General Drivers and Helpers, Local 229

National Labor Relations Board - Board Decisions

Sep 14, 1970

185 N.L.R.B. 631 (N.L.R.B. 1970)

GENERAL DRIVERS AND HELPERS , LOCAL 229
General Drivers and Helpers Local Union No. 229,
affiliated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen And Helpers of
America (Associated Transport , Inc.) and Bernard
Russell and Michael Homa . Case 4-CB-1588
September 14, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On April 21, 1970, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled proceed-
ing, finding that Respondent had not engaged in
the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General Counsel
and the, Charging Parties filed exceptions to the Trial
Examiner's Decision and supporting briefs. Respond-
ent filed briefs in support of the Trial Examiner's
Decision and in -answer to the exceptions of the
other parties.
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 this case to a three-member
panel.
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 here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts
the Trial Examiner's findings, conclusions, and recom-
mendations as modified herein.'
The Trial Examiner found, and we agree, that
Teamsters Local 229, the bargaining agent for the
employees at the Employer's Scranton, Pennsylvania,
terminal, did not violate Section 8(b)(2) and (1)(A)
of the Act by its conduct in causing the Employer
in October 1968 to move Michael Homa and Bernard
Russell, two "Binghamton men,"2 to a lower position
on the Scranton seniority roster. In so finding, the
Trial Examiner held that Teamsters Local 229 was
' We disavow the Trial Examiner's statement that there seemed to
be a studied effort by the General Counsel and Respondent to suppress
evidence at the hearing
' Their employment at the Employer' s Binghamton , New York, terminal
ceased when the Company closed that facility in January 1964 Although
they were thereafter employed at the Employer's Scranton terminal,
they continued their residence in the Binghamton area and retained
their membership in Teamsters Local 693 which had jurisdiction over
the latter area
631
not motivated by a desire to penalize the "Binghamton
men" because they belonged to Teamsters Local 693
and that employee residence constituted a legally
permissible basis for giving preference to the Scranton
terminal employees represented by TeamstersLocal 229.
The General Counsel and the Employer contend
that residence could not have been a factor in deter-
mining an employee's position on the seniority list
because there was no adverse effect on the seniority
of those employees' on the list whose telephone num-
ber indicates that they resided outside the Scranton
area. Even if it is assumed that some employees
on the list did live outside the Scranton area, this
would have no bearing on the outcome in the instant
case as we find, for reasons which follow, that Team-
sters Local 229 had a legally permissible basis other
than residence for its conduct with respect to Homa
and Russell.
The record shows that under the Central Pennsylva-
nia Motor Freight Agreement Teamsters Local 229
has been for a number of years the representative
of the employees at the Employer's Scranton terminal.
Although the Trial Examiner correctly observed that
from "first to last" all reference to Homa and Russell
was in terms of their being "Binghamton men," we
find that this geographic designation was a convenient
way of identifying employees who were transferred
from the Binghamton unit which was represented
by Teamsters Local 693. As the "Binghamton men"
constituted additions to the Employer's Scranton unit,
it is clear that the reduction in their seniority and
the employment preference granted to members of
Teamsters Local 229 were prompted not by their
Binghamton residence but rather by the desire to
protect the integrity of the unit of Scranton terminal
employees.
It is settled that a bargaining representative for
the employees of a particular unit has the right to
give an inferior seniority ranking to employees trans-
ferred from another unit.' Where, as here, a labor
organization takes a position upon noncapricious and
nonarbitrary considerations with respect to the seniori-
ty of two sets of employees, there is not statutory
bar against placing one set at a disadvantage because
they were transferred from another unit.'
Accordingly, as the evidence establishes that the
change in the seniority rights of Homa and Russell
resulted, not from an arbitrary discrimination based
on their membership in Teamsters Local 693, but
from the need to protect the integrity of the Scranton
' Other than Homa and Russell
4 Schick v N L R B, 409 F 2d 395 (C A 7) Ford Motor Company v
Yuffmann, 345 U S 330
5 Simon Levi Company, Lid, Sterling Liquor Distributors, Inc , 181
NLRB No 124, Humphreyv Moore, 375 US 335
185 NLRB No. 84
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terminal unit represented by Teamsters Local 229,
we find that that latter's conduct did not violate
the Act. We shall therefore order the dismissal of
the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts the Trial Examiner's Recommend-
ed Order and orders that the complaint herein, be,
and it hereby is, dismissed in its entirety.
MEMBER BROWN , concurring:
I concur in the result.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner. A hearing in the
above-entitled proceeding was held before the duly designat-
ed Trial Examiner at Scranton, Pennsylvania, on February
24 and 25, 1970, on complaint of the General Counsel
against General Drivers and Helpers Local Union No.
229, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein
called the Respondent, or Local 229. The charge was filed
on March 25, 1969, and the complaint issued on December
15, 1969. At issue is whether Local 229 caused Associated
Transport, Inc., herein called the Company or the Employer,
to discriminate against certain of its employees in a manner
that constituted a violation of Section 8(b)(2) of the Act.
Briefs were filed by all parties
Upon the entire record and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Associated Transport, Inc., a Delaware corporation, is
engaged in over-the-road (long haul) and intracity (local
cartage) truck transfer of freight in a number of States.
Among its locations it operates terminals in Binghamton,
New York, and Scranton , Pennsylvania . Its gross receipts
for freight transportation in interstate commerce totals many
millions of dollars in a single year . I find that the Company
is engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act to exercise
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Respondent, Local 229, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issue
The single event which gave rise to this proceeding
occurred at the Company's Scranton , Pennsylvania , termi-
nal, also called the Dunmoor terminal , late in October
1968. Among the 150 or so employees then working at
that terminal , 6 were known as the Binghamton men;
this was because they lived in Binghamton , a city 60
miles away in New York State, and had for many years
worked at this same Company's Binghamton terminal. The
Respondent , Teamsters Local 229, bargaining agent for
the Scranton terminal men , caused the Company to move
the Binghamton men to a lower position on the seniority
roster than they had enjoyed for 4 years, with consequent
substantial loss of earnings to them . In conclusionary lan-
guage the complaint alleges this conduct by Local 229
caused the Transport Company to violate Section 8(a)(3)
of the Act with respect to the Binghamton men, and
therefore constituted a violation of Section 8(b)(2) by the
Local . It also charges the Respondent with having unlawful-
ly coerced these men within the meaning of Section
8(b)(1)(A), but it seems clear , from a reading of the com-
plaint, that this last allegation is intended as suggesting
a derivative violation flowing from the violation of Section
8(b)(2).
At the hearing the question arose: Why did Local 229
want the Binghamton men placed lower on the seniority
roster? The matter of geography was obvious all over the
record as it was being made ; these men had always lived,
and still live, in Binghamton . They also long had been,
and remain , members of Teamsters Local 693 of Bingham-
ton; they never did join the Scranton Local 229. On this
critical point as to the reason , or the motivation, or the
necessary effect of the Respondent Union's conduct, the
complaint says only it "was based on arbitrary, discriminato-
ry, and bad faith considerations " Absent other evidence
to prove an unfair labor practice , the fact of discrimination
in employment-conceded in this case-proves too little
in this proceeding . See Radio Officers' v. N.L.R. B., 347
U.S. 17. The other two phrases-arbitrary and bad faith-
being illusive and nebulous, the General Counsel was asked
to state his contention as to the Respondent 's basic purpose,
what it sought to achieve by its action . He equivocated,
and stated no definitive objective . In his brief the basic
contention is changed , no reference at all is made to the
fact of Local 229 having caused the Employer to do anything,
and the issue is said to consist only of the question whether
the Respondent Union acted fairly towards all the employees
covered by its contract at the Scranton terminal
The Respondent offered no explanation of why it took
steps to have the seniority status of the Binghamton men
lowered. Indeed , its administrative officer , over whose signa-
ture the Union's demand was made upon the Company
in 1968, insisted he had no idea why all this was done.
And the Respondent 's counsel , who represented Local 229
also at the time of the events, refused to stipulate to
the authenticity of his own signature, when , as attorney
of record in a District Court civil suit, he signed a settlement
agreement on behalf of Local 229. But there is no duty
GENERAL DRIVERS AND HELPERS, LOCAL 229 633
upon a respondent to come forth with facts requisite to
round out the case for the prosecution ; that is, there is
no duty to go forward unless there be a presumption that
because a union did it, it follows the act was illegal,
and that concept was long ago swept away. Local 357,
Teamsters v. N.L.R.B., 365 U.S. 667. The burden rests
essentially upon the General Counsel, and it is an affirmative
one: Does the preponderance of the substantial evidence
on the record as a whole prove the conclusionary allegation
of the complaint? Glen Raven Silk Mills, Inc v. N.L.R.B.,
203 F.2d 946 (C.A. 4). In an analogous situation , a Trial
Examiner , in the absence of supporting evidence, equated
"local men" with local union men, and the Board rejected
his inference as unwarranted . Bricklayers, Masons and Plas-
terers'International Union, Local 2, 135 NLRB 323.
The Facts
The essential facts are not in dispute . Before 1964, Associ-
ated Transport for some years operated terminals in both
Binghamton and Scranton; there are many other terminals
in other cities, but how far away they are and what driving
is done elsewhere was not disclosed Teamster Local 693
operates in Binghamton and represented those employees,
Teamster Local 229 operates in Scranton and is bargaining
agent for that terminal . On January 31, 1964 , the Company
closed the Binghamton terminal . Some of the work previous-
ly performed there-dock work , intracity peddling delivery,
and over-the-road haulage-was transferred to Scranton,
how much of the work was moved, again no one bothered
to prove.
Michael Homa and Bernard Russell were drivers out
of Binghamton , their seniority of employment with the
Company going back to 1939 and 1948 respectively. They
were given layoff slips, paid their vacation money, and,
apparently , simply released outright . There is indication
this is what happened to all the Binghamton employees.
They were offered work in and out of Scranton , but with
seniority positions at the bottom of the seniority list for
that terminal. What with the distance from their homes-
50 or 60 miles , the uncertainties of employment-it was
a when-and-if, on-call situation for them , and the calls
coming only for a day or two of work each week, in
the lesser paying jobs at that , they found the offer undesira-
ble. There were then over 150 men higher than they on
the seniority list. Russell never accepted any of these calls,
and Homa only came twice and then found work elsewhere.
Local 693 took an interest in the Binghamton men,
while Local 229 preferred to have the Scranton men continue
to enjoy their preferred status on the Scranton seniority
list, what the Company then thought of all this does not
appear . In any event , there was an arbitration proceeding
over the matter . Both the Unions and the Company submit-
ted the question to the Eastern Conference Joint Area
Committee , of the Teamsters International Union in Wash-
ington , by written agreement on July 30 , 1964; the parties
agreed to be bound by the decision of this committee.
The decision reads as follows:
The Panel in executive session , a motion was made,
seconded and passed that as of February 1, 1964,
the employees of Associated Transport at the Bingham-
ton, N.Y. terminal, whose work was transferred to
the Associated terminal in Scranton , Pa. shall be trans-
ferred under Article 5, Sec 8(c)2 of the Central Pa.
Local Motor Freight Agreement . Thus, for example,
if 10 new jobs were created in Scranton by the transfer
of work from Binghamton to Scranton , then 10 Bing-
hamton employees shall be given the right to transfer
and their seniority shall be dovetailed with seniority
of the employees in Scranton
In August the Company implemented the decision and
dovetailed 11 Binghamton men into the Scranton seniority
list; apparently this was the number of openings warranted
by the amount of work transferred from one terminal
to another and the number of men who then wished to
go to work in Scranton . Russell moved up to position
number 14 and Homa to position number 5 . They worked
regularly out of these slots into the fall of 1968 Neither
of them ever changed his residence from Binghamton.
Local 229 and the Scranton employees never accepted
the arbitration decision in principle On September 28,
1964, the Local appealed the decision to the International
Union 's General Executive Board , but the appeal was denied
on the grounds that the matter was one of "collective
bargaining ." On October 28, 1964, the Local requested
formal review and reversal of the decision , but the Commit-
tee ruled there was no new evidence and reaffirmed its
earlier decision.
And on March 16, 1965 , a number of Scranton employees
brought suit in the United States District Court, Middle
District of Pennsylvania , to force rearrangement of their
seniority list so as to place the Binghamton employees
lower down , in effect to ignore their prior employment
with the Company at the Binghamton terminal . The plain-
tiffs identified themselves as "Michael Fiore, Louis Morrell,
Joseph Katchmar, Joseph Yanora, Edward Guidutis, on
behalf of themselves, and behalf of all persons similarly
situated who are presently members of Scranton , Pa., Local
No. 229 of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, who
are members of the same and employees of Associated
Transport, Inc., on January 31, 1964." The named defend-
ants were : Associated Transport, Inc., General Drivers and
Helpers Local Union No. 229 , the International Brotherhood
of Teamsters , and the Eastern Conference Joint Area Com-
mittee.
There seemed to be a studied effort throughout the
hearing , by both the General Counsel and the Respondent,
to suppress any evidence as to what happened in the course
of that litigation in the civil suit during the following
3 years There is nothing to indicate the merits of the
complaint were ever passed upon by that Court. On October
23, 1968, four of the litigants, all but the Eastern Conference
of Teamsters , signed a stipulation and agreement, reading
as follows:
That the General Drivers & Helpers Local Union
No. 229 of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America,
through its business agent , shall notify Associated
Transport, Inc. of the rearrangement as of October
4, 1969 seniority list for the Scranton terminal , whereby
approximately six men known as "Binghamton men"
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are to be rearranged on the seniority list for October
4, 1968 in consecutive order immediately junior to
J. Mecca , No. 138, clerk [clock] No. 55683.
In keeping with the stipulation Local 229 wrote the
following to the Company on October 24, 1968.
In accordance with the understanding and agreement
arrived at by and between all parties involved , through
the four (4) Attorneys, this is to officially notify you
that re-arrangement of the current seniority list for
the Scranton Terminal shall be made , whereby approxi-
mately six (6) men known as "Binghamton men" are
to be re-arranged on the seniority list as soon as
possible in consecutive order immediately junior to
J. Mecca , No. 138, Clock No. 55683.
The Company posted this letter as a notice to all employ-
ees at the Scranton terminal , and on November 1 gave
it full effect. It appears that by this time only 6 of the
original 11 Binghamton men remained at Scranton; all
6 were placed in much lower positions on the seniority
roster . In consequence both Homa and Russell could only
obtain and in fact thereafter performed only dock work,
employment which brought them about $50 per week less
in wages than they had long been earning . It was they
who brought the charges and their loss of earnings is
said to have been unlawfully coerced by Local 229.'
Analysis and Conclusion
The critical question of fact upon which the final answer
to the case must rest will be better understood if first
certain minor questions be resolved . In the trucking business
in America , with the Teamsters Union so widely in the
picture, senionty is the lifeblood of wages. The man who
has been longest in the company 's employ gets first choice
of runs , or first call to whatever work is available in
the ebb and tide of the amount of trucking to be done.
The last person to come on the job must be satisfied
with the less desirable assignments , or, from time to time,
with no work at all, if the more senior men have taken
it all. The Binghamton men, in 1964 , wanted to be credited,
in Scranton , with all the years they had worked for Associat-
ed Transport , albeit it had been performed elsewhere. But
of the 150 men then working in Scranton , only about
5 had seniority dates earlier than that of Homa, and only
about 12 earlier than that of Russell . This meant that
with Russell and Homa so dovetailed into the seniority
roster , all the Scranton men below them suffered to the
extent of having lower pay, or lesser quantity of, available
work . As a group the Scranton employees wanted Homa
and Russell , indeed all the Binghamton men, to go to
the bottom of their list , as though they were just then
starting to work for this Company . This is the heart of
the dispute which separated the Scranton men from the
Binghamton men starting in February of 1964 , when Bing-
hamton was closed , and reaching into the day in 1969
when Homa and Russell filed their charge with the Board.
' A third Binghamton man, Hankey , was also originally named in
the complaint as having suffered the same discrimination , but his name
was withdrawn from the case on motion of his attorney , with approval
of the General Counsel
From February to August of 1964 , the Scranton men
won; from the day of the arbitration committee decision
late in 1964 to October of 1968 the Binghamton men
had it their way; and from November of 1968 to about
a year later when a new terminal was opened in Binghamton
and Homa and Russell went back home to work, the
pendulum was back in its old position.
Counsel for the Respondent hinted at a number of defenses
during the hearing but did not exactly articulate them.
One is that it was not Local 229 at all that did this
to Homa and Russell , but the employees, and that therefore
there can be no unfair labor practice finding against the
"labor organization or its agents ." The proof here is said
to be the fact Local 229 was named a formal defendant
in the civil suit . But if all the members together , literally
acting in concert in matters affecting conditions of employ-
ment , are not "the" union , who is the union? There can
be no question on this record but that the aim which
the Scranton employees as a group sought to achieve was
exactly the one on which Local 229 never gave up. It
was Local 229 , in its own name , which twice tried to
win reversal of the Eastern Conference arbitration decision.
It was a play on words for the nominal plaintiffs in court
to have named their own union a defendant , for both .
wanted the relief requested in the complaint . And when
3 years later , Local 229 ostensibly "settled" with its own
members, it was agreeing to precisely what it had been
insisting was right all along. This was union pressure on
Associated Transport . In the context of the total picture
there is no reason for not crediting the uncontradicted
testimony of Homa that when told he was to be relegated
virtually to the bottom of the seniority list, he asked Mr.
Birtel , the manager of the Scranton terminal , why, and
was told "the company didn 't have- anything to do with
it . . . the union told him [Mr . Birtel] that I was to
be put back behind Mecca "
Another contention is that this whole question has been
adjudicated in the District Court and may not be reopened
in a Board proceeding. The argument fails for a number
of reasons , foremost of which is that there never was
a decision on the merits of any issue in the Court. The
District Judge signed the settlement agreement as
"approved" by him, but he may as well have been giving
his blessing to the end of protracted litigation, and a plague
on both your houses, as passing judgment . In any event,
there was no judicial determination . But even if there
had been , the question which Local 229 was raising was:
Where, on the Scranton seniority roster , should Homa
and Russell be placed? This is not the question in this
proceeding , where the issue is whether the conduct of
Local 229, however it chose to "cause" the employer,
constituted a violation of the Taft -Hartley Act . This matter
did not , and could not concern the District Court. And
finally, the Respondent also argues Homa and Russell
should have intervened in the civil suit , should have
appealed-how and where does the stranger to a Federal
Court suit appeal for reversal of an amicable agreement
of the parties-or done something other than file charges
with the Board. The argument merits no answer; failure
by the employee victim of an unfair labor practice to
GENERAL DRIVERS AND HELPERS , LOCAL 229
stay the hand of the wrongdoer , could hardly serve as
defense for the respondent.
Turning to the contentions of the General Counsel in
support of the complaint , one is that it was unlawful
of Local 229 to refuse to abide by the arbitration decision
of 1964 . The Respondent had committed itself in writing
to hold still if the question were resolved against it; it
did so for 4 years , but when it reneged on its agreement,
and compelled the Company to do otherwise-pure econom-
ic discrimination against Homa and Russell-it acted in
bad faith ; this is said to be arbitrary conduct , not a nice
thing to do, quite like a contract violation . The position
is not unlike that taken by John Durkin , the business
manager of Local 229. He said the reason why Local
229 acted the way it did was because a lawyer had told
it to do so. The General Counsel says the reason why
the Union 's act was wrong is because somebody else said
it was wrong to do it . But both statements beg the real
question-which is why did the Union do it.
The General Counsel 's argument here is no different
than saying that the question of Homa's and Russell's
correct position on the seniority list had been agreed between
the Union and the employer , quite as though the arbitration
decision was a part of the collective -bargaining agreement,
and that the unfair labor practice is seen in the Union's
refusal to abide by the contract . This contention must
fail also. It is a long established principle of Board law
that violations of the contract by the employer do not
constitute unfair labor practices under this statute "The
Board is not the proper forum for parties seeking to remedy
an alleged breach of contract or to obtain specific perform-
ance of its terms ." United Telephone Co. of the West,
112 NLRB 779. See also National Dairy Products Corp.,
126 NLRB 434; Hydes ' Super Market, 145 NLRB 1252
Had Associated Transport done this , of itself dropped the
Binghamton men to the bottom of the list in violation
of the "agreement ," if agreement the arbitration decision
was, it would not have been unlawful under Section 8(a)(3)
of the Act But the law is no less clear , in the language
of the Statute , that for conduct by a labor organization
to constitute a violation of Section 8(b)(2), that which
it caused the employer to do must constitute a violation
of Section 8(a)(3). "It shall be an unfair labor practice
for a labor organization or its agents . . . to cause or
attempt to cause an employer to discriminate against an
employee in violation of Section (a)(3) " It follows
in this case , if the assertion be-as the General Counsel
suggests-that Local 229 did wrong by violating the agree-
ment , or caused the employer to violate the agreement,
that no misconduct cognizable by the Board occurred. _
But an employer may nevertheless violate this statute,
regardless of contract terms, when it prejudices a man
by lowering him on the seniority lists, if its purpose is
one prohibited by law . If Associated Transport wanted
to build up the membership of Local 229 , if it simply
wanted members of that distant Local 693 out of its plant
altogether , and made Homa and Russell's working condi-
tions intolerable to achieve that end , the fact that it thereby
also violated the contract would not save it at all. This
would be coercion literally "to encourage or discourage
membership in any labor organization ," and a direct viola-
635
tion of Section 8(a)(3). By like reasoning , if Local 229
caused the Company to do this to force Homa and Russell
into its membership , or because they were not already
members its conduct in causing the unlawful discrimination
would be prohibited by Section 8(b)(2).
And this makes clear the real issue of the case: Why
did Local 229 put pressure upon the Company to alter
the seniority list? In the light of all the relevant evidence,
I find that the reason was because Homa and Russell,
as well as the other men then in their position, lived
in the other city; were not residents of the Scranton area.
The Board has held that for a union to cause a preferential
arrangement of work assignments on this ground is not
unlawful , and I shall therefore recommend dismissal of the
complaint. In Local No 98, Operating Engineers, 155
NLRB 850, it was a matter of preference for Greenfield
area men as against " Boston men ," and the Board
dismissed the complaint . In Union No. 28. Bricklayers,
Masons and Plasterers International , 134 NLRB 751, out-
of-town men were released before " Erie men ," and the
Board held that the fact all the Erie men were members of
the respondent local of itself was not enough to supply the
necessary affirmative proof that the purpose in the
discrimination was to weed out nonmembers . From first to
last all reference to Homa and Russell , and the others who
came to Scranton with them , was in terms of "the
Binghamton men." This is how they were identified in the
1964 arbitration decision , in the civil suit brought in 1965,
in the settlement agreement among the lawyers at the end of
that litigation , and in the Respondent ' s written request to
the Company which directly lead to the changes of seniority
status. There is no evidence worthy of note that the question
of membership in one local or the other was a subject of
discussion at any point . It is true Local 229 did not invite
the Binghamton men to join, as it could have under the
Scranton contract , but both Homa and Russell conceded
they did not attempt to change their membership from
Local 693 to Local 229 . Everything points to the fact it was
their non -residence in the area that the Respondent Union
deemed of importance. It is only in the caption of the
District Court suit that the Scranton drivers identified
themselves as "members " of Local 229, but in the light of
the total evidence this must be considered no more than a
convenient descriptive phrase , certainly insufficient to offset
the affirmative proof of geographic concern I am unable to
distinguish this case from the precedent decisions.
It is not "obvious," as the General Counsel would have
it, that " lack of membership in Local 229" was a motivating
cause in that union 's action, for in that event in would
have been a simple matter to demand their total dismissal
under the union-shop clause of the contract . The Respondent
did not do this. And it is a bootstrap argument to say
that their failure to apply for membership proves that
Local 229 would have rejected their application. There
is nothing in the Scranton contract covering the seniority
rights of out-of-town employees , and it cannot be said
that the decision of Local 229 was not "based on objective
factors which would persuade a rational decision maker."
Nor does the Respondent 's action become "arbitrary,"
"capricious," "unfair ," because it placed the Binghamton
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men below even those Scranton employees who came to CONCLUSION OF LAW
work at that location after Homa and Russell started coming
from another city. They too, the recently arrived Scranton The Union has not engaged in the unfair labor practices
residents , fell into the geographic category which may justifi - alleged in the complaint
ably be set apart from out-of-staters, or out-of-towners.
If, as the Board has held , a geographic distinction is a RECOMMENDED ORDER
permissible basis for preference in employment, the length
of service of some in the group is an irrelevant consideration The complaint herein should be, and hereby is, dismissed.