Furniture Movers Local 82, Teamsters

National Labor Relations Board - Board Decisions

May 23, 1974

210 N.L.R.B. 838 (N.L.R.B. 1974)

838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furniture and Piano Moving , Furniture Store Drivers,
Helpers, Warehousemen and Packers Local #82,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca (Arlington Storage , Inc., and Henry F. Owens,
Inc.) and Roland J. Breton . Case 1-CB-2346
May 23, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
established , either by the facts within a particular case or by prior Board
decisions against the Respondent at bar, based on similar unlawful conduct
in the past . We find no pattern of continued unlawful conduct which
warrants a broad remedial order Accordingly , we shall modify the remedial
order
The Respondent further excepts to the "Remedy" and states in its bnef
that the Charging Party has been validly discharged subsequent to the
instant hearing, pursuant to the applicable provisions of the Act and of the
collective -bargaining agreement between Arlington Storage and Local 82
for failure to attain membership status after he had been employed for 30
days by Arlington Storage As this information in the Respondent 's bnef is
not a matter of record before us , we cannot pass upon it However, the
information may appropriately be submitted during the compliance stage of
the proceedings
APPENDIX
On January 17, 1974, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt her recommended Order,' as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Furniture and Piano Moving, Furniture Store
Drivers, Helpers, Warehousemen and Packers Local
#82, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Quincy, Massachusetts, its officers, agents, and
representatives, shall take the action set forth in said
recommended Order, as so modified.
1. Delete paragraph 1(a) of the recommended
Order and substitute the following:
"(a) Causing or attempting to cause Arlington
Storage, Inc., or Henry F. Owens, Inc., to discrimi-
nate against employees except to the extent permit-
ted by the proviso to Section 8(a)(3) of the Act, as
amended."
2. Substitute the attached notice for that of the
Administrative Law Judge.
i The Respondent excepted to the recommended broad order requiring
Respondent to cease and desist from unlawfully causing any employer to
discriminate against any employee We find merit in this exception A broad
remedial order is appropriate whenever a proclivity to violate the Act is
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the chance to
present their evidence, the National Labor Relations
Board has found that we violated the law by causing
Henry F. Owens, Inc., and Arlington Storage, Inc., to
discharge Roland J. Breton because he was not a
member. We have been ordered to post this notice.
We intend to carry out the order of the Board and
abide by the following:
WE WILL NOT cause or attempt to cause Henry
F. Owens, Inc., or Arlington Storage, Inc., to
discriminate against Roland J. Breton because of
his nonmembership, except to the extent that such
action is permitted by an agreement in accord-
ance with Section 8(a)(3) of the National Labor
Relations Act.
WE WILL request Henry F. Owens, Inc., to offer
reinstatement to Roland J. Breton.
WE WILL request Arlington Storage, Inc., to
afford Roland J. Breton all benefits he would
have had but for the break in his employment
owing to the discrimination against him.
WE WILL make Roland J. Breton whole for loss
of pay suffered by reason of the discrimination
against him, with interest at 6 percent per annum.
FURNITURE AND PIANO
MOVING, FURNITURE
STORE DRIVERS,
HELPERS,
WAREHOUSEMEN AND
PACKERS LOCAL #82,
A/W INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
210 NLRB No. 136
FURNITURE MOVERS LOCAL 82, TEAMSTERS 839
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Seventh Floor, Bulfinch Building, 15
New Chardon Street, Boston, Massachusetts 02114,
Telephone 617-223-3300.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
proceeding, heard at Boston, Massachusetts, on October
18, 1973, pursuant to a charge filed on June 29, 1973, and a
complaint issued on August 10, 1973, presents the question
of whether Respondent caused Henry F. Owens, Inc.
("Owens, Inc."), and then Arlington Storage, Inc. ("Arling-
ton"), to discharge the Charging Party because of his
nonmembership in Respondent, in violation of Section
8(b)(2) and (1)(A) of the National Labor Relations Act, as
amended ("the Act").
Upon the entire record, including my observation of the
witnesses, and after due consideration of the helpful briefs
filed by Respondent and counsel for the General Counsel,
I make the following:
FINDINGS OF FACT
1. JURISDICTION
Owens, Inc., and Arlington are both Massachusetts
corporations engaged in the business of furniture moving
and storage at their principal offices and places of business
in Cambridge and Arlington, Massachusetts, respectively.
Each derives annual revenue exceeding $50,000 from the
interstate transportation of furniture and other goods.
Respondent Furniture and Piano Moving, Furniture Store
Drivers, Helpers, Warehousemen and Packers Local #82,
a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America ("the Union" or
"Local 82") is a labor organization within the meaning of
Section 2(5) of the Act.
I find that, as the Union concedes, Owens, Inc., and
Arlington are each engaged in commerce within the
meaning of the Act, and that assertion of jurisdiction
herein will effectuate the policies of the Act.
i My findings as to this conversation are based on the credited testimony
of Owens, who impressed me as a wholly honest witness As counsel for the
General Counsel points out, Owens' action in terminating Breton shortly
after this conversation, together with the testimony by both Owens and
Rofe that during this conversation Owens expressed a need for Breton's
services, supports Owens' testimony that Rofe asked for Breton' s immediate
discharge, but is inconsistent with Rofe's testimony that he told Owens that
if Breton did not pay a $175 reinstatement fee in due time, a discharge
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Breton's Discharge by Owens, Inc., and then by
Arlington
Roland J. Breton, the Charging Party, joined Local 82 in
the mid-1940's. However, at the time of the events which
gave rise to this case, he was not a member in good
standing of that Union. Breton joined Teamsters Local 68
about 1957, and Teamsters Local 25 at a time not clear in
the record.
On May 21, 1973, Henry F. Owens, who is president of
Owens, Inc., hired Breton for a job covered by a collective-
bargaining agreement between Owens, Inc., and the
Union, which contract contains provisions (discussed infra)
requiring newly hired nonmembers to join the Union
after 30 days in order to keep their jobs. On May 21 or 22,
Union Steward Walter McCarthy (who is an employee of
Owens, Inc.) telephoned the Union's secretary-treasurer
and business agent, Henry J. (nicknamed "Barney") Rofe,
to report Breton's hire. Rofe asked whether Breton had
been in any other Union; McCarthy replied that he had
been a member of Teamsters Locals 68 or 25. Rofe asked
whether Breton had transferred. McCarthy said that he
would check and then call Rafe again. Thereafter, Rofe
received information which (he testified) led him to believe
that Breton had been suspended from Local 82 in 1945 for
nonpayment of dues.
Rofe then telephoned President Owens and told him that
"under no condition" was he to put Breton to work, that
Breton was "bad news," and that "He is giving us a lot of
trouble and I don't want you to put him to work, now
that's it." President Owens "pleaded" with Rofe, "I got to
put him to work. I need the man." Rofe replied, "Don't put
him to work. That's it." Rofe did not explain what
problems the Union had with Breton, or indicate what
would happen if Owens retained Breton.'
When Breton came in from the job on the evening of
May 22, President Owens told him that "Barney had called
[Owens] up and told him under any circumstances not to
work" Breton. Owens told him to get straightened out with
the Union and then come back to work, "that 's all I can
do, I can't put you to work, I want you, I need you."
Owens testified that Breton had told him he was transfer-
ring over from Local 25 to Local 82 and that Owens knew
Breton had 30 days to join the Union. Owens further
testified that he discharged Breton because Rofe told
Owens not to put him to work.
On May 29, 1973, Thomas Robinson, Arlington's
operations manager, hired Breton for a job which was
covered by a collective-bargaining contract (between
Arlington and the Union) identical to the Union's
agreement with Owens, Inc. Breton started working for
Arlington on Wednesday, May 30, 1973. On Friday, June
1, Arlington employee Donald Catarino, the Union's shop
request would be forthcoming in the future Moreover, as counsel for the
General Counsel further points out, Rofe's version of the conversation is
difficult to square with his testimony that ordinarily, the stewards are
supposed to advise newly hired nonmembers that they must join within 30
days, and that it is the steward 's notification of such an employee's
noncompliance that triggers Rofe's office into getting in touch with the
employer. Furthermore, Rofe's testimonial demeanor was unimpressive.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
steward , told Robinson that he could not use Breton,
Breton had to join the Union. After a discussion, Catanno
said that he would "check the matter out" with Rofe, and
would get back to Robinson because he had Breton
scheduled for Monday. On the following day, Saturday,
Catarino telephoned Robinson at his home and stated that
"there was some problem with Mr. Breton being in the
Union and until they got it straightened away, [Robinson]
could not use him." Catarino made it "fairly clear" that
Breton could not work the following Monday.
Later that same Saturday, Robinson received an unex-
pected telephone call at his home from Rofe. Rofe told
Robinson that he "could not use Mr. Breton, that he did
have to solve his problems with the Union." 2 Later that
weekend, Robinson telephoned Breton and told him that
Robinson could not work him any longer because
"Barney" had told Robinson not to work him, and that
Robinson could not use Breton until he had straightened
out his problems with the Union. Robinson added that he
was "sorry that he had to do it." Breton had previously told
Robinson that he was not a member of Local 82 but was
trying to get a transfer thereto from Local 25. Robinson
testified that he understood Breton had 30 days to join the
Union, but had discharged him anyway because of ".. .
expediency, it wasn 't worth my arguing about it, if they felt
there was a problem then I didn't want myself or the
company involved in something that was not a matter of
life and death . . . I liked the man . . . Roland Breton was
11another helper to me ... .
Breton filed the charge herein on June 29, 1973. When he
contacted the Board's Regional Office, he was asked
whether he had tried to get work from any local movers.
He replied that he could not "anywhere there is a union,"
and it was suggested that he try to go back to Arlington,
where he was entitled to work for 30 days irrespective of
his nonmembership . Breton relayed this message to
Robinson and asked him, "To be sure , would you mind
checking it with the union so I don't start any commotions
over there?" On August 20, 1973, Robinson gave Breton a
"casual" job, on which he was still employed at the time of
the hearing on October 18, 1973.3
Breton testified that he was aware of his right to a 30-day
grace period , but did not mention it to Owens or Robinson.
Before being discharged by Arlington, Breton attempted to
transfer from Local 25 to Local 82. Rofe told him that
Rofe would not accept such a transfer and that Breton
would have to pay a $175 "re-initiation" fee.4 Breton failed
2 My findings as to the conversation between Robinson and Ro`- are
based on Robinson's credited testimony After considering the witnesses'
demeanor , I do not credit Rofe's testimony that no such conversation
occurred Robinson's uncertainty as to the number of his contacts with the
Board about the instant proceeding, owing to the volume of incoming calls
at his office , does not reflect on the accuracy of his recollection about a
particular call received at home on a weekend. Further, the uncontradicted
testimony that Catanno called on Saturday to clarify whether Breton could
work on Monday, and the fact that both calls were received by Robinson at
home on a weekend , indicate to me as well as Robinson that Breton's
termination was sought immediately rather than after 30 days, whether or
not such timing was specified in terms
3 Breton testified that if he had been permitted to work for Arlington
continuously from his initial date of employment (May 30, 1973), he
believed he would have acquired enough service to become a "steady"
employee with holiday and, perhaps, other benefits. Rofe testified, in effect,
that this was inaccurate . Breton's right to be a "steady " employee in view of
to tender such a payment. By letter dated July 27, 1973,
union counsel advised Breton that Local 82 would admit
him as a member in good standing upon payment of a $175
"reinstatement fee," which was allegedly "required by the
International Constitution because you left Local 82
previously without obtaining a withdrawal card." During
the first week in August, when Breton telephoned Rofe,
Rofe told him that upon receipt of the "reinstatement fee"
he would be accepted into Local 82. Breton never came in
with the money. When this letter was sent and this
conversation occurred, Breton was not working on any job
where the employees were represented by Local 82.
Rofe testified that he had "never" instructed Arlington
Steward Catarino to tell an employer representative to
terminate Breton. Even aside from Robinson's credible
testimony regarding Catarino's remarks to him, I discredit
Rofe's testimony in this respect, in view of his demeanor
and the obvious inaccuracies in his testimony about his
conversations with Catarino regarding Rofe.5 Moreover, I
accord probative weight to Catarino's statement to
Arlington Operations Manager Robinson, in effect, that
Rofe had told Catanno to tell Arlington not to use Breton
until he got "straightened away" with the Union. Thus, a
steward (who is elected by the membership working for his
particular employer or "barn") has the duty of finding out
and advising the Union's business agent when a man starts
to work, telling him he has to join the Union, and notifying
the Union's office when an employee has not joined the
Union. The steward collects dues, notifies the employer
when a newly hired nonmember's grace period is about to
expire, is notified by the Union's office when an employee
is delinquent in his dues, and distributes union withdrawal
slips (permitting discontinuance of dues payments) when
employees leave their employments In addition, a steward
has the authority to and does investigate and present
grievances in accordance with the contract, and the
contract states that he has authority to transmit "such
messages and information which shall originate with, and
are authorized by the Union or its officers, provided such
messages and information" are in writing or "are of a
routine nature and do not involve work stoppage, slow-
downs, refusal to handle goods, or any other interference
with the Employer's business." I conclude that Catarino's
responsibilities afforded him sufficient actual and apparent
authority to render his foregoing statements to Robinson
(subsequently confirmed in part by Rofe himself) binding
the discrimination against him on and after May 22, 1973, is an issue which
can be resolved in compliance proceedings.
4 The record fails to show whether Breton was entitled to such a transfer
under the rules of these Locals and their parent International, or the effect
any such entitlement would have on his financial membership obligations.
5 More specifically, although Rofe testified that Catarino calls him every
time Arlington hires a new employee to report his name and starting date,
Rofe placed as occurring on June 15 or 16-2 weeks after Breton's
discharge by Arlington-Catarino's alleged report that Breton was working
for that firm , and dated as "some time in July" Catarino 's alleged report
that Breton was "all through "
6 Steward Catarino received a courtesy copy of a letter from Rofe to
Arlington requesting an employee 's discharge for failure to maintain good
standing membership However, because the only other letter of this nature
included in the record contains no indication that the steward was sent a
copy, I credit Rofe's testimony that the Union does not usually send the
stewards copies of such letters
FURNITURE MOVERS LOCAL 82, TEAMSTERS $41
on the union as an admission . McCormick, Evidence, § 267,
p. 641 (2d ed. 1972). #
B. Analysis and Conclusions
The credited evidence shows that Owens, Inc., dis-
charged Breton because Union Business Agent Rofe told
President Owens not to put Breton to work on the ground
that he was "bad news" and was giving the Union a "lot of
trouble"; and that Arlington discharged him because Rofe
told Operations Manager Robinson that he could not use
Breton because of unsolved "problems with the Union."
The evidence further shows that by the quoted language,
Rofe was referring to Breton's refusal to pay the Union the
$175 reinstatement or reinitiation fee which the Union
claimed was owing as a condition of obtaining membership
in good standing. Whether or not the Union could
eventually have lawfully required Breton to pay this sum in
order to keep his job, the Union concededly could not
lawfully cause Breton's discharge for failure to pay this
sum until he had been employed in the contract unit for 30
days, which he had not been.8 Moreover, as the Union
does not appear to dispute, a Union "causes" an
employee's discharge, within the meaning of the Act, by
successfully requesting the employer to effect it .9 Further-
more, laying the contractual union-secunty provisions to
one side, the action of the Union's secretary-treasurer and
business agent (Rofe) in successfully requesting Breton's
discharge would bind the Union. Thus, the Union's brief
admits that "Rofe is its agent for many purposes and .. .
may require employers to discharge certain employees on
the Union's behalf who have not become members in good
standing of the Union within thirty days of their date of
employment." Further, union counsel admitted at the
hearing that an "officer" has power to bind Local 82, at
least under some circumstances; and the constitution of
Local 82's parent International provides, "The officers of
the local union shall consist of," inter aha, a "secretary-
treasurer 10. . . These officers shall constitute the executive
board of the organization." Additionally, by testifying that
he had never "delegated" to any steward the authority to
"notify an employer or terminate any other employee,"
Rofe in effect admitted that he himself possessed such
authority." Also, Rofe has sent letters to both Owens, Inc.,
and Arlington requesting the discharge of employees under
the union-security clause. Moreover, Rofe (who is elected
to his office by the membership) negotiates contracts for
the Union, is responsible for administering them, and
attempts to resolve grievances thereunder with the employ-
er. He also takes care of all the Union's records,
correspondence, and paperwork. I conclude that discharge
requests for nonmembership lay within the scope of Rofe's
general authority.12
The Union contends , however, that it is not answerable
for Rofe's conduct herein because of the underlined
language in the following union-security clause binding
Owens, Inc., and Arlington:
All present employees who are members of the
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 Union in good
standing as a condition of employment . All present
employees who are not members of the Union and all
employees who are hired hereafter shall become and
remain members in good standing of the 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 execution date of this Agreement,
whichever is the later ... .
The failure of any person to become a member of
the Union at the required time shall obligate the
Employer, upon written notice from the Union to such
effect and to the further effect that Union membership
was available to such person on the same terms and
conditions generally available to other members, to
forthwith discharge such person. Further, the failure of
any person to maintain his Union membership in good
standing as required herein shall, upon written notice
to the Employer by the Union to such effect, obligate
the Employer to discharge such person.
However , the underlined contractual reference to a
written notice applies, in terms , to a discharge for "failure
to become a member of the Union at the required
time"-that is (so far as relevant here) on and after the 31st
day following initial hire . 13 The written notice requirement
7 In view of my finding that Rofe himself requested Robinson to
discharge Breton , and Robinson 's testimony that he discharged Breton at
least partly because of Rofe's request , I need not and do not determine
whether the Union would have been answerable if Robinson had discharged
Breton solely on the strength of a discharge request purporting to proceed
from Catanno alone
8 Although the Union 's contention that Breton owed a $175 reinstate-
ment fee as a condition of obtaining good standing membership was
apparently based on the theory that he had never effectively withdrawn
from the Union, and although the contract fails to afford any grace period
to employees who are members when hired, union counsel conceded at the
hearing that Breton was entitled to 30 days of employment before he could
be required to join Local 82 Yellow Cab Co, 148 NLRB 620, 624-625,
Teamsters Local Union No 174, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Consolidated Food and
Produce Co), 149 NLRB 1570, 1573, Brotherhood of Teamsters & Auto Truck
Drivers, Local No 70 (Sea-Land of California, Inc), 197 NLRB 125, enfd 84
LRRM 3022 (C A 9, 1973) Counsel suggested at the hearing that the
contract unit was multiemployer and that nonmembers were contractually
subject to discharge after 30 days' employment by any employer party to
the contract, whether or not the same as the discharging employer. See
Building Material and Dump Truck Drivers Local Union No 420 (Zaich Co.) ,
132 NLRB 1044 However , Breton had never worked under the contractual
union-secunty clause until starting work for Owens, Inc., on May 21, 1973,
and his last days of employment with Owens , Inc., and with Arlington were
May 22, 1973, and June 1, 1973, respectively Indeed , Breton had not
worked in a Local 82 represented unit , or paid dues to Local 82, since the
mid- 1940's.
9 San Jose Stereotypers' and Electrotypers' Union No 120 (Dow Jones &
Company, Inc), 175 NLRB 1066, fn 3.
iu Rofe testified that "you run for" secretary -treasurer and business
agent "on the same ballot, it is a combined job."
i i However , as previously indicated , I do not credit this disavowal of any
delegation to Catanno so far as Breton was concerned
i2 International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Local 249 (Lancaster Transportation Co.), 116 NLRB
399, 402-404, enfd . 249 F 2d 292 (C.A. 3, 1957)
i3 This interpretation is confirmed by the Union 's brief (p. 6): "The
Union admits that Rofe may require employers to discharge certain
employees on the Union 's behalf who have not become members in good
(Continued)
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is, accordingly, inapplicable to Breton's discharge, for
neither the witnesses nor union counsel suggest that his
discharge was sought or effected because of any failure to
join the Union by his 31st day of employment-a period
which had not elapsed (on any theory) prior to either
discharge.
In any event, even if the written notice requirement
purported to extend to the situation here, this requirement
would not exonerate the Union from liability for causing
Breton's discharge . "A principal may be responsible for the
act of his agent within the scope of the agent's general
authority, or the `scope of his employment' if the agent is a
servant, even though the principal has not specifically
authorized or indeed may have specifically forbidden the
act in question ." International Longshoremen's and Ware-
housemen 's Union, C.I.O. (Sunset Line and Twine Co.), 79
NLRB 1487, 1509. Where (as here) the agent has acted
within the scope of his general authority, the Union cannot
escape statutory responsibility for his unfair labor practices
against a wholly passive victim by pointing to a contract
purporting to limit the means by which the agent was
permitted to seek the end attained. Encinal Terminals, 193
NLRB 362, 366, fn. 12; International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Overnite Transportation Co.), 133 NLRB 62, 71,
enfd. 332 F.2d 693 (C.A. 5), cert. denied 379 U.S. 913;
United Brotherhood of Carpenters & Joiners of America,
Local Union No. 2067 (Associated General Contractors of
America), 166 NLRB 532, 538-541. Such a case is
analogous to cases where a Union has sought to disclaim
responsibility on the ground that its agent failed to comply
with one of its internal laws. Such a defense plainly will not
lie; a "contrary conclusion would provide a ready
contrivance for evasion of [the Union's] statutory obliga-
tions." Local 760, International Brotherhood of Electrical
Workers, A.F. of L. (Roane-Anderson Co.), 82 NLRB 696,
712-713.14
The Union relies upon a number of breach-of-contract
cases 15 in which the complainant's alleged injury could not
have occurred but for a purported contractual relationship
into which he entered with someone allegedly acting as
agent for the other party to the alleged contract. Under
such circumstances, the complainant's right to recover may
indeed turn on whether, in executing the alleged contract,
he relied on the agent's apparent (but which was not
actual) authority. However, the unfair labor practices here
at issues are analogous to torts of the kind where the
victim's fate could not have been affected by the extent of
his own knowledge of the agent's authority. See Lloyd
Reisner, 112 NLRB 17, 29; N.L.R.B. v. International
Longshoremen's and Warehousemen's Union, Local 10
(Pacific Maritime Association), 283 F.2d 558, 563-565 (C.A.
9, 1960). Under such circumstances, the injured party's
rights turn on principles of respondent superior and not on
any reliance showing. 3 Am. Jur. 2nd, Agency, § 261, 267,
pp. 627, 631-632 (1962); 53 Am. Jur. 2nd, Master and
Servant, § 435, pp. 453-454 (1970); Lewis v. Benedict Coal
Corp., 259 F.2d 346, 352 (C.A. 6), affd. in this respect by an
equally divided court, 361 U.S. 459, 464.16
For the foregoing reasons , I conclude that the Union
caused and attempted to cause Owens, Inc., and Arlington
to violate Section 8(a)(3) by discharging Breton for
nonmembership, at a time when he was not (and could not
lawfully be) contractually required to obtain membership
as a condition of continued employment, in violation of
Section 8(b)(2) and (1)(A) of the Act.
CONCLUSIONS OF LAW
1. Arlington Storage , Inc., and Henry F. Owens, Inc.,
are each engaged in commerce within the meaning of the
Act.
2. Respondent Furniture and Piano Moving, Furniture
Store Drivers , Helpers , Warehousemen and Packers Local
#82, a/w International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By causing and attempting to cause Arlington and
Owens , Inc., to discharge Roland J. Breton in violation of
Section 8(a)(3) of the Act, Respondent has violated Section
8(b)(2) and (1)(A).
4. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that it cease and desist
therefrom. Respondent's action in causing two different
standing of the Union within thirty days of their date of employment
Rote's agency to act in the Union's behalf in this regard is limited however
by" the union-security clause set forth in the text (Emphasis supplied )
14 See also, Bricklayers, Masons and Plasterers' International Union of
America, Bricklayers' Local No 2 (Glenshaw Glass Co, Inc), 176 NLRH 434,
436-437, Sheet Metal Workers International Association (Burt Mfg Co.), 127
NLRB 1629, 1666-67, enfd. so far as material here, 293 F 2d 141, 149
(C A D C., 1961), cert denied 368 U S 896 (1961). Cf N LR B v. P R
Mallory & Co, 237 F 2d 437, 441-442 (C A 7, 1956) (cited by the Union),
finding that no agency relationship existed.
Wholly inapposite here are two cases, cited by the Union, where no
discharge request was ever presented to the employer United Brotherhood of
Carpenters & Joiners of America, Local Union No 515 (G E Johnson
Construction Co, Inc), 188 NLRB 832, affd 456 F.2d 1050 (C A 10, 1972);
Iron Workers Local 433, International Association of Bridge, Structural and
Ornamental Iron Workers (Riverside Steel Construction), 169 NLRB 667
i5 E g., Nelson v New Hampshire Fire Insurance Co, 263 F.2d 586 (C.A
9); Ziv Television Programs, inc v Duchatne, 191 F Supp. 27 (D C Mass),
Smith-Perry Electric Co v Transport Clearings of Los Angeles, 243 F 2d 819
(C.A 5)
16 For the reasons stated in the text, whether the oral nature of Rote's
discharge requests affected the Union 's and the Employers' rights as against
each other is immaterial here In any event , on the facts of this case, I
conclude that Rote 's conduct bound the Union vis -a-vis Owens, Inc., and
Arlington Rofe had authority to request employees' discharge for
nonmembership on the Union's behalf; and , in acceding to his discharge
requests , both employers were unquestionably benefiting the Union to their
own detriment In addition , the Union has accepted the fruits of these
employers' discharge action The Union makes no claim that it ever advised
either employer that the discharge requests should have been disregarded;
indeed , when Breton obtained a job with Arlington after Owens, Inc.,
acceded to Rote's oral discharge request . Rofe orally requested Breton's
discharge from Arlington , too. Moreover , after the discharges the Union
again advised Breton. through counsel as well as Rofe, that Breton would
have to pay a $ 175 reinstatement fee to obtain good standing membership,
which Breton was seeking solely to get and keep a job. I conclude that the
Union waived any right it may otherwise have had to disclaim Rofe's
discharge requests. 28 Am. Jur 2nd, Estoppel and Waiver, Sec 162, pp
848-849 (1966); 17 Am Jur 2nd, Contracts, Sec 393, 394, pp 838-840
(1964).
FURNITURE MOVERS LOCAL 82, TEAMSTERS 843
employers to discharge Breton for nonmembership gives
reason to anticipate that, if not restrained, it may cause
discrimination by other employers as well. Further, the
absence of evidence that the Union's action against Breton
was due to any consideration (such as personal dislike)
other than his alleged 1945 failure to obtain a withdrawal
card from Local 82 gives reason to anticipate that, if not
restrained, Respondent may exert like pressure against
nonmembers in addition to Breton. Accordingly, the cease-
and-desist order will also reach union conduct with respect
to employers other than Owens, Inc., and Arlington, and to
employees other than Breton. Sea-Land, supra, 197 NLRB
125.
In addition, I shall recommend that Respondent take
certain affirmative action necessary to effectuate the
policies of the Act. Respondent will be required to request
Owens, Inc., in writing and with a copy to Breton, that
Owens, Inc., offer reinstatement to Breton. In addition,
Respondent will be required to request Arlington, in
writing and with a copy to Breton, to afford Breton all
benefits (including but not limited to seniority rights)
which he would have had but for the break in his tenure of
employment owing to the discrimination against him. I
shall also recommend that Respondent make Breton whole
for any loss of earnings he may have suffered by reason of
the discrimination against him, by payment of a sum of
money which he normally would have earned from May
22, 1973 (the date of his discharge by Owens, Inc.), until 5
days after all the aforesaid written requests and copies
have been delivered, less net interim earnings. Backpay
shall be computed on a quarterly basis in the manner
described in F W. Woolworth Co, 90 NLRB 289, with
interest as described in Isis Plumbing & Heating Co, 138
NLRB 716. However, under this paragraph, during each
quarter Breton will be entitled to the net backpay he would
have received if he had been discharged by Owens, Inc.,
alone or by Arlington alone, whichever is the greater. Cf.
L. E. Schooley, Inc., 119 NLRB 1212, 1213-14 In addition,
Respondent will be required to post appropriate notices.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 17
Respondent Furniture and Piano Moving, Furniture
Store Drivers, Helpers, Warehousemen and Packers Local
# 82, a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, its officers,
agents, and representatives, shall:
1. Cease and desist from:
17 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Board's Rules and Regulations, be adopted by the Board and
become its findings , conclusions , and order , and all objections thereto shall
be deemed waived for all purposes
(a) Causing or attempting to cause Arlington Storage,
Inc., Henry F. Owens, Inc., or any other employer to
discharge or otherwise discriminate against Roland J.
Breton, or any other employee, in violation of Section
8(a)(3).
(b) In any like or related manner restraining or coercing
employees in the exercise of their rights under the National
Labor Relations Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Request Henry F. Owens, Inc., in writing and with a
copy to Breton, to offer reinstatement to Breton.
(b) Request Arlington Storage, Inc., in writing and with a
copy to Breton, to afford Breton all benefits ( including but
not limited to seniority rights) which he would have had
but for the break in his tenure of employment owing to the
discrimination against him.
(c) Make Breton whole for any loss of pay he may have
suffered by reason of the discrimination against him, in the
manner set forth in the section hereof entitled "The
Remedy."
(d) Preserve and, upon request, make available to the
Board or its authorized agents, for examination and
copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all
other records necessary or useful in determining compli-
ance with this Order, or computing the amount of backpay
due as herein provided.
(e) Post in conspicuous places at its business office,
meeting hall, and places where notices to members are
customarily posted, copies of the attached notice marked
"Appendix." 18 Copies of said notice, on forms to be
furnished by the Regional Director for Region 1, shall,
after being duly signed by an authorized representative of
the Respondent, be posted immediately upon receipt
thereof, and maintained by it for a period of 60 days
thereafter. Reasonable steps shall be taken by the Respon-
dent to ensure that said notices are not altered, defaced, or
covered by any material.
(f) Furnish to the Regional Director sufficient signed
copies of the aforesaid notice for posting by Arlington
Storage, Inc., and Henry F. Owens, Inc., such employers
willing, where notices to employees are customarily posted.
Copies of the said notice to be furnished by the Regional
Director, after being signed by the Respondent as
indicated, shall be returned forthwith to the Regional
Director for appropriate disposition by him.
(g) Notify the Regional Director, in writing, within 20
days from the date of this Decision, what steps the
Respondent has taken to comply herewith.
iF In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "