Teamsters Local 688 Insurance & Welfare Fund

National Labor Relations Board - Board Decisions

Jul 11, 1990

298 N.L.R.B. 1085 (N.L.R.B. 1990)

TEAMSTERS LOCAL 688 INSURANCE & WELFARE FUND
Teamsters Local 688 Insurance and Welfare Fund
and Carolyn S. Robinson
Teamsters Local Union No. 688 , affiliated with the
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America,
AFL-CIO and Carolyn S. Robinson . Cases 14-
CA-20222 and 14-CB-7183
July 11, 1990
DECISION AND ORDER
BY MEMBERS CRACRAIrr, DEVANEY, AND
OvIATT
On December 29, 1989, Administrative Law
Judge Frank H. Itkin issued the attached decision.
The Respondents filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below.
A. The Respondent, Teamsters Local 688 Insur-
ance and Welfare Fund, St. Louis, Missouri, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
"(b) Maintaining or giving any force or effect to
any collective- bargaining agreement, oral or writ-
ten, with the Union, provided however, that noth-
ing contained herein shall be construed as requiring
the Respondent to abandon or vary any wages,
hours, seniority, or other substantive terms of em-
ployment which it may have established in the per-
formance of the contract."
2. Substitute the attached notice (Appendix A)
for that of the administrative law judge.
B. The Respondent, Teamsters Local No. 688,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL-CIO, St. Louis, Missouri, its of-
ficers, agents, and representatives, shall take the
action set forth in the Order.
' The judge 's recommended Order and notice is modified to conform
to the Board's decision in Presbyterian Community Hospital, 230 NLRB
599 (1977).
APPENDIX A
1085
NOTICE To EMPLOYEES
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 have violated the National Labor Relations
Act and has ordered us to post and abide by this
notice.
WE WILL NOT recognize Teamsters Local Union
No. 688, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO as the exclusive
bargaining agent of our employees unless and until
the National Labor Relations Board shall certify
the Union as such representative.
WE WILL NOT maintain or give any force or
effect to any collective-bargaining agreement, oral
or written, with the Union, provided, however,
that nothing contained herein shall be construed as
requiring us to abandon or ' vary any wage, hour,
seniority, or other substantive terms of employment
which we may have established in the performance
of the contract.
WE WILL NOT encourage membership in the
Union or any other labor organization by condi-
tioning the hire or tenure of employment or any
term or condition of employment of any of our em-
ployees on membership in, or dues payment to, any
such labor organization, except as authorized by
Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed to them in
Section 7 of the Act.
WE WILL withdraw and withhold all recognition
from the Union as the exclusive bargaining agent
of our employees unless and until the Board shall
certify the Union as such representative.
WE WILL jointly and severally with the Union
reimburse our employees, former and present, for
all dues and assessments and fees exacted from
them by or on behalf of the Union within the 6-
month limitation period of Section 10(b) of the
Act, with interest as provided in the Board's Deci-
sion.
TEAMSTERS LOCAL 688 INSURANCE
AND WELFARE FUND
Stephen D. Smith, Esq., for the General Counsel.
Clyde E. Craig, Esq., for the Respondent.
298 NLRB No. 165
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
FRANK H. ITKIN, Administrative Law Judge. Unfair
labor practice charges were filed in the above consolidat-
ed cases on July 31 and amended on September 7, 1989.
A consolidated complaint issued on September 7, 1989.
A hearing was held in St. Louis, Missouri, on November
6, 1989. The complaint was amended at the hearing. In
brief, the General Counsel argues that Respondent Union
and Respondent Fund have violated Section 8(b)(1)(A)
and (2) and Section 8(a)(1), (2), and (3) of the National
Labor Relations Act, respectively, by maintaining and
enforcing a collective-bargaining agreement containing
union-security and dues-checkoff provisions when the
Union was disqualified from acting as representative of
the Fund's employees as a result of a conflict of interest.
In particular, as General Counsel explains, "the Union
has sought to function as the bargaining representative
for employees of the Employer [Fund] when officers and
agents of the Union exerted substantial control over the
day-to-day operations of the Employer in regard to per-
sonnel and labor relations matters." Counsel for Re-
spondents denies violating the Act as alleged and asserts
that "there is no reason why Respondent Union should
be disqualified from representing the employees of Re-
spondent Fund whom it has represented effectively and
well for more than 30 years."
On the entire record in this case, including my obser-
vation of the demeanor of the witnesses I make the fol-
lowing
FINDINGS OF FACT
The jurisdictional allegations of the consolidated com-
plaint are admitted and the evidence of record is essen-
tially undisputed.' The Employer Fund was established
in order to provide insurance and welfare benefits and
recreational activities for the health and well-being of
employee union members and their families. The Fund
has an Insurance and Welfare Fund Camp in Peverly
and an In Town Facility in St. Louis, Missouri. The Pe-
verly Camp contains recreational facilities and offices.
The St. Louis In Town Facility contains physical ther-
apy and recreational facilities and offices. The St. Louis
In Town Facility's physical therapy and recreational op-
erations are located on the first floor of 300 South Grand
and the offices are located on the second floor of an ad-
jacent building. The Union also has its offices on the
second floor of this same building. The Fund employs
some 75 unit employees at its Peverly Camp and some 13
unit employees at its St. Louis In Town Facility.
The Fund is subject to the control of two trustees,
Ron Gamache and Dennis Duker. Gamache was ap-
pointed trustee by the Union's executive board. Duker
was elected by the participating contracting employers.
Gamache, as discussed below, is also the secretary-treas-
urer and chief executive officer of the Union. Donna
Steininger is the Union's business agent responsible for
' General Counsel called Charging Party Carolyn Suzie Robertson
(Newkirk) and Ron Gamache as his witnesses . Respondents presented no
additional evidence.
administering the Union's collective-bargaining agree-
ment covering the unit Fund employees. Steininger's
office is located at 300 South Grand, a few doors from
the office of Gamache.
The Fund and the Union have maintained a collective-
bargaining relationship for over 30 years. Their most
recent collective-bargaining agreement is effective from
April 15, 1987, through April 14, 1990 (see G.C. Exh. 2).
The agreement provides that the Union "shall be repre-
sented by employee shop stewards" whose duties include
the investigation and presentation of grievances. As
Union Secretary-Treasurer and Fund Trustee Gamache
testified that grievances are in practice processed by
Business Agent Steininger. Steininger meets with Fund
supervisors to resolve disputes. Gamache was asked,
"what if it [the dispute] is not resolved between the busi-
ness agent and the supervisor," and he responded: "We
haven't had any such disagreements. I can't tell you." In
fact, the agreement provides that unresolved grievances
may be submitted to a two-man adjustment board with
the Union and Fund each designating a member, and
then to a grievance committee consisting of a Fund and
union representative and a third person designated by the
union secretary-treasurer. This latter determination
would be final and binding upon the Union (see G.C.
Exh. 2, pp. 8-9).2
The current collective-bargaining agreement was ne-
gotiated in 1987. Charging Party Carolyn Suzie Robert-
son (Newkirk) testified that she was employed by the
Fund when the current contract was negotiated; that
Levi Sanford was the Union's business representative at
the time; that Sanford then indicated to her that he was
negotiating with Paul Akers who was apparently negoti-
ating on behalf of the Fund; and that Akers in fact was
also the Union's president. Robertson added: "[a]ll I
know is that Mr. Akers said whatever was going to be
settled, he had to okay it." Union secretary-treasurer and
Fund Trustee Gamache testified that Sanford was union
business representative in 1987; that he was uncertain
whether or not Union President Akers negotiated the
1987 contract on behalf of the Fund "I don't know"; and
that he was also uncertain whether Sanford' negotiated
the agreement on behalf of the Union.
The General Counsel offered the testimony of Charg-
ing Party Robertson to demonstrate the control of Union
Secretary-Treasurer and Fund Trustee Gamache over
labor relations and personnel matters for Fund employ-
ees. Thus, Robertson, a Fund employee, was injured in
October 1988; she attempted to return to work in Febru-
ary 1989; she spoke to Peverly Camp Supervisor Jim
Snell who was pleased that she was returning to work;
she later received a telephone call from Fund accountant
Janet West who apprised her that Gamache would not
accept the doctor's release presented by Robertson and
had instructed West to tell Robertson that she could not
2 The collective-bargaining agreement also contains union dues-check-
off and union-security provisions which admittedly have been applied
and enforced. See Tr. 50 and G.C. Exh. 2, pp. 4-6 The agreement fur-
ther provides that the Fund as an employer make contributions to the
Teamsters pension funds, health institute, savings and life insurance plan,
and the Fund itself. See G.C. Exh 2, p. 21.
TEAMSTERS LOCAL 688 INSURANCE, & WELFARE FUND
work until she obtained a proper medical release; she
later presented a ,letter from her doctor to West who ad-
vised her that she would speak to Gamache; Snell also
indicated that he too would talk to Gamache about her
return to work; and she later spoke directly to Gamache
about the type of medical release necessary to return to
work. Gamache, during his conversation with Robertson,
mistakenly thought that Robertson was a laid-off em-
ployee, and said that "he could not have me [Robertson]
working for a Fund that didn't need that many people
working." Robertson thereafter repeatedly spoke to
Union Business Agent Steininger about her difficulty in
getting back to work and Steininger said:
Suzie [Robertson], there is nothing I can do if Ron
[Garnache] says you cannot go back to work until
you have a 100 percent release, you can't go back
to work. It is his prerogative.
Subsequently, Robertson met with Gamache and this
time Gamache stated, inter alia, that he wanted a "100
percent [medical] release"; the insurance company would
not allow him to put her back to work; he did not "un-
derstand why [she was] fighting so hard for a position
that will probably be closed by the end of December";
and "if he allowed [her] to go back to work and [she]
worked two days and went on sick leave ... he would
look like a fool."
Union Secretary-Treasurer and Fund Trustee Ga-
mache, although asserting that "I don't normally deal
with [Fund] employees," acknowledged that he did not
treat Robertson "any differently than [he] would treat
any other employee in the bargaining unit in similar cir-
cumstances"; that he spoke to Fund accountant West
about Robertson's problem on a few occasions; and that
The Fund purchases the insurance policy and they
[the insurance company] expect the Fund to have
some reasonable efforts towards that insurance
policy and protecting the insurance company.3
Discussion
In Child Day Care Center, 252 NLRB 1177 (1980), the
Board observed:
The Board has held that a union's participation in a
trust fund does not preclude its representation of
the fund's employees where union officials do not
represent a majority on the board of trustees and
there is no other reason to suppose that the union is
unable to approach negotiations with the single-
minded purpose of protecting and advocating the
interests of employees.
For, as the Board had earlier explained in Oregon Team-
sters' Security Plan Office, 119 NLRB 207, 211-212
8 As noted above, the facts in this case are essentially undisputed. I
credit the above recited testimony of both Robertson and Gamache as
reasonably reflecting what transpired during the pertinent sequence of
events. Insofar as Gamache's testimony of record may differ from the tes-
timony of record of Robertson, I am'persuaded here that Robertson's tes-
tunony is more complete and reliable. Gamache's testimony was at tunes
incomplete, vague, and unclear.
1087
(1957), "where, as here, a union has allegiances which
conflict with that purpose, we do not believe that it can
be a proper representative of employees." See also St.
Louis Labor Health Institute, 230 NLRB 180 (1977), also
involving Respondent Union, Gamache, Akers, and San-
ford.
In the instant case, as General Counsel argues, the
dual role played by Union Secretary-Treasurer and Fund
Trustee Gamache and his close involvement in day-to-
day personnel and labor relations matters give rise to a
disabling conflict of interest here. Gamache is the chief
executive officer of the Union. He is also the trustee of
the Fund who in fact exercises ultimate control over unit
personnel and labor relations matters. Thus, when unit
employee Robertson went to her Union Business Agent
Steininger for assistance in getting back to work, she was
told:
Suzie [Robertson], there is nothing I can do if Ron
[Gamache] says you cannot go back to work until
you have a 100 percent release, you can't go back
to work. It is his prerogative.
At the same time, Fund accountant West similarly ap-
prised Robertson that in effect West was complying with
the directives of her boss, Gamache. Gaanache was thus
in charge of the Employer's operation and the Union's
operation, and Steininger, as the union representative
who ordinarily would assist an employee-member like
Robertson, was not going to take on her boss, Union
Secretary-Treasurer Gamache-"it is his prerogative." In
short, Gamache had the last word here as the chief
union representative and the trustee of the Fund engaged
in the day-to-day management of employment practices.
The conflict here, as demonstrated by Robertson's plight,
was substantial and insurmountable.
Accordingly, I find and conclude that Respondent
Union and Respondent Fund have violated Section
8(b)(1)(A) and (2) and Section 8(a)(1), (2), and (3) of the
National Labor Relations Act, respectively, by ' maintain-
ing and enforcing a collective bargaining agreement con-
taining union-security and dues-checkoff provisions when
the Union was disqualified from acting as representative
of the Fund's employees as a result of a conflict of inter-
est, i.e., the Union has sought to function as the bargain-
ing representative for employees of the Employer Fund
when officers and agents of the Union exerted substantial
control over the day-to-day operations of the Employer
in regard to personnel and labor relations matters.
CONCLUSIONS OF LAW
1. Respondent Union is a labor organization as alleged.
2. Respondent Fund is an employer engaged in com-
merce as alleged.
3. Respondent Union and Respondent Fund have vio-
lated Section 8(b)(1)(A) and (2) and Section 8(a)(1), (2),
and (3) of the National Labor Relations Act, respective-
ly, by maintaining and enforcing a collective bargaining
agreement containing union-security and dues-checkoff
provisions when the Union was disqualified from acting
as representative of the Fund's employees as a result of a
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conflict of interest, as alleged in the amended consolidat-
ed complaint.
4. The unfair labor practices found above affect com-
merce as alleged.
REMEDY
To remedy the unfair labor practices found above, Re-
spondents will be directed to cease and desist from en-
gaging in the conduct found unlawful herein or like or
related conduct and to post the attached notices. Fur-
ther, Respondent Fund will be directed to withdraw and
withhold all recognition from Respondent Union as the
exclusive bargaining agent of its employees unless and
until the Union has been duly certified as such represent-
ative by the Board; to jointly and severally with Re-
spondent Union reimburse its employees, former and
present, for all dues and assessments and fees exacted
from them by or on behalf of the Union within the 6-
month limitation period of Section 10(b) of the Act, with
interest as provided in New Horizons for the Retarded,
283 NLRB 1173 (1987); and to preserve and, on request,
make available to the Board or its agents for examination
and copying all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order. Respondent Fund
will also be directed to cease and desist from maintaining
and giving effect to any collective-bargaining agreement,
oral or written, with the Union, however, nothing herein
shall be construed to require Respondent Fund to vary
or abandon any wages, hours, seniority, or other substan-
tive feature of its relations with its employees which the
Fund has established pursuant to any contract, agree-
ment or understanding, or to prejudice the assertion by
any of its employees of any rights acquired thereunder.
See St. Louis Labor Health Institute, supra.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
A. Respondent Teamsters Local 688 Insurance and
Welfare Fund, St. Louis, Missouri, its officers, agents,
successors , and assigns, shall
1. Cease and desist from
(a) Recognizing Teamsters Local Union No. 688, affili-
ated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers Of America, as
the exclusive bargaining agent of its employees unless
and until the National Labor Relations Board shall certi-
fy the Union as such representative.
(b) Maintaining or giving any force or effect to any
collective-bargaining agreement, oral or written, with the
Union, provided, however, nothing herein shall be con-
strued to require Respondent Fund to vary or abandon
any wages, hours, seniority, or other substantive feature
4 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
of its relations with its employees which the Fund has
established pursuant to any contract, agreement or un-
derstanding, or to prejudice the assertion by any of its
employees of any rights acquired thereunder.
(c) Encouraging membership in the Union or any
other labor organization by conditioning the hire or
tenure of employment or any term or condition of em-
ployment of any of its employees upon membership in,
or dues payment to, any such labor organization, except
as authorized by Section 8(a)(3) of the Act.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw and withhold all recognition from the
Union as the exclusive bargaining agent of its employees
unless and until the Board shall certify the Union as such
representative.
(b) Jointly and severally with the Union reimburse its
employees, former and present, for all dues and assess-
ments and fees exacted from them by or on behalf of the
Union within the 6-month limitation period of Section
10(b) of the Act, with interest as provided in the remedy
section of this decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Peverly and St. Louis, Missouri facilities
copies of the attached notices marked "Appendix A" and
"Appendix B."5 Copies of the notices, on forms provid-
ed by the Regional Director for Region 14, after being
signed by Respondent's authorized representative, shall
be posted by Respondent Fund immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
to ensure that notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
B. Respondent Union, Teamsters Local Union No.
688, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Acting as the exclusive collective bargaining agent
of any of Respondent Fund's employees unless and until
the Board shall certify the Union as such representative.
(b) Attempting to enforce or to apply any collective-
bargaining agreement, oral or written, with Respondent
Fund , and from entering into, maintaining, or enforcing
b 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 Nation-
al 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."
TEAMSTERS LOCAL 688 INSURANCE & WELFARE FUND
any collective-bargaining agreement with Respondent
Fund unless and until the Board shall certify the Union
as such representative.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed to
them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Jointly and severally with the Fund reimburse its
employees, former and present, for all dues and assess-
ments and fees exacted from them by or on behalf of the
Union within the 6-month limitation period of Section
10(b) of the Act, with interest as provided in the remedy
section of this decision.
(b) Preserve and, on request, make available to the
Board or its agents for' examination and copying all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount Of backpay due under the
terms of this Order.
(c) Post at its business offices and meeting halls copies
of the attached notices marked "Appendix A" and "Ap-
pendix B."6 Copies of the notices, on forms provided by
the Regional Director for Region 14, after being signed
by Respondent's authorized representatives, shall be
posted by Respondent Union immediately upon receipt
in conspicuous places, including all places where notices
to members are customarily posted, and maintained for
60 consecutive days. Reasonable steps shall be taken to
ensure that notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
e See fn . 5 supra.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
1089
The National Labor Relations Board has found that we
have violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
WE WILL NOT act as the exclusive collective-bargain-
ing agent of any of the Fund's (Teamsters Local 688 In-
surance and Welfare Fund) employees unless and until
the National Labor Relations Board shall certify us as
such representative.
WE WILL NOT attempt to enforce or to apply any col-
lective-bargaining agreement , oral or written, with the
Fund, and enter into, maintain, or enforce any collective-
bargaining agreement with the Fund unless and until the
Board shall certify us as such representative.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
to them in Section 7 of the Act.
WE WILL jointly and severally with the Fund reim-
burse its employees, former and present, for all dues and
assessments and fees exacted from them by or on 'our
behalf within the 6-month limitation period of, Section
10(b) of the Act, with interest as provided in the Board's
decision.
TEAMSTERS LOCAL UNION No. 688, AF-
FILIATED WITH THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMENAN AND HELPERS
OF AMERICA