a warning notice is sent to the Union which represents the
individual.
'Rockwell F. DePerno, president of the New York Teamsters Joint Council, Freight
Division, and Local 182, testified that employees other than James worked within the
jurisdiction of Local 449, who were members of other Teamsters locals
'The distance between North Tonawanda, New York, and Utica, New York, is approxi-
mately 200 miles.
8 The Utica local is Local 182.
7 While James claimed he had transmitted dues to Local 182 by money order for the
years 1963 and 1964, the money order receipt numbers which he produced were for the
years 1961 and 1962.
8 The constitution of the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America provides "Any member who, shall be (3) months in
arrears in the payment of dues, fines , assessments, or other charges , shall automatically
stand suspended at the end of the third (3d) month, and shall not be entitled to any
rights or privileges as a member of the Local Union or International Union."
ASSOCIATED TRANSPORT, INC. 347
Concluding Findings
First: The 1964 Teamsters agreements referred to above required all employees
of the Respondent Company to "become and remain members in good standing of
the Local Union as a condition of employment ... on and after the 31st day follow-
ing the effective date of [the] subsection [March 3, 1964] or the date of [the] agreement
[February 16, 1964] whichever is later." 9 On March 1, 1963, Harold C. James was
expelled from membership in Local 182, he had been delinquent in the payment of
dues since November 1962. Thus on March 3, 1964, James was not a member of a
"Local Union" nor had he tendered the periodic dues uniformly required as a condi-
tion of retaining membership. He was lacking in a condition for continued employ-
ment and became subject to immediate discharge under the union-security clause of
the 1964 Teamsters' agreements. Moreover, unless James was excused from the per-
formance of the requirements of the union-security clause, his subsequent discharge
was lawful and not in violation of Section 8(a)(3) of the Act. Apparently the
General Counsel does not contend otherwise but urges that James is excused from
performance because in 1956 he tendered appropriate fees to Local 449, "the only
local which could properly accept them," and thus fulfilled "all legal obligations for
union security." However, James' default occurred on March 3, 1964, under an
agreement which did not come into existence until over 7 years after he was refused
membership in Local 449 because he became "unemployed" and "in accordance
with the constitution" was not eligible for membership.1° These happenings in 1956
lend no support to an inference 11 that in 1964 Local 449 would not have accepted a
tender of appropriate fees from James which he was obliged to make if Local 449
were the "local union" to which he was required to make tender under the union-
security clause. Under the circumstances, the fact that James was not admitted to
membership in Local 449 in 1956 does not excuse him.in 1964 from the performance
of the union-security provision of a contract which was not in existence in 1956 but
first appeared in 1964 12 Moreover, if inferences are to be drawn from remote hap-
penings, it is clear that in 1960 when James became a member of Local 182, Local 449
by agreement transferred jurisdiction over James to Local 182 and James became
obligated to such local under the union-security clause of the 1964 agreements.13
At a meeting of the New York Teamsters Joint Council, Local 449 relinquished
jurisdiction over James at the behest of President DePerno. Thereafter, Local 449
referred James to Local 182 for the processing of his grievances against the Respond-
ent Company. James admitted that he "looked to Local 182 to handle [his] griev-
ances." On at least one occasion Local 182 considered a grievance brought to its
attention by James. Indeed James recognized he might lose his job if he did not pay
dues to Local 182. The Respondent Company recognized the representative status
of Local 182 in respect to James in that it transmitted to Local 182 a copy of a warn-
ing letter addressed to James dated February 20, 1963. Moreover, Local 182, as a
party to the 1964 Teamsters' agreements, had a direct interest in the compliance of
the union-security terms of the agreement and consequently had standing to insist
upon the performance of these terms.14 The condonation of "free riders" would
adversely affect the financial means for administering the agreements of which Local
182 was a beneficiary.
'The General Counsel makes no contention that this union-security clause does not
satisfy the requirement of Section 8(a) (3) of the Act.
1s The minutes of Local 449 which reveal the reason for the denial of membership to
James were offered into evidence by the General Counsel for which reason they are
presumed to be accurate and truthful as to the action taken by the local.
n Remoteness in point of time may render evidence irrelevant "where lapsed time is so
great as to negative all rationale or logical connection between the fact sought to be
proved and the remote evidence in proof thereof." Jones on Evidence, p 273 (5th ed ).
"As the record stands prior contracts, if any, may not have contained union-security
clauses
13 The National Master Agreement provides that if the local unions involved agree to
transfer jurisdiction over an employee from one local to another, the other local shall
become the local union to which the union-security clause refers and the transferred em-
ployee must become or remain a member of such local.
14 "A labor organization which is a party to a union-security contract is entitled to
require some form of adherence to its terms." Plasterers Union Local No. 77 Operative
Plasterers' and Cement Masons' International Association (Piper & Greenhall, Inc.), 143
NLRB 765, 767.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Grain Processors' Independent Union, Local No. 1 (Union Starch & Refining
Company), 87 NLRB 779, 784, enfd. 186 F. 2d 1008 (C.A. 7), cert. denied 342 U.S.
815, in reference to Section 8(a)(3) of the Act the Board said ". . . proviso (B)
requires a tender of dues and fees ...." Since on March 3, 1964, the date upon
which the union-security clause became applicable to him, James did not tender the
appropriate fees required under such clause he lost the protection of proviso (B) in
that he did not perform his statutory and contractual obligations. James became
vulnerable to discharge under the Respondent Union's union-security agreement with
the Respondent Company and his discharge which followed was not in violation of
Section 8(a)(3) of the Act. An employer may lawfully accede to a request from a
union to discharge an employee "where there exists a valid union security clause"
and the "employee has failed to tender the initiation fees and dues properly owing
the Union as a consequence of that clause." The Gabriel Division of the Maremont
Corporation, 153 NLRB 631. Thus the Respondent Company did not violate
8(a)(1) or 8 (a)(3) of the Act and the Respondent Union did not violate 8(b)(2).
Second: The General Counsel's reference to Miranda Fuel Company Inc., 140
NLRB 181, 185 is pertinent . Therein the Board held ". . . we are of the opinion
that Section 7 thus gives employees the right to be free from unfair ... treatment by
their exclusive bargaining agent in matters affecting their employment" and "Sec-
tion 8 (b)(1)(A) of the Act accordingly prohibits labor organizations, when acting
in a statutory representative capacity, from taking action against any employee upon
considerations ... which are ... unfair." The Board cites International Union of
Electrical, Radio and Machine Workers, AFL-CIO, Frigidaire Local 801 (General
Motors Corporation, Frigidaire Division) v. N.L.R.B., 307 F. 2d 679, 683 (C.A.D.C.)
in which the court opined:
Among the most important of labor standards imposed by the Act as amended
is that of fair dealing, which is demanded of unions in their dealings with
employees.
The court observed that the obligation of "fair dealing carries with it "the duty
to inform the employee of his rights and obligations so that the employee may take
all necessary steps to protect his job."
In affirming Philadelphia Sheraton Corp., 136 NLRB 888, the court said in N.L.R.B.
v. Hotel, Motel and Club Employees' Union, Local 568, AFL-CIO, 320 F. 2d 254,
258 (C.A.3):
The comprehensive authority vested in the union, as the exclusive agent of
the employees, leads inevitably to employee dependence on the labor organiza-
tion. There necessarily arises out of this dependence a fiduciary duty that the
union deal fairly with employees ... At the minimum, this duty requires that
the union inform the employee of his [dues] obligations in order that the
employee may take whatever action is necessary to protect his job tenure.
The court held in that the Union "failed to advise the employees of their obliga-
tions and the consequences arising out of arrearages allegedly incurred" the Board
could "properly find that no obligation to pay dues arose, and that the union's demand
for discharge violated the Act."
Local 182's precipitious demand for James' discharge upon threat of strike without
first communicating with him, under the circumstances of this case is incompatible
with Local 182's role as a statutory collective-bargaining agent. Local 182's agents
were conversant with the events which were involved in James' rejection for mem-
bership by Local 449 15 and his assumption of membership in Local 182. Thus
Local 182 must have known that the inaction of Local 182 during the 2-year lapse
during which James failed to pay dues would have led James to believe that Local
182 had abandoned interest in him as a member, as did Local 449, or that under the
most recent Teamsters' agreements he was not required to maintain membership in
Local 182.16 Moreover, the question of James' transfer to Local 449, as far as
James was concerned, had never been finally settled 17 nor had James been advised
what was required of him by way of compliance with the union-security provision of
15 Although it was not urged certain of the testimony in the record suggests that
membership in Local 449 was not available to James on the same terms and conditions
generally applicable to other members
16 This was the position taken by the General Counsel in respect to James' obligation
to Local 182
17 James testified "When I joined 182, I had the understanding he [DePerno] was
going to put the transfer through to 449 for me "
ASSOCIATED TRANSPORT, INC. 349
the 1964 Teamsters' agreements which became applicable to him on March 3, 1964,
a long time after he had ceased paying dues to Local 182. Moreover, it would have
been reasonable for James to have assumed that by reason of Local 182's failure to
press collection of its dues for such a long period, no obligation to pay dues to Local
182 arose under the 1964 Teamsters' agreements. The record is barren of any rea-
son for Local 182's failure to contact James before it demanded his discharge.
Indeed upon the information in the possession of Local 182 at the time of the
demand, as disclosed in the record, James might well have been a member in good
standing of Local 449. The distance of over 200 miles between James' place of
work and Local 182's headquarters, which obviously limited his participation in
local union's affairs, was enough to put Local 182 on notice that James' over 2 years'
dues delinquency should have been investigated rather than seized upon as a cause
for dismissal. As a minimum of fair treatment these circumstances imposed upon
the Respondent Union the duty, before it demanded James' discharge, to inform
James of the circumstances surrounding his union status with it, so that he could
take whatever action was necessary "to protect his job tenure." A union may not
evade this duty and then demand the dismissal of an employee when he becomes
delinquent in the payment of his dues. N.L.R.B. v. Hotel, Motel and Club Employ-
ees' Union, Local 568, AFL-CIO, supra.
A purpose of the Act is "to protect the rights of individual employees in their rela-
tions with labor organizations whose activities affect commerce " (See declaration
of policy.) The right of employees "to bargain collectively through representatives
of their own choosing," guaranteed under Section 7, becomes an empty right if the
bargaining agent fails or refuses to fulfill the obligations imposed upon it by the Act
and treats an employee it is bound to represent unfairly. The statutory protection
afforded unions against "free riders" was not meant to allow a union to be more
zealous in the collection of dues than the preservation of the employee's job. It is
the responsibility of an exclusive bargaining representative to "act as a genuine
representative." See Miranda Fuel Company, Inc., supra, at 184. "The bargaining
representative, whoever it may be, is responsible to, and owes complete loyalty to,
the interests of all whom it represents." Ford Motor Company v. Huffman, 345 U.S.
330, 338.
Under the circumstances disclosed in the record, having failed to apprise James
of his dues paying obligations, the Respondent cannot justify its demand for the
discharge of James. Accordingly, solely for the foregoing reasons, by causing the
Respondent Employer to discharge James, the Respondent Union has violated Sec-
tion 8 (b) (1) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union set forth in section III, above, occurring
in connection with the operations of the Respondent Company set forth in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It has been found that the Respondent Union has engaged in and is engaging in
unfair labor practices. Thus it will be recommended that the Respondent Union be
required to cease and desist therefrom and take certain affirmative action set out
below designed to effectuate the purposes of the Act.
Employee Harold C. James returned to employment with the Respondent Com-
pany on June 23, 1965. To effectuate the purposes of the Act it is recommended
that the Respondent Union notify the Respondent Company, in writing, with a copy
to Harold C. James, that it withdraws its objections to the Respondent Company's
employment of James and does not oppose his reinstatement or the restoration of
his seniority as it existed on December 31, 1964, the date of his discharge.
CONCLUSIONS OF LAW
1. Associated Transport, Inc., is an employer engaged in commerce within the
meaning of Section 2(6) of the Act.
2. Local 182, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization within the meaning of Section
2(5) of the Act.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By causing the discharge of Harold C. James, the Respondent Union has
restrained and coerced employees in the exercise of their rights guaranteed in Section
7 of the Act, and has thereby engaged in unfair labor practices within the meaning
of Section 8 (b) (1) (A) of the Act.
4. The Respondent Union has not engaged in any unfair labor practices by reason
of conduct alleged in the complaint to have been in violation of the Act except insofar
as such conduct has been found hereinbefore to have violated 8(b) (1) (A) of the Act.
5. The Respondent Company has not violated Section 8(a)(1) and (3) of the
Act as alleged in the complaint.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Assonet Trucking Company, Inc.; Assonet Sand & Gravel Com-
pany, Inc. and Chauffeurs & Teamsters Local Union #526, In-
ternational Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America .' Cases Nos. 1-CA-4653 and 1-CA-
4750. December 27,1965
DECISION AND ORDER
On May 25, 1965, Trial Examiner Robert E. Mullin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondents filed exceptions to the
Trial Examiner's Decision and a supporting brief, and the General
Counsel filed with the Board the brief submitted to the Trial
Examiner.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in these cases, including
1 Herein called the Teamsters.
2 On June 29 , 1965, the Respondents filed with the Board copies of the weekly time-
cards of employee Stanley Mason, and moved that they be made part of the record in
these cases . The General Counsel filed a motion in opposition to the request . The time-
cards are not newly discovered evidence ; in fact, the General Counsel sought to subpena
them in advance of the hearing , and the Respondents presented evidence at the hearing
as to the work record of Mason during the weeks in question . In view of these facts,
the Respondents ' request that the Board receive this additional evidence is hereby denied.
156 NLRB No. 35.