Teamsters Local 727 (GES)

National Labor Relations Board - Board Decisions

Dec 5, 2013

360 N.L.R.B. 65 (N.L.R.B. 2013)

TEAMSTERS LOCAL 727 (GLOBAL EXPERIENCE SPECIALISTS, INC.) 65
360 NLRB No. 13
International Brotherhood of Teamsters, Local 727
(Global Experience Specialists, Inc.) and Daniel
Kasper. Case 13–CB–073396
December 5, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On December 18, 2012, Administrative Law Judge
Margaret G. Brakebusch issued the attached decision.
The Respondent filed exceptions and a supporting brief.
The Acting General Counsel filed an answering brief.
The National Labor Relations Board has delegated 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 briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, International Brotherhood of Teamsters,
Local 727, its officers, agents, and representatives, shall

1 We agree with the judge that the evidence clearly shows that the
seniority system agreed to by Local 727 and GES was based solely on
the date that employees became members of Local 727 in violation of
Sec. 8(b)(1)(A) and (2) of the Act. See Interstate Bakeries Corp., 357
NLRB 15, 17 (2011), affd. 488 Fed. Appx. 280 (10th Cir. 2012), cert.
denied 133 S.Ct. 1458 (2013); Reading Anthracite Co., 326 NLRB
1370, 1370 (1998). The unambiguous language of the collective-
bargaining agreement between GES and Local 727 states that an em-
ployee’s seniority is calculated “on the basis of the Employee’s date of
Union acceptance.” Michael Jain, Local 727’s business representative,
confirmed that the seniority system was based on an employee’s date of
membership in Local 727 when he told employee Daniel Kasper that he
was placed at the end of the seniority list because he was new to the
Union.
The Respondent has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 1083 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
The Respondent has also excepted to the judge’s misstatement, at
the end of her analysis of the complaint allegations, that it violated Sec.
2(6) and (7) of the Act. Consistent with the judge’s subsequent conclu-
sion of law, we clarify that Global Experience Specialists, Inc. is an
employer engaged in commerce within the meaning of Sec. 2(6) and
(7), and that the Respondent violated Sec. 8(b)(1)(A) and (2) of the Act.
2 We shall modify the judge’s recommended Order to provide for
the posting of the notice in accord with J. Picini Flooring, 356 NLRB
11 (2010), and in accordance with our decision in Latino Express, Inc.,
359 NLRB 518, 519 fn. 10 (2012) (holding that a respondent that has
never been an employer of the discriminatee is subject to the tax-
compensation remedy, but not the Social Security reporting require-
ment). We also modify the recommended Order and notice to conform
to our findings and to the Board’s standard remedial language.
1. Cease and desist from
(a) Attempting to cause or causing Global Experience
Specialists, Inc. (GES) or any other employer to endtail
employees to lesser positions on the master seniority list
because of their length of membership in Local 727.
(b) Entering into an agreement with GES or any other
employer that causes employees to be endtailed to lesser
positions on the master seniority list because of their
length of membership in Local 727.
(c) In any like or related manner restraining or coerc-
ing members in the exercise of rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify GES that it does not seek employees’
placement on a master seniority list on the basis of the
length of membership in Local 727.
(b) Notify GES that it rescinds their agreement to
place employees on a master seniority list on the basis of
the length of membership in Local 727.
(c) Make Jerold Wohlardt, Daniel Kasper, Raymond
Carl, Frank Gajewski, and James Grung whole for losses
incurred as a result of the discrimination against them in
the manner specified in the remedy section of the judge’s
decision.
(d) Compensate Wohlardt, Kasper, Carl, Gajewski,
and Grung for any adverse income tax consequences of
receiving make-whole relief in one lump sum.
(e) Within 14 days after service by the Region, post at
its office within the jurisdiction of Local 727, copies of
the attached notice marked “Appendix.”3 Copies of the
notice, on forms provided by the Regional Director for
Region 13, after being signed by Local 727’s authorized
representative, shall be posted by Local 727 and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees and
members are customarily posted. In addition to physical
posting of paper notices, notices shall be distributed elec-
tronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its members by
such means. Reasonable steps shall be taken by Local
727 to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Within 14 days after service by the Region, deliver
to the Regional Director for Region 13 signed copies of
the notice in sufficient number for posting by the Em-

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD66
ployer at its Hodgkins, Illinois facility, if it wishes, in all
places where notices to employees are customarily post-
ed.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on forms provided by the Region at-
testing the steps that Local 727 has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND 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 vio-
lated the National Labor Relations Act and has ordered us to
post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT attempt to cause or cause Global Experi-
ence Specialists, Inc., or any employer to reduce employ-
ees’ seniority because of their length of membership in
Local 727.
WE WILL NOT enter into an agreement with Global Ex-
perience Specialists, Inc., or any other employer to re-
duce employees’ seniority because of their length of
membership in Local 727.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL notify Global Experience Specialists, Inc.,
that we rescind any previous requests for Jerold
Wohlardt, Daniel Kasper, Raymond Carl, Frank Gajew-
ski, and James Grung to be placed at the bottom of the
GES/727 master seniority list.
WE WILL notify Global Experience Specialists, Inc.,
that we rescind our agreement to place Jerold Wohlardt,
Daniel Kasper, Raymond Carl, Frank Gajewski, and
James Grung at the bottom of the GES/727 master sen-
iority list.
WE WILL make whole Jerold Wohlardt, Daniel Kasper,
Raymond Carl, Frank Gajewski, and James Grung for
losses they incurred as a result of the discrimination
against them.
WE WILL compensate Jerold Wohlardt, Daniel Kasper,
Raymond Carl, Frank Gajewski, and James Grung for the
adverse income tax consequences, if any, of receiving
lump-sum backpay awards.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
LOCAL 727
Kevin McCormick, Esq., for the Acting General Counsel.
Stephanie K. Brinson, Esq., of Park Ridge, Illinois, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law Judge.
This case was tried in Chicago, Illinois, on July 9 and 10, 2012.
Daniel Kasper, an individual (Kasper), filed the amended
charge in Case 13–CB–073396 on February 21, 2012,1 and the
Acting2 General Counsel (the General Counsel) issued the
complaint on April 30, 2012.
Generally, the complaint alleges that the International Broth-
erhood of Teamsters, Local 727 (Local 727) failed to represent
five employees of Global Experience Specialists, Inc. (GES) by
requesting that GES endtail these employees into a master sen-
iority list that changed their seniority to new hire status. The
complaint also alleges that Local 727 entered into an agreement
with GES for these employees to be endtailed on the master
seniority list and thus changing their status to new hire.
On the entire record, including my observations of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Local 727, I make the following
FINDINGS OF FACT
During the calendar year preceding the issuance of com-
plaint, GES purchased and received goods and materials in
excess of $50,000 directly from points outside the State of Illi-
nois. In its answer, Local 727 asserts that it has no knowledge
of GES commerce facts. In its answer to a complaint filed in
Cases 13–CA–075013 and 13–CA–075014, GES admits that it
is an employer engaged in commerce within the meaning of
2(2), (6), and (7) of the Act. Although these two cases were
initially consolidated for trial with Case 13–CB–073395, Re-
spondent GES and the General Counsel reached a settlement
just prior to the hearing and the General Counsel withdrew its
complaint allegations concerning Respondent GES. I neverthe-
less find for purposes of this proceeding that at all material
times GES has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. Local 727
admits and I find that the International Brotherhood of Team-
sters Local 705 (Local 705) and Local 727 have been labor
organizations with the meaning of Section 2(5) of the Act.
ALLEGED UNFAIR LABOR PRACTICES
A. Procedural Background
As referenced above, Kasper filed a charge against Local 727
on February 21, 2012, generally alleging that Local 727 failed
to represent its members by entering into an agreement with

1 All dates are in 2012, unless otherwise indicated.
2 The Acting General Counsel is referenced as the General Counsel.
TEAMSTERS LOCAL 727 (GLOBAL EXPERIENCE SPECIALISTS, INC.) 67
GES that adversely affected the seniority status of certain em-
ployees. On or about the same date, Kasper also filed charges
Cases 13–CA–075013 and 13–CA–075014 against GES alleg-
ing that GES had discriminated against employees because of
the agreement with Local 727. Based on Kasper’s charges, the
Acting General Counsel issued a complaint and notice of hear-
ing against Local 727 on April 30, 2012, and a consolidated
complaint and notice of hearing against GES on April 30, 2012.
All matters included in the complaint, as well as the consolidat-
ed complaint, were scheduled to be heard in a consolidated
hearing. Just prior to opening the record in this matter, GES
and the General Counsel entered into a settlement and the Gen-
eral Counsel withdrew its complaint allegations against GES.
B. Issues
As counsel for Respondent points out in her brief, the facts
in this matter are largely not in dispute. GES consolidated its
warehouse operations and moved employees from its Roselle,
Illinois facility and its Cicero, Illinois facility into a new facility
that is identified as the Hodgkins facility. Local 727 does not
deny that it requested that GES place the Roselle employees at
the bottom of the master seniority list at the new facility and
that it entered into an agreement with GES that provided for
such decreased seniority for the Roselle employees. General
Counsel asserts that Local 727 did so because these employees
had not previously been members of Local 727 prior to the
consolidation. Local 727 maintains that Local 727 did not dis-
criminate against the Roselle employees because of the length
of their membership in Local 727, but instead treated them
differently because of their length of employment in the Hodg-
kins bargaining unit.
C. Background
GES is a division of Viad Corporation that produces trade
shows and exhibition events. In providing exhibition services
all over the United States, GES designs, builds, warehouses,
and transports display and exhibition materials. Gary Behling
(Behling) is director of labor relations for GES and has worked
for the employer since January 5, 2009. His duties involve the
negotiation of collective-bargaining agreements between GES
and unions for the eastern half of the United States. Prior to
February 2012, GES maintained two facilities in the Chicago
area with employees represented by two separate bargaining
representatives. The employees who were responsible for
warehousing duties at GES’s Roselle, Illinois facility were
represented by the International Brotherhood of Teamsters,
Local 705 (Local 705). The employees who were involved in
warehousing, driving, and site work at GES’s Cicero, Illinois
facility were represented by the International Brotherhood of
Teamsters, Local 727 (Local 727). As of December 8, 2011,
Local 705 represented 6 warehouse employees at the Roselle
facility and Local 727 represented 41 drivers, show, and ware-
house employees at the Cicero facility.
D. Local 705’s Agreement with GES
In the summer of 2011, Richard de Vires (de Vires) served
as union representative for Local 705 and he had held represen-
tational responsibilities for GES employees since 1993. The
collective-bargaining agreement between GES and Local 705
that pertained to the Roselle facility employees covered the
period from June 1, 2010, through May 30, 2012. Section 15.3
of the agreement provides:
When the operations of two or more Employers are consoli-
dated into a new business concern, the seniority standing of
the Employees employed by the new business concern shall
be determined by the names being sandwiched in one-for-one,
starting with the most senior Employee in each company.
De Vires testified that the consolidation of seniority lists
identified in section 15.3 is accomplished by comparing the
seniority lists from both facilities and identifying the employee
who is the most senior for both lists. This employee is then
designated as the employee with the most seniority for the new
consolidated list. Then the second employee for the consoli-
dated list is the most senior employee from the alternate list.
The procedure requires alternating the employees by seniority
from each list to add their names to the consolidated list. Thus,
the employee’s position on the consolidated list is based on the
sandwiching of their rankings on the two respective lists. De
Vires explained that this kind of sandwiching of employees into
one consolidated seniority list is different from what is identi-
fied as “dovetailing” seniority. In dovetailing, the names of the
employees in both seniority lists are consolidated and the order
is determined by the employees’ date of hire or date they re-
ported to work. Dovetailing is based on straight seniority. As
the record reflects, “endtailing” is the process by which an em-
ployee (or employees) is intentionally placed at the bottom of a
seniority list when there is a consolidation of employees into
one seniority list.
E. Local 705 and the GES Consolidation
As early as 2009, there had been industry rumors that GES
was planning a reorganization strategy. On May 15, 2011, de
Vires sent an email to Behling of GES, telling Behling that he
had heard industry gossip that GES was taking over a facility in
Hodgkins, Illinois. De Vires suggested that if that were true
some bargaining might be required and Behling should treat the
email as a request to bargain over changes in terms and condi-
tions of employment during the term of the existing contract
between GES and Local 705. On June 27, 2011, Behling sent
de Vires a letter confirming that GES was looking at the eco-
nomic advantages of combining its Cicero and Roselle ware-
houses into a single facility located in Hodgkins, Illinois. Beh-
ling explained that if GES did so, the action would occur in or
about November 2011 and all of the employees represented by
Local 705 at Roselle and all of the employees represented by
Local 727 at Cicero would transfer to the new facility. Behling
suggested that if de Vires or other representatives of Local 705
wanted to meet and discuss the matter, GES representatives
would be available during the first 2 weeks of August 2011. De
Vires responded to Behling’s June 27, 2011 letter by making a
formal request to bargain in an email dated July 5, 2011.
Between August 2011 and December 2011, GES and Local
705 exchanged proposals and then ultimately entered into a
Memorandum of Understanding and Consolidation Agreement
on December 8, 2011. The agreement provided that all of the
Roselle bargaining unit employees would physically relocate to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD68
the Hodgkins facility on January 15, 2012, or as soon as practi-
cal thereafter. The Agreement also provided that the GES Ro-
selle bargaining unit employees would be “sandwiched” into
the master GES/727 seniority list, in accordance with the con-
tractual agreement with Local 705. The consolidation agree-
ment signed by GES and Local 705 also provided that the Mas-
ter GES/727 seniority list would be implemented on January 1,
2012 and at that time all employees would be covered by the
labor agreements between GES and Local 727. The existing
agreement between Local 705 and GES would expire on De-
cember 31, 2011. The agreement would not be renewed and
the bargaining relationship between Local 705 and GES would
terminate on that date.
F. Local 727 and the Consolidation
Local 727 has represented the Cicero bargaining unit em-
ployees since 2008.3 John Coli (Coli) is the president and busi-
ness manager for Local 727. Michael Jain (Jain) has been em-
ployed with Local 727 for approximately 2 years and he is the
business representative for the GES bargaining unit. As of
November 2012, the collective-bargaining agreement between
GES and Local 727 had an expiration date of December 31,
2013. Articles 6.1 and 6.4 of the agreement provide that an
employee’s seniority is calculated on the basis of the employ-
er’s date of union acceptance. Coli testified that seniority under
the agreement is defined as the length of time an employee has
been working for the employer as a member of the Union.
In or around June 2011, Behling sent Jain written notice that
GES was considering the warehousing move. Coli later re-
ceived a letter from Behling confirming that GES planned to
move its warehousing operation to the Hodgkins facility. In
August 2011, Behling contacted Jain concerning a meeting
scheduled at the Roselle facility that would be attended by GES
representatives and Local 705. Jain testified that he was not
invited to be a participant at the meeting; only an observer.
Jain also testified that de Vires instructed him that he was not to
negotiate or speak on behalf of Local 705. Jain attended the
August meeting, as well as one additional meeting in October
2011, in which he also attended as an observer. There is no
evidence that Jain participated in the meetings to any greater
capacity than as an observer.
When Coli spoke with Behling in November 2011 concern-
ing the consolidation, Behling remarked that there would be
more employees coming from Cicero than from Roselle. He
asked Coli’s opinion as to who would be the bargaining repre-
sentative. Coli testified that he suggested a unit clarification
petition. On December 6, 2012, Coli, on behalf of Local 727,
filed a unit clarification petition with the National Labor Rela-
tions Board (the Board) and a hearing was ultimately scheduled
for January 30, 2012.
G. The Implementation of the Seniority List
Daniel Kasper began working for GES on October 12, 1983.
Kasper worked at the Roselle facility from 1994 until January
31, 2012, before he was transferred to the Hodgkins facility.

3 By agreement with the International Brotherhood of Teamsters
Local 714, Local 727 assumed the bargaining responsibility for the
Cicero bargaining unit prior to the dissolution of Local 714.
Kasper testified that on January 2, 2012, he spoke with his pro-
duction manager; Larry Roberts in the Roselle traffic depart-
ment about seniority. Roberts told him that he had just re-
ceived the new seniority list from GES Traffic Coordinator
Scott Anderson. Using the new seniority list, Roberts asked
Kasper and other Roselle employees if they wanted to take a
job working at a trade show at the McCormick Place in Chica-
go. Kasper testified that neither he nor the other Roselle em-
ployees had previously worked a trade show. All five of the
Roselle employees declined the job and opted to remain at Ro-
selle to complete their move to the Hodgkins facility. Follow-
ing Roberts’ conversation with Kasper, Roberts also emailed
the new seniority list to Kasper. The list that Kasper received
was captioned “Teamster Seniority List Effective 1–30–12.”
Roselle employee Jerold Wolhardt was listed as the second
name on the seniority list and Kasper was listed as the fourth
name on the list. Roselle employees Raymond Carl, Frank
Gajewski, and James Grung were included on the list in the 6th,
8th, and 10th slots, respectively. Behling testified that the sen-
iority list was created between Christmas 2011 and New Year’s
Day on 2012 and posted somewhere in the warehouse area.
In an email dated January 3, 2012, Jain informed Behling
that it had come to his attention that a GES Teamster seniority
list that included both the Local 727 bargaining unit employees
and the Local 705 bargaining unit employees had been posted.
Jain asserted that as of that date Local 727 did not have any
agreement with GES concerning the integration of the Local
705 bargaining unit employees. Jain demanded that the Local
705 employees perform what was previously considered Local
705 bargaining unit work until an agreement had been reached.
Jain went on to add that any instance where a Local 705 bar-
gaining unit employee performed Local 727 bargaining unit
work would be viewed as a violation of the contract between
GES and Local 727. In a followup email on January 3, 2012,
Behling told Jain that he had spoken with the general manager
who agreed that until the employee groups move into one
building, GES employees would continue doing the work they
had previously done. When Jain responded, he stated, “Honest-
ly, until we have an agreement, we won’t be accepting the 705
group into our bargaining unit, regardless of what building their
all working in.”
Kasper testified that on the same day that Roberts offered
him the trade show work at McCormick Place, Roberts came
back to him and reported that the seniority list had been pulled.
Roberts told him that the Roselle employees were no longer
going to be offered work outside the Roselle facility until they
actually moved to the Hodgkins facility.
In an email to Behling dated January 4, 2012, Jain attached a
signed copy of a voluntary recognition agreement, recognizing
Local 727 as the bargaining representative for the bargaining
unit employees at the Hodgkins facility. The wording of the
proposed agreement provided that the five members of Local
705 would be transferred to the Local 727 bargaining unit at the
new Hodgkins’ facility and that the contract between Local 727
and GES would apply to the new bargaining unit at the Hodg-
kins facility. The agreement forwarded to Behling included
Coli’s signature and signature lines for both Behling and a rep-
resentative of Local 705.
TEAMSTERS LOCAL 727 (GLOBAL EXPERIENCE SPECIALISTS, INC.) 69
Behling did not sign the document and return it to Coli as
Coli’s letter suggested. Behling recalled that it was not until he
came to the Board’s regional office on January 30, 2012, for the
unit clarification hearing that he actually signed the document.
Behling testified that the document was placed before him in
the January 30, 2012 meeting and he was urged to sign it as
there was agreement that Local 727 was going to be the union
representative. Behling did not know if the document was
shown to Local 705, however, he recalled that representatives
from Local 705 were in attendance. There is no record evi-
dence that representatives of Local 705 signed the agreement
that Behling signed on January 30, 2012.
H. The New Seniority List
Kasper testified that on January 31, 2012, Roberts tele-
phoned him and told him that he wanted to talk with him per-
sonally about a new seniority list that had been emailed to him.
When Roberts arrived at the Roselle facility, he showed Kasper
the seniority list from Roberts’ Blackberry. Kasper’s name was
listed as fourth from the bottom.
After meeting with Roberts, Kasper spoke with Jain by tele-
phone. Kasper asked Jain when the Roselle employees would
be able to join Local 727 because they would be moving to the
Hodgkins facility the next day. Kasper also asked Jain why the
Roselle employees had been placed at the bottom of the seniori-
ty list. Kasper testified that Jain told him that the Roselle em-
ployees were new to Local 727 and that the Roselle employees
were placed at the bottom of the seniority list because their hire
date was January 31, 2012.
I. Local 727’s Consolidation Agreement with GES
On March 1, 2012, Coli and Behling signed a consolidation
agreement. The agreement provided that the GES Roselle bar-
gaining unit employees would be integrated into the Master/727
Seniority List in accordance with article 6 of Local 727’s col-
lective-bargaining agreement and that the Master GES/727
Seniority List would be implemented effective February 1,
2012, whether or not the move had been completed. Article 6
of the Local 727 contract, as referenced in the consolidation
agreement, provides that the seniority status of individual em-
ployees is calculated on the basis of the employee’s date of
union acceptance. The consolidation agreement specified that
the GES Roselle bargaining unit employees would retain their
original Roselle seniority dates for purposes of vacation only.
Furthermore, the consolidation agreement further clarified that
within a month following the physical transfer to the Hodgkins
facility, the Roselle bargaining unit employees were required to
execute a request to transfer membership to Local 727 and to
execute a dues checkoff provided by Local 727.
On March 1, 2012, Local 727 scheduled an employee meet-
ing to vote on the consolidation agreement. Twenty-two em-
ployees voted by secret ballot. Coli testified that three of the
Roselle employees participated in the vote. There were 12
votes cast to ratify the agreement and 10 votes cast to reject the
agreement.
J. The Effect of the Reduced Seniority for the Former
Roselle employees
Article 6.5 of the existing collective-bargaining agreement
between GES and Local 727 provides that seniority shall pre-
vail in all cases of layoff. Local 727’s consolidation agreement
with GES provides that the Master GES/727 Seniority shall
also govern for layoff. On February 8, 2012, GES laid off for-
mer Roselle employees Daniel Kasper, Raymond Carl, Frank
Gajewski, and James Grung. On February 10, 2012, these
same employees, as well as former Roselle employee Jerold
Wohlardt, were laid off. On February 22, 2012 GES also laid
off Grung, Kasper, Carl, and Gajewski and on February 24,
2012, GES laid off Wohlardt, Grung, Kasper, Carl, and Gajew-
ski. Finally, on April 10, 2012, GES laid off employees
Wohlardt, Kasper, Carl, Grung, and Gajewski. Kasper testified
that during the period between February 8 and April 10, 2012,
he was laid off for approximately 29 days. Gajewski testified
that he was laid off during this same period for 31 days. Alt-
hough the record does not contain the specific date, the seniori-
ty list was changed after April 10, 2012, and Kasper resumed
working without layoff interruptions. Kasper testified that he
was ultimately moved back to the fourth slot on the seniority
list.
Both Kasper and Gajewski testified that during the time that
they were at the bottom of the seniority list, they did not receive
401(k) contributions and they lost vacation. Kasper testified
that he had 6-1/2 weeks of vacation when he left the Roselle
facility. When he began working at the Hodgkins facility, his
vacation was reduced to zero. His vacation was later restored
to 4-1/2 weeks. Gajewski testified that during the period when
he was at the bottom of the seniority list, one of his wife’s in-
surance claims was denied.
K. Whether Respondent’s Actions Violated the Act
1. The allegations
The General Counsel alleges that Local 727 took action
against employees Wohlardt, Kasper, Carl, Gajewski, and
Grung because of their affiliation with Local 705 and because
of their length of membership in Local 727. Specifically, the
General Counsel alleges that since February 12, 2012, Local
727 has failed to fairly represent employees Wohlardt, Kasper,
Carl, Gajewski, and Grung by entering into an agreement with
GES that caused the named employees to be entailed on the
Hodgkins master seniority list and thus changing their seniority
to new hire status. In Local 727’s doing so, the General Coun-
sel contends that Local 727 selected these same employees for
layoff and affected their healthcare and vacation benefits. Fur-
thermore, the General Counsel alleges that about February
2012, Local 727 requested that GES “endtail” these same five
employees on the Hodgkins master seniority list; changing their
status to new hire.
2. Local 727’s arguments
In defense of its actions, Local 727 argues that the Roselle
employees were never previously in a bargaining unit repre-
sented by Local 727 and that Local 727’s actions in response to
the merger were appropriate and lawful. Local 727 asserts that
it filed a unit clarification petition so that no confusion would
remain as to the proper bargaining representative for these Ro-
selle employees. Furthermore, Local 727 contends that it was
not obligated to recognize the ineffective agreement that Local
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD70
705 negotiated with GES and that it negotiated a lawful agree-
ment with GES. Finally, Local 727 asserts that Local 705’s
agreement with GES is improper under the constitution of the
International Brotherhood of Teamsters and the bylaws of Lo-
cal 727.
First of all, I agree that Local 727 was not obligated to rec-
ognize the agreement that Local 705 negotiated with GES.
While the agreement provided for a process of sandwiching the
seniority status for the Roselle employees and the Cicero em-
ployees for the merged bargaining unit, the agreement included
only two of the three parties affected by the agreement. As
Local 727 points out in its brief, the agreement between GES
and Local 705 concerning the working conditions of employees
represented by Local 727 was not binding on Local 727. Be-
cause I don’t otherwise find the agreement between GES and
Local 705 binding on Local 727, I find no need to address Lo-
cal 727’s argument concerning the legitimacy of the agreement
with respect to the Union’s constitution or bylaws.
In support of its argument that it acted lawfully in negotiat-
ing its agreement with GES that provided for endtailing the
seniority of the Roselle employees, Local 727 relies on the
decision of the Seventh Circuit Court of Appeals in Schick v.
NLRB, 409 F.2d 395 (7th Cir. 1969). In that decision, the court
upheld the Board’s decision finding no violation despite the
union’s involvement in causing the endtailing of the seniority
for employees brought into a bargaining unit from a rival union.
Local 727 asserts that the facts of Schick are identical to those
in the current case and thus the complaint should be dismissed
as in Schick.
While there are corresponding issues in both cases, I do not
find the facts of the Schick case to be sufficiently similar to
support Local 727’s arguments. In Schick, the employer had
separate bargaining units with Teamsters’ Local 705 and Team-
sters Local 710. The 705 agreement covered employees per-
forming delivery of dry freight and the 710 contract covered
employees engaged in meat hauling. Separate seniority lists
were maintained for each unit. During the 1950’s, the employ-
er began increased dry-freight hauling and less meat hauling
and the employer then assigned 710 drivers to perform dry-
freight work. Local 705 protested that the 710 drivers were
performing work that was within its jurisdiction. In 1962, at-
tempts by the 710 drivers to transfer into 705 were successfully
opposed by both Local 710 and the employer. In 1964, the
employer merged with another employer and the Local 710
drivers were told that they would have to transfer to Local 705
to perform work that was within 705’s jurisdiction. They were
also told that they would have to go to the bottom of the senior-
ity list. When the 710 drivers met with 705 representatives,
they were told that they would participate in the 705’s health
and welfare benefits immediately and that 705 would try to get
them pension benefits as well. Furthermore, the top six drivers
on the 710 seniority list would stay in 710 and keep their sen-
iority, although they would perform dry-freight work. The
remaining 12 drivers would transfer to 705 and go to the bot-
tom of the 705 seniority list.
The court found that the record did not support a finding that
the 710 employees were given inferior seniority rankings be-
cause of their union affiliation. The court found that the 710
employees were placed at a disadvantage, not because they
were members of another union, but because they were mem-
bers of another unit. The court went on to point out that the
fact that a substantial majority of the work of the 710 drivers
consisted of dry-freight hauling did not make them members of
the unit represented by 705, inasmuch as 705 had protested the
infringement and had, at one point, pressed its complaint so far
as to forbid the employer to utilize 710 drivers for overtime
work in the dry-freight category. Thus, unlike the circumstanc-
es involved in the instant matter, the work performed by the
two bargaining units in Schick was very much an issue of dis-
pute between the two unions long before the merger. Under
those circumstances, it is reasonable that the court held that the
change in seniority resulted from the need to protect the integri-
ty of the unit represented by 705 rather than from an arbitrary
discrimination based on their past union affiliation.
In an attempt to draw an analogy with the circumstances in
the Schick case, Local 727 argues that the Roselle bargaining
unit employees did not perform the same work as the Cicero
employees until after they were transferred to the Hodgkins
facility. Specifically, Local 727 argues that prior to the merger,
Roselle employees were engaged primarily in pulling property
from storage, filling orders, loading trucks, and unloading
trucks while the Cicero employees were also involved in trans-
porting the materials to the trade shows. Furthermore, Local
727 contends that similar to the circumstances of the Schick
case, it protested anyone other than its bargaining unit members
performing bargaining unit work unless and until it was the
proper and exclusive bargaining representative. Local 727
points to the fact that after the first seniority list was posted on
January 3, 2012, Jain protested the “sandwiching” of the Ro-
selle and the Cicero employees for seniority.
While the record reflects that the work performed by the em-
ployees at the Cicero facility included some additional duties
involving the trade shows, the overall record does not suggest
that the Roselle and Cicero bargaining units were divergent
entities with a distinct jurisdictional friction as that found in
Schick. Furthermore, Jain’s response to the January 3, 2012
posting of the seniority list was simply an objection to includ-
ing both the Local 705 employees and the Local 727 employees
on the same list before Local 727 had an agreement with GES
or with any entity concerning the integration of the Local 705
employees. His objection came at a time when there had been
no resolution of the unit clarification petition and before GES
and Local 727 had reached any agreement concerning the inte-
gration of the Local 705 employees. His objection under these
circumstances is not analogous to the longstanding jurisdiction-
al dispute between the unions that was considered by the Board
and the court in Schick.
Furthermore, both the judge in his decision and the court in
its decision in Schick placed great significance on the fact that
the employer and Local 705 found a resolution through collec-
tive bargaining. The court specifically noted that the final solu-
tion for the jurisdictional dispute was a compromise and that it
was the product of collective bargaining which the court was
upholding in its decision. In the instant case, there is no evi-
dence that the recognition agreement signed by Local 727 and
GES came after any meaningful bargaining. As Behling testi-
TEAMSTERS LOCAL 727 (GLOBAL EXPERIENCE SPECIALISTS, INC.) 71
fied, the voluntary recognition agreement was first sent to him
in an email on January 3, 2012. He did not, however, sign it
until the date of the unit clarification hearing on January 30,
2012. He testified that the agreement was placed before him
and after it was pointed out to him that Local 727 would ulti-
mately be the representative for the employees, he signed the
document. The unit clarification hearing never opened and no
decision issued with respect to the representation case.
The recognition agreement between Local 727 and GES pro-
vides that the collective-bargaining agreement between Local
727 and GES would apply to the bargaining unit at the Hodg-
kins warehouse. Article 6.4 of the collective-bargaining
agreement specifically states that the seniority status of em-
ployees is determined on the basis of “the employee’s date of
union acceptance.” Coli testified that Article 6 of the collec-
tive-bargaining agreement means the length of time in which an
employee has been working for the employer as a member of
the union according to the contract. On March 1, 2012, Local
727 and GES signed a consolidation agreement that was retro-
active to February 1, 2012. While the agreement integrated the
Roselle employees into the Master GES/727 seniority list, it did
so in accordance with article 6 of the existing Local 727 collec-
tive-bargaining agreement. Thus, the consolidation agreement
continued the provisions of the recognition agreement in reduc-
ing the Roselle employees’ seniority to the date of union mem-
bership. The consolidation agreement provided that the Roselle
employees would retain their original Roselle seniority dates
for purposes of vacation only.
Coli testified that in the later part of February 2012, he met
with Behling to discuss his concerns about how the move
would be handled and to bargain about the effects of the move.
There was, however, no evidence that there was any bargaining
about the seniority of the Roselle employees. There is nothing
to indicate that Local 727 ever discussed or considered any
position on seniority for the Roselle employees other than what
it first proposed to GES on January 3, 2012. Therefore, while
GES and Local 727 signed two agreements that affected the
Roselle bargaining unit employees, there was no evidence that
there was any meaningful bargaining or compromise concern-
ing these employees seniority as was recognized and relied on
by the court in the Schick case. As early as January 3, 2012,
Local 727 presented GES with its demand that the Roselle em-
ployees would become a part of the Hodgkins bargaining unit
with less seniority than the Cicero employees. Local 727’s
position on the seniority did not change and continued through
the signing of the consolidation agreement on March 1, 2012.
Furthermore, I do not find that the March 1, 2012 vote vali-
dates Local 727’s otherwise unlawful conduct. Citing the
Board’s decision in Teamsters Local 435 (Super Value, Inc.),
317 NLRB 617 (1995), the General Counsel points out that a
union cannot decide an issue before it by having those employ-
ees who could be adversely affected by the resolution of the
issue, notwithstanding their obvious conflict of interest, vote to
decide the issue. It is of no consequence that Kasper and
Gajewski were present or participated in the vote. Clearly, they
were going to be negatively affected by the agreement and they
were outnumbered by the previous members of Local 727 who
would surely want their seniority to remain intact. Counsel for
the General Counsel argues that by placing this consolidation
agreement up for a vote, Local 727 knew that it would pass in
favor of the stronger, majority group and thus further violated
the Act.4
Accordingly, I do not find the circumstances of the instant
case to be significantly similar to those before the Board and
the court in Schick. In summary, I don’t find that Schick or
other case authority cited by Local 727 support a dismissal of
the complaint as argued by Local 727.
3. The case authority in support of the General
Counsel’s allegations
Since as early as 1964, the Board5 has found that it is unlaw-
ful in a unit merger situation to endtail employees who were not
formerly represented by a union. Whiting Milk Corp., 145
NLRB 1035 (1964). The facts in Whiting Milk involve an em-
ployer that acquired another company having five separate
facilities. At four of the acquired facilities, the employees were
represented by a union and at the fifth facility, the employees
were unrepresented. In conformity with a provision of the col-
lective-bargaining agreement in place, the former employees of
the four union-represented facilities were given preferred sen-
iority status over those employees who were previously unrep-
resented. When a layoff came about, the previously unrepre-
sented employees were selected for layoff in accordance with
the contractual provision that caused them to be at the bottom
of the seniority list. Despite the fact that the layoff was fully in
accord with the collective-bargaining agreement, the Board
found that the layoff of the previously unrepresented employees
was substantially related to their earlier lack of membership in
the union of the acquiring employer and thus unlawful.
The Board has continued to find that not only is preference
based on union membership vs. nonmembership unlawful, but
that preferences granted on the basis of any membership con-
siderations is unlawful. In Reading Anthracite Co., 326 NLRB
1370 (1998), a local of the international union was merged into
another local for a single unit. The surviving local caused the
employer to assign all the former local members seniority dates
that reflected the day they joined the surviving local and not the
dates that they began work at the mine. The Board found the
local’s action to violate the Act, noting that it was unlawful to
use membership considerations to determine conditions of em-
ployment and that such conduct violated Section 8(b)(2) of the
Act by discriminatorily encouraging membership in that local.
Local 727 argues that the facts of Reading Anthracite are
distinguishable from the instant case. Counsel argues that the
Roselle employees transferred into a bargaining unit already
existing at the time of their transfer. Counsel also argues that
unlike the transferring employees in Reading Anthracite, the
Roselle employees in the instant case took on the additional job
duties after they transferred to the Hodgkins location. I do not

4 Although counsel for the General Counsel contends in his brief
that the vote was a separate violation, this action is not alleged as a
separate violation in the underlying complaint. While I do not find the
vote to absolve Local 727 for its unlawful conduct, I do not find the
vote to constitute a separate violation.
5 The Board’s decision was not enforced by the First Circuit Court
of Appeals. NLRB v. Whiting Milk Corp., 342 F.2d 8 (1st Cir. 1965).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD72
find these facts significantly distinguishable from those before
the Board in Reading Anthracite. In both cases, the position on
the seniority list for one group of merging employees was gov-
erned by an irrelevant and discriminatory consideration; the
date they became members or came to be represented by a spe-
cific union. Thus, I find the Board’s decision in Reading An-
thracite to support a finding that there was unlawful endtailing
in the instant case.
The Board’s current view on this issue is best seen in its re-
cent decision in Interstate Bakeries Corp., 357 NLRB 15
(2011). In that case, the union represented sales representatives
in two separate bargaining units that also had separate con-
tracts. After deciding to consolidate its service routes, the em-
ployer entered into an agreement with the union to also merge
the bargaining units. The agreement provided for dovetailing
the seniority of the union employees from both bargaining
units. At some point it was discovered that there was one em-
ployee in the new merged unit who had not been previously
included in either of the two previous bargaining units. Despite
the fact that the employee had the greater company seniority,
the employer and union agreed that he would be placed at the
bottom of the newly created seniority list for the newly merged
bargaining unit. The employee was additionally told that the
employer and the union would use union seniority as a criterion
for selecting employees for route eliminations. Because of his
reduced seniority, the employee lost his position at the plant
where he worked and he was forced to commute to another
plant that was farther away.
In finding a violation, the Board explained that in the context
of a unit merger, a union and an employer cannot discriminate
against all or even some of the merged employees on the basis
of their previously unrepresented status. The Board addressed
its earlier decision in Whiting Milk and clarified that it is unlaw-
ful for parties to place employees at the end of the seniority list
because they were unrepresented by a particular union or any
union in their prior employment. In its decision, the Board
acknowledged that the union was legitimately concerned about
its duty to the employees it already represented. The Board
nevertheless followed its earlier decisions in Whiting Milk, as
well as other relevant cases,6 in holding that “in the context of a
unit merger, a union and an employer are not lawfully permit-
ted to discriminate against all, or in this case, some of the
merged employees on the basis of their previously unrepresent-
ed status.” Interstate Bakeries, supra at 16.
Counsel for Local 727 argues that the facts in Interstate Bak-
eries are not present in the instant matter. Counsel asserts that
in Interstate Bakeries, there were three distinct units and that all
bargaining units were merged into one new unit. Counsel
maintains that in the instant case, all employees merging into
the already existing Cicero unit were treated the same. Fur-
thermore, Local 727 asserts that there is not a new unit in the
instant matter because the Local 705 dissolved and the Roselle
employees were transferred into the already existing Local 727
unit. Although there is no dispute that Local 705 eventually

6 Teamsters Local 435 (Super Valu, Inc.), 317 NLRB 617 fn. 3
(1995); Teamsters Local 480 (Hilton D. Wall), 167 NLRB 920, 920 fn.
1 (1967); Woodlawn Farm Dairy Co., 162 NLRB 48, 50 (1966).
ceased to represent the Roselle employees after they were relo-
cated to the Hodgkins facility, there was nevertheless a merging
of the two groups of employees into one bargaining unit at the
Hodgkins facility. The fact that Local 705 relinquished its
representation of the Roselle employees does not negate the
fact that employees from two previous bargaining units at two
separate locations were joined together at a new location to
perform work directed by the employer. Local 727’s argument
that there was not a merger is a distinction without a difference
with respect to these circumstances.
Furthermore, in its decision in Interstate Bakeries, the Board
actually addressed this same issue. In his initial decision in the
case, the administrative law judge did not find a violation, hold-
ing that the union discriminated based on unit rather than union
seniority. The judge relied on the fact that the union had not
said or done anything that could be deemed inconsistent with
the union president’s express rationale for the union’s treatment
of the previously unrepresented employee as a new unit em-
ployee. Furthermore the judge observed that the union in ques-
tion had always required bargaining unit members who left and
then returned to forfeit their unit seniority and come back into
the unit at the bottom of the seniority list. The Board found the
judge’s analysis to be flawed as it failed to recognize that nei-
ther unit continued to exist as it had before, once all of the em-
ployees were merged into a single unit under a collective-
bargaining agreement for employees previously represented.
Interstate Bakeries, supra at 19.
Local 727 argues there is no evidence that it was motivated
by any hostile, invidious, irrelevant, or unfair considerations.
Local 727 asserts that it simply entered into an agreement with
GES that related to overall seniority that recognized and appro-
priately applied the definition of seniority in the collective-
bargaining agreement that was already in place. Notwithstand-
ing Local 727’s assertion, I also note that proof of good faith on
the part of a union is not a defense to a charge based on the
duty of fair representation since arbitrary conduct without evi-
dence of bad faith has been found to constitute a breach of the
duty. Barton Brands, Ltd. v. NLRB, 529 F.2d 793, 800 (7th Cir.
1976).
In reaching a decision in this case, I am aware of the fact that
in matters of labor law a respondent may be found to have act-
ed unlawfully, and yet ironically, there is no obvious counter
action that is clearly mandated. Certainly, as Local 727 points
out, a union may lawfully affect employees’ seniority without
violating the Act and such action may even involve endtailing
as a means of reconciling the seniority for employees in a
merged unit. In determining that Local 727’s actions violate
the Act, I cannot say with certainty that Local 727 was legally
required to agree to dovetailing or sandwiching the seniority for
the Roselle employees. I can only determine that the record
supports a finding that Local 727 took the actions that it did
because the Roselle employees were not members of Local 727
before the merger. Thus, it is the grounds for Local 727’s ac-
tion, rather than the specific action, that triggers the violation
with respect to the specific facts of this case.
Therefore, based on the record evidence described above, I
find that since about February 2012, Local 727 has failed to
fairly represent employees Wohlardt, Kasper, Carl, Gajewski,
TEAMSTERS LOCAL 727 (GLOBAL EXPERIENCE SPECIALISTS, INC.) 73
and Grung by entering into an agreement with GES that caused
these employees to be entailed on the Hodgkins master seniori-
ty list which changed their seniority to that of new hire status.
Additionally, I find that about February 2012, Local 727 at-
tempted to cause and caused GES to endtail these same em-
ployees on the Hodgkins seniority list and change their status to
new hire. The record reflects that Local 727 did so because of
the length of membership in Local 727. Accordingly, I find
that Local 727 has violated Sections 8(b)(1)(a) and (2), and 2(6)
and (7) of the Act.
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Local 727 and In-
ternational Brotherhood of Teamsters Local 705 are labor or-
ganizations within the meaning of Section 2(5) of the Act.
2. Global Experience Specialists, Inc. (GES) is an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
3. By entering into an agreement with GES that caused Jerry
Wohlardt, Daniel Kasper, Raymond Carl, Frank Gajewski, and
James Grung to be endtailed on the Hodgkins master seniority
list and changing their seniority to new hire status, Local 727
violated Section 8(b)(1)(a) of the Act.
4. By requesting GES to entail Jerry Wohlardt, Daniel
Kasper, Raymond Carl, Frank Gajewski, and James Grung on
the Hodgkins master seniority list and change their status to
new hire, Local 727 violated Section 8(b)(2) of the Act.
REMEDY
Having found that Local 727 has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
Local 727 shall make whole,7 with interest, Jerry Wohlardt,
Daniel Kasper, Raymond Carl, Frank Gajewski, and James
Grung for any loss of earnings or other benefits that they may
have suffered for the period of time in 2012 when their seniori-
ty was discriminatorily endtailed to the bottom of the GES/727
master seniority list in accordance with the method set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).
To the extent that GES and Local 727 have not already done
so, Local 727 shall rescind its agreement for the above-named
employees to be endtailed at the bottom of the GES/727 master
seniority list. To the extent that GES and Local 72 have not
already done so, Local 727 shall withdraw its request that the
seniority of these employees be endtailed into the GES/727
master seniority list.
[Recommended Order omitted from publication.]

7 The record reflects that the General Counsel and GES entered into
a settlement agreement to resolve the allegations in Cases 13–CA–
75013 and 13–CA–75014, however, the details of that settlement were
not included as a part of the record in this matter. To the extent that the
Board’s settlement with GES provides for joint and several liabilities,
the remedy includes Local 727’s obligation for joint and several liabili-
ties. Otherwise, Local 727 is responsible for fully remedying any loss-
es resulting from the discrimination found above. The procedure for
determining the exact amount of liability owing by Local 727 is there-
fore left to the Board’s compliance function.