Teamsters Local 104 (Blue Rodeo)

National Labor Relations Board - Board Decisions

Apr 29, 1998

325 N.L.R.B. 121 (N.L.R.B. 1998)

1
325 NLRB No. 121
1 The Respondent’s response states that the ‘‘Respondent does not
generally oppose the Motion.’’ Instead, the response essentially re-
quests that the Board’s Order in this case contain narrow injunctive
language.
The General Counsel has moved to strike portions of the Respond-
ent’s responses to both the Motion for Summary Judgment and in
opposition to the General Counsel’s motion to strike. We grant the
General Counsel’s motion to strike those portions of the Respond-
ent’s submissions which allege that improper pressures were brought
to bear on the General Counsel which frustrated efforts to settle this
case. The Respondent’s assertions in this regard are immaterial to
the matter before us, the General Counsel’s Motion for Summary
Judgment based on the Respondent’s failure to file an answer to the
complaint, and the related issue of the appropriate remedy for the
Respondent’s unfair labor practices. Accordingly, we strike the first
full paragraph on p. 2 and fn. 2, of the Respondent’s response to
the Motion for Summary Judgment, and the first full paragraph on
p. 3 of the Respondent’s response in opposition to the motion to
strike. In addition, we strike in its entirety the affidavit of the Re-
spondent’s counsel attached to its response in opposition to the mo-
tion to strike. In light of our Decision and Order, however, we find
it unnecessary to pass on the remainder of the General Counsel’s
motion to strike.
2 See Maislin Transport, 274 NLRB 529 (1985).
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er-
rors so that corrections can be included in the bound volumes.
International Brotherhood of Teamsters, Local
Union 104, General Teamsters (Excluding
Mailers), State of Arizona, an affiliate of Inter-
national Brotherhood of Teamsters, AFL–CIO
(Lakeside Productions Co., d/b/a Blue Rodeo)
and (Viacom Productions) and Richard D.
Brown and Steve Wagner and Jeff Foster.
Cases 28–CB–4617, 28–CB–4679, 28–CB–4661,
and 28–CB–4668
April 29, 1998
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND BRAME
Upon charges and amended charges filed by Richard
D. Brown on September 26, December 10 and 19,
1996, and February 25, April 18, and October 2, 1997,
a charge filed by Steve Wagner on January 28, 1997,
and a charge filed by Jeff Foster on February 11, 1997,
the General Counsel of the National Labor Relations
Board issued an amended consolidated complaint
(complaint) on October 7, 1997, against International
Brotherhood of Teamsters, Local Union 104, General
Teamsters (Excluding Mailers), State of Arizona, an
affiliate of International Brotherhood of Teamsters,
AFL–CIO, the Respondent, alleging that it has violated
Section 8(b)(1)(A) and Section 8(b)(2) of the National
Labor Relations Act. Subsequently, on October 20,
1997, the Respondent filed an answer to the complaint.
On December 16, 1997, however, the Respondent
withdrew its answer.
On December 29, 1997, the General Counsel filed a
Motion for Summary Judgment with the Board. On
January 2, 1998, the Board issued an order transferring
the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. On Janu-
ary 16, 1998, the Respondent filed a response, which
does not dispute the allegations in the motion.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules
and Regulations provide that the allegations in the
complaint shall be deemed admitted if an answer is not
filed within 14 days from service of the complaint, un-
less good cause is shown. In addition, the complaint
affirmatively notes that unless an answer is filed within
14 days of service, all the allegations in the complaint
will be considered admitted. Further, the undisputed al-
legations in the Motion for Summary Judgment dis-
close that the Respondent, on December 16, 1997,
withdrew its answer to the complaint. Such a with-
drawal has the same effect as a failure to file an an-
swer, i.e., the allegations in the complaint must be con-
sidered to be admitted to be true.2
Accordingly, based on the withdrawal of the Re-
spondent’s answer to the complaint, we grant the Gen-
eral Counsel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
Lakeside Productions Co., d/b/a Blue Rodeo (Lake-
side) is and has been at all material times a California
corporation with an office and place of business in Los
Angeles, California, where it is engaged as a television
program producer. During the 12-month period ending
September 26, 1996, Lakeside, in conducting its busi-
ness operations described above, received gross reve-
nues in excess of $100,000, and purchased and re-
ceived at its facilities in the State of California goods,
materials, and supplies valued in excess of $50,000 di-
rectly from sources outside the State of California.
Viacom Productions (Viacom) is and has been at all
material times a California corporation with an office
and place of business in Hollywood, California, where
it is engaged as a television program producer. During
the 12-month period ending September 26, 1996,
Viacom, in conducting its business operations de-
scribed above, received gross revenues in excess of
$100,000, and purchased and received at its facilities
in the State of California goods, materials, and sup-
plies valued in excess of $50,000 directly from sources
outside the State of California.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We find that Lakeside and Viacom (the Employers)
are employers engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act and that
the Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times, the Respondent has maintained
and operated a hiring hall (the Drivers/Wranglers refer-
ral system) for the use of its members or persons wish-
ing to work in the motion picture and television pro-
duction industry. Under this system, these individuals
may register for referrals as applicants for employment
with the Employers, and other employers engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and, when requested by the Employers
or other employers engaged in commerce, be referred
to them pursuant to the rules, regulations, and bylaws
maintained by the Respondent pertaining to its
Drivers/Wranglers referral system. This referral system
provides, inter alia, that registrants ‘‘shall be referred
out on the same manner (I.E.) on a rotational basis—
first in-first out if qualified on open requests only.’’
Since about March 28, 1996, the Respondent has
maintained rules, regulations, and bylaws pertaining to
its Drivers/Wranglers referral system containing, inter
alia, the following provision:
Any member of the wrangler/driver craft who was
on the official list previously and became sus-
pended due to non-payment of dues, shall pay all
back dues, re-initiation fees and any strike assess-
ment benefits due and the member would be
placed on the bottom of the list (rotation).
At all times since about March 28, 1996, the Re-
spondent has enforced the rule set forth above, which
has the effect of limiting the work opportunities of
members not subject to a valid union-security agree-
ment.
Since about March 28, 1996, the Respondent has
maintained the following provision in its rules, regula-
tions, and bylaws pertaining to its Drivers/Wranglers
referral system:
Referrals are made up of drivers/wranglers as they
come into [the Respondent] and are accepted in
craft by majority vote/and [sic] register on the out
of work list.
At all times since about July 28, 1996, the Respond-
ent has applied the rule set forth above in a discrimina-
tory manner by prohibiting individuals from registering
on the Respondent’s out-of-work list for referral unless
they are a member of the Respondent and they have
been approved by a majority vote of the craft mem-
bers.
From about March 28, 1996, to about February 13,
1997, the Respondent maintained, but did not enforce,
a written rule, relating to its operation of the
Drivers/Wranglers referral system, which provides as
follows:
Drivers/wranglers who are not available for dis-
patch either for medical reasons or other valid
reasons, will retain their position for the purpose
of future dispatches. Any driver/wrangler refusing
a dispatch will be dropped to the bottom of the
existing out of work list.
On about February 13, 1997, the Respondent re-
ceived an open request from Viacom for an employee
to be referred to work on the filming of ‘‘Family
Plan.’’ In response to this request, the Respondent, on
about February 13, 1997, contacted Charging Party
Richard D. Brown, who declined the referral. On about
February 13, 1997, the Respondent enforced the rule
set forth above against Brown, notwithstanding that the
Respondent had not previously enforced this rule, and
without giving prior notice to Brown and to other indi-
viduals registered on the Respondent’s referral list. The
Respondent enforced this rule against Brown without
prior notice because Brown had engaged in intraunion
political activities and had opposed the incumbent
leadership of the Respondent.
On about January 10, 1997, Viacom and the Re-
spondent entered into a written agreement that con-
tains, in relevant part, the following provisions:
1. The Producer [Viacom] recognizes the Union
as the exclusive representative of its employees
employed in the foregoing production who work
within the classifications covered by the Union’s
jurisdiction.
2. The Producer [Viacom] will secure all local
hires within the classification covered by this
Consent Agreement from Local 104 [Respondent]
and Local 104 shall furnish competent referrals
for such jobs pursuant to the Producer’s request.
On about February 13, 1997, the Respondent re-
ceived an open request from Viacom for an employee
to be referred to work on the filming of ‘‘Family
Plan.’’ On about February 13, 1997, the Respondent,
in response to this request, failed and refused to abide
by its rules, regulations, and bylaws, and bypassed
Charging Party Jeff Foster who was duly registered on
the Respondent’s referral list and was eligible to be
dispatched to Viacom. The Respondent engaged in this
conduct because Foster filed a charge with, or gave
testimony to, the Board under the Act.
Since about March 28, 1996, the Respondent has
processed intraunion charges filed against Brown and
member Ken Mason. In addition, on about July 5,
1996, the Respondent filed intraunion charges against
members Steve Wagner and Birdie Johnson. The Re-
spondent filed these charges against Brown, Mason,
Wagner, and Johnson because the individuals did not
3TEAMSTERS LOCAL 104 (BLUE RODEO)
comply with the Respondent’s rules, regulations, and
bylaws pertaining to its Drivers/Wranglers out-of-work
referral system, notwithstanding that the Respondent
had not enforced these provisions against other simi-
larly situated employees and members. The Respond-
ent filed the aforementioned charges and enforced its
rules as set forth above because Brown, Mason, Wag-
ner, and Johnson had engaged in intraunion political
activities.
On about January 14, 1997, the Respondent threat-
ened Wagner with a defamation lawsuit because Wag-
ner participated in the investigation of Case 28–CB–
4617.
All of the Respondent’s acts and conduct described
above has caused, or was engaged in for the purpose
to cause, employers to discriminate against employees
in violation of Section 8(a)(3) of the Act.
CONCLUSION OF LAW
By the acts and conduct described above, the Re-
spondent has discriminated against users of its hiring
hall because of their union and other protected activi-
ties, and has thereby engaged in unfair labor practices
affecting commerce within the meaning of Section
8(b)(1)(A) and (2), and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act. Specifi-
cally, having found that the Respondent has maintained
exclusive hiring hall referral rules which (1) require
applicants to pay dues and fees, in the absence of a
valid union-security agreement; (2) place formerly sus-
pended members at the bottom of the referral list; (3)
require applicants to join the Respondent before they
may register on the list; and (4) require registrants to
have been approved by a majority vote of craft mem-
bers, we shall order the Respondent to rescind these
dispatch rules so as not to discriminate against appli-
cants who are not members of the Respondent or who
do not pay dues, who were formerly suspended, or
who have not been approved by a majority vote of a
craft. In addition, having found that the Respondent
discriminatorily enforced its hiring hall rules, we shall
order the Respondent to operate its exclusive hiring
hall and referral system in a nondiscriminatory manner
based on objective criteria. In this regard, we have
found that Richard Brown discriminatorily was
dropped to the bottom of the referral list because he
declined a referral on February 13, 1997. We shall
order the Respondent to place Brown in the position
on the list where he would have been absent the Re-
spondent’s discrimination against him.
Further, having found that the Respondent filed and
processed intraunion charges against members because
they engaged in internal union activities, we shall
order the Respondent to rescind the intraunion charges
filed against Richard Brown, Birdie Johnson, Ken
Mason, and Steve Wagner, to expunge all references to
these charges from its records, and to notify these indi-
viduals that this has been done. Having also found that
the Respondent discriminatorily bypassed Jeff Foster,
who was registered on the referral list, because he filed
a charge with, or gave testimony to, the Board, we
shall order the Respondent to refer Jeff Foster in a
nondiscriminatory manner as his name is reached on
the referral list, and to make him whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against him. Backpay shall be com-
puted in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
Finally, in view of the nature of the industry in-
volved in this case, and the itinerant and sporadic
working conditions of the affected employees, we shall
order the Respondent to mail copies of the attached
notice to its members and to other persons who have
registered on the Drivers/Wranglers referral list at any
time since March 28, 1996, the first date of the occur-
rence of unfair labor practices.
ORDER
The National Labor Relations Board orders that the
Respondent, International Brotherhood of Teamsters,
Local Union 104, General Teamsters (Excluding Mail-
ers), State of Arizona, an affiliate of International
Brotherhood of Teamsters, AFL–CIO, Phoenix, Ari-
zona, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Operating its Drivers/Wranglers referral system
in an arbitrary and discriminatory manner.
(b) Maintaining Drivers/Wranglers dispatch rules
which discriminate against nonmembers, those who do
not pay union dues and fees, formerly suspended mem-
bers, or those who have not been approved by a major-
ity vote of craft members.
(c) Discriminatorily enforcing a Drivers/Wranglers
dispatch rule which places on the bottom of the out-
of-work list those registrants who refuse dispatches.
(d) Bypassing employees who are duly registered on
the Drivers/Wranglers referral list because they filed
charges with, or gave testimony to, the Board.
(e) Filing and processing intraunion charges against
members because they engaged in intraunion political
activities.
(f) Threatening employees with defamation lawsuits
because they participate in the Board’s processes.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If this 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.’’
(g) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Operate its Drivers/Wranglers referral system in
a nondiscriminatory manner based on objective criteria.
(b) Rescind the portions of its Drivers/Wranglers
dispatch rules which (1) require applicants to pay
union membership dues and fees, in the absence of a
valid union-security agreement; (2) require applicants
to join the Respondent before they may register on the
out-of-work list; (3) place formerly suspended mem-
bers at the bottom of the out-of-work list; and (4) re-
quire registrants to have been approved by a majority
vote of craft members.
(c) Rescind the intraunion charges filed against
Richard Brown, Birdie Johnson, Ken Mason, and Steve
Wagner, expunge all references to those charges from
the Respondent’s records, and notify them in writing
that this action has been taken.
(d) Refer Jeff Foster in a nondiscriminatory manner
as his name is reached on the out-of-work list, and
make him whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against him, as set forth in the remedy section of this
decision.
(e) Reinstate Richard Brown to the position on the
referral list where he would have been absent the Re-
spondent’s discriminatory action in dropping him to
the bottom of the referral list because he declined a re-
ferral on February 13, 1997.
(f) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(g) Within 14 days after service by the Region, post
at its business offices and meeting places, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the
notice, on forms provided by the Regional Director for
Region 28, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to members are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced or covered by any other
material. The Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all members
and other individuals who have been registered on the
Drivers/Wranglers referral list maintained and adminis-
tered by the Respondent at any time since March 28,
1996.
(h) Furnish the Regional Director for Region 28
signed copies of the notice for posting by Lakeside
Productions Co., d/b/a Blue Rodeo, and Viacom Pro-
ductions, if willing, in places where notices to employ-
ees are customarily posted.
(i) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. April 29, 1998
llllllllllllllllll
Wilma B. Liebman, Member
llllllllllllllllll
Peter J. Hurtgen, Member
llllllllllllllllll
J. Robert Brame III, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT operate our Drivers/Wranglers referral
system in an arbitrary and discriminatory manner.
WE WILL NOT maintain Drivers/Wranglers dispatch
rules which discriminate against nonmembers, those
who do not pay union dues and fees, formerly sus-
pended members, or those who have not been ap-
proved by a majority vote of craft members.
WE WILL NOT discriminatorily enforce a
Drivers/Wranglers dispatch rule which places on the
bottom of the out-of-work list those registrants who
refuse dispatches.
WE WILL NOT bypass employees who are duly reg-
istered on the Drivers/Wranglers referral list because
they filed charges with, or gave testimony to, the Na-
tional Labor Relations Board.
WE WILL NOT file and process intraunion charges
against members because they engaged in intraunion
political activities.
5TEAMSTERS LOCAL 104 (BLUE RODEO)
WE WILL NOT threaten employees with defamation
lawsuits because they participate in the National Labor
Relations Board’s processes.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL operate our Drivers/Wranglers referral sys-
tem in a nondiscriminatory manner based on objective
criteria.
WE WILL rescind the portions of our
Drivers/Wranglers dispatch rules which (1) require ap-
plicants to pay union membership dues and fees, in the
absence of a valid union-security agreement; (2) re-
quire applicants to become union members before they
may register on the out-of-work list; (3) place formerly
suspended members at the bottom of the out-of-work
list; and (4) require registrants to have been approved
by a majority vote of craft members.
WE WILL rescind the intraunion charges filed against
Richard Brown, Birdie Johnson, Ken Mason, and Steve
Wagner, and WE WILL expunge all references to those
charges from our records, and notify them in writing
that this action has been taken.
WE WILL refer Jeff Foster in a nondiscriminatory
manner as his name is reached on the out-of-work list,
and WE WILL make him whole for any loss of earnings
and other benefits suffered as a result of the discrimi-
nation against him, with interest.
WE WILL reinstate Richard Brown to the position on
the referral list where he would have been absent our
discriminatory action in dropping him to the bottom of
the referral list because he declined a referral on Feb-
ruary 13, 1997.
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL UNION 104, GEN-
ERAL TEAMSTERS (EXCLUDING MAIL-
ERS), STATE OF ARIZONA, AN AFFILIATE
OF INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, AFL–CIO