Warehouse Union Local 860

National Labor Relations Board - Board Decisions

Jan 14, 1970

180 N.L.R.B. 720 (N.L.R.B. 1970)

720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehouse Union Local 860, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and
Nickolas Cipy . Case 20-CB-1637
January 14, 1970
SUPPLEMENTAL DECISION AND
ORDER
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
entire record in this case, including the Trial
Examiner's Supplemental Decision, the exceptions
and briefs, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On November 7, 1967, the National Labor
Relations Board issued an Order in the
above-entitled proceeding,' finding that the
Respondent had discriminated against Nickolas
Cipy in violation of 8(b)(2) and (1)(A) of the
National Labor Relations Act, as amended, by
refusing to permit him to register on the
out-of-work list maintained in the operation of its
exclusive hiring hall upon his applications made on
January 17, 1967, and March 1, 1967, and that it
accordingly discriminated against Nickolas Cipy for
the period from January 17, 1967, to April 3, 1967,
the date he was permitted the use of the hiring hall.
The Order directs Respondent to make Cipy whole
for any loss of earnings suffered by reason of such
discrimination. It was further found that subsequent
to May 8, 1967, Respondent maintained a procedure
of giving preference to members of the Union in the
selection of persons to be referred to work and
recommended that the discriminatee be made whole
for any loss of earnings he may have incurred as a
result of such discrimination against him as a
nonmember.
A Backpay Specification and Notice of Hearing
were issued by the Regional Director for Region 20,
and pursuant thereto a hearing was held on April
22, May 7, 8, and 19, 1969, before Trial Examiner
Allen Sinsheimer, Jr., for determination of the
amount of backpay, if any, due the discriminatee.
On August 5, 1969, the Trial Examiner issued the
attached Supplemental Decision, in which he found
that the discriminatee was entitled to the amount of
backpay therein set forth covering the period
January 17, 1967, to April 3, 1967, with interest.
The Trial Examiner further found that no backpay
was due the discriminatee for the period May 8,
1967, to July 27, 1968. Thereafter, the General
Counsel filed exceptions to the Supplemental
Decision and a supporting brief. The Respondent
filed a brief in support of the Supplemental
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
'In the absence of exceptions, the Board adopted the Trial Examiner's
findings , conclusions , and recommendations.
SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent,
Warehouse Union Local 860, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, San
Francisco, California, its officers, agents, and
representatives , shall pay to Nickolas Cipy as net
backpay the amount determined to be due by the
Trial Examiner in his attached Supplemental
Decision.
TRIAL EXAMINER'S DECISION IN
SUPPLEMENTAL BACKPAY PROCEEDINGS
STATEMENT OF THE CASE
I. BACKGROUND
ALLEN SINSHEIMER , JR., Trial Examiner. On October 5,
1967, Trial Examiner Stanley Gilbert issued his decision
in the above-captioned case , finding that the Respondent
had engaged in certain unfair labor practices in violation
of Section 8(b)(2) and (1)(A) of the Act. On November 7,
1967, the Board issued an order in the absence of
exceptions adopting in full the findings, conclusions, and
Recommended Order of the Trial Examiner.
The Trial Examiner's decision in that case found that
Respondent had discriminated against Nickolas Cipy by
refusing to permit him to register on the out-of-work list
maintained in the operation of its exclusive hiring hall
upon his applications made January 17, 1967, and March
1, 1967, and that it accordingly discriminated against Cipy
for the period from January 17, 1967, to April 3, 1967,
the date on which he was permitted the use of the hiring
hall. There was apparently, no proof or evidence of
discrimination between April 3 and May 8, 1967. The
Trial Examiner further found that subsequent to May 8,
1967, Respondent maintained a procedure of giving
preference to members of the Union in the selection of
persons to be referred to work and recommended that
Cipy be made whole for any loss of earnings he may have
incurred as a result of such discrimination against him as
a nonmember. He also found, based on the testimony
adduced before him in the hearing that there was no
evidence that such union procedure had resulted in any
discrimination against Cipy. However, he concluded that
it was possible that until such procedure were abandoned
that it might result in discrimination against Cipy. Said
procedure consisted of separating members and
nonmembers by having members' names and
qualifications set forth on white cards and nonmembers'
180 NLRB No. 113
WAREHOUSE UNION LOCAL 860
on yellow cards. The Trial Examiner found that the Union
admitted that it first examined the cards of members and
if none were found with the necessary qualifications, it
then examined the yellow cards of nonmembers. The Trial
Examiner concluded that although the record would not
support a finding that the practice resulted in any specific
instance of discrimination against Cipy, that, since Cipy
was not a member, the maintenance of such practice
would tend to grant preferential treatment to members
"and constituted an attempt to discriminate against him in
violation of . . . the Act." The Trial Examiner added that
in making this finding he did not rely on the somewhat
arbitrary and haphazard method which the Union used to
select men for referral.
The Trial Examiner's Recommended Order provided
that the Respondent should cease and desist from: "(a)
Refusing to permit Nickolas Cipy use of its exclusive job
referral system, because of his exercise of rights
guaranteed under Section 7 of the Act; (b) Discriminating
against Nickolas Cipy or any other non-member of the
Union, using the Respondent's exclusive job referral
system, by giving preference to members of the Union in
selection of individuals to be dispatched." (Emphasis
supplied.)
The order further provided for the following affirmative
action by Respondent:
(a) Make Nickolas Cipy whole for any loss of
earnings he may have incurred by reason of its
discriminatory refusal to permit him the use of its
exclusive hiring hall during the period from January 17,
1967 to April 3, 1967.
(b) Make Nickolas Cipy whole for any loss of
earnings he may have incurred by reason of
Respondent's maintenance of a procedure by which
preferential consideration is given members of the
Union for job referrals. [Emphasis supplied.]
The instant case was based on a Backpay specification
issued January 3, 1969.'
Hearing on the specification and answer thereto was
held on April 22, May 7, 8, and 19, 1969.1
Upon the entire record, including consideration of the
briefs filed by the General Counsel and the Respondent,
and upon my observation of the witnesses, I hereby make
the following findings, conclusions and recommendations:
11. THE INSTANT CASE
A. In General and Contentions
The backpay specification in the instant case alleged
that there were two separate periods of backpay involved.
The first was for the period from January 17, 1967,
through April 3, 1967, the time during which Cipy had
been refused the use of the Union's register. The second
period involved was from May 8, 1967, through July 26•,
1968.' Total backpay claimed amounted to $5,507.
The specification was amended at the hearing to include a provision (D)
outlined "Pension Benefit" covering certain pension benefit contributions
in the language set forth at p. 9 of the transcript of proceedings on April
22, 1969. An exhibit relating thereto setting forth computations of Pension
contributions was received as General Counsel's G.C. Exh. 2(g) on May 7,
1969, during the hearing.
'It was stipulated that the entire record in the original case was
incorporated by reference and all of such record may be considered herein.
I also note an obvious transcript error at line 20, page 152 , of the May 7,
1969, transcript herein which refers to July 12, 1967. This date should read
June 12, 1967.
'On July 27, 1968, Cipy had been reinstated as a member in the Union
721
The second period of backpay claimed, accordingly,
includes the period from May 8, 1967, through July 11,
1967, which had previously been covered by the Trial
Examiner's Decision. The General Counsel and the
Charging Party contend that the Trial Examiner in
dealing with this period merely considered the evidence
offered which he found did not establish a violation but
that this finding was not final on the issue of violation.
Respondent, on the contrary, takes the position that the
Trial Examiner's Decision is conclusive that there was no
discrimination between May 8 and July 11, 1967. Further
evidence was adduced herein concerning said period to be
discussed hereafter.
Shortly after July 11, the Union changed its practice
with respect to the separate use of white cards for
members and yellow cards for nonmembers so that all
cards were the same. Respondent accordingly contends
that such removed the discriminatory aspects that the
Trial Examiner had found in the original case. The
General Counsel asserts that this change effected no real
difference. The General Counsel contends that the
maintenance of a discriminatory system of referral as
found by Trial Examiner Gilbert placed the burden of
proof on Respondent to show that "at some time after
May 8, 1967 its referral system was revised to eliminate
the discriminatory preference given to members over non
members." The foregoing contentions will be discussed in
connection with consideration of evidence hereafter.
The Union additionally claims that at a subsequent
period which it asserted was about February 1968 that its
referral practice was changed so that workers would call
the Union daily for available jobs listed by employees and
those who called would be referred to whatever jobs were
available, leaving to the employer to select whichever
applicants he wanted, and presumably the Union would
then be free of any claim of discriminatory referral.
Evidence as to the date on which this change first
occurred will be considered hereafter.
The General Counsel also asserted that in a matter
involving the Planters Peanut Company there had been
specific evidence of discrimination against Cipy by the
Union after it had referred him to Planters Peanut Co. for
work following the hearing in 1967. This particular
incident formed the basis of a charge, complaint, and
settlement agreements involving both the Union and the
Planters Peanut Company. Over the protest of the
Respondent, the Trial Examiner permitted evidence to be
adduced as to the matters involved in the Planters Peanut
case.
The General Counsel submitted a backpay specification
covering the period involved, using as a basis for
computation a period after Cipy was reinstated as a union
member, namely, from July 27, 1968, to November 30,
1968. The General Counsel asserted that since there were
no persons comparable to Cipy who had been referred to
employment during the period in question, such a basis
could not be used. The General Counsel also claimed that
from which he had been previously expelled, following a lawsuit in the
Federal District Court.
This was not on the basis of redetermining the merits of the Planters
Peanut settlement , but rather as part of the overall picture involving Cipy's
employment and the Union' s attitude thereto during the backpay period I
shall not make any reresolution of the Planters Peanut settlement . Neither
will I draw any inferences as to what effect, if any, such may have had on
Cipy's subsequent employment at Planters Peanut Co since the settlement
presumably resolved that The use made of such evidence will be confined
to what it may bear on the general attitude and motivation of the Union
with respect to its referral of Cipy to work during the period involved.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was no other satisfactory basis except to use one
involving Cipy which followed his reinstatement. It should
be noted that Cipy during a large part of 1965 was at
odds with and after December 28, 1965, and throughout
1966 was expelled from the Union and therefore use of his
work record during such time would not form a basis.
The period from January 17 to April 3, 1967, might
have been indicative of some work that he would have had
during the time, but the details thereof were not set forth
since backpay for this period was resolved by settlement
at the hearing. The parties arrived at this settlement after
studying certain available records and concluding that
Cipy would have worked at some times therein. This
settlement amounted to $650 which sum included
payments that are to be made to the union pension fund
in a manner to be agreed upon by the parties. I shall
make recommendations as to remedy and order for this
period hereafter. The Union claimed that interest should
not be paid on any amount found due herein because it
asserted the Region had not proceeded expeditiously with
respect to resolution of the backpay due Cipy. For reasons
set forth hereafter, I do not agree with this contention
concerning interest.
It also developed during the hearing that records of job
referrals following July 11, 1967, were not retained by
Respondent. Apparently the practice following a job
referral was to destroy the registration card and then
execute another upon termination of employment. The
General Counsel accordingly can point to no available
records on the part of the party, Respondent, who made
the referrals.
Respondent, on the contrary, asserts that it no longer
maintained a discriminatory system as to Cipy since
shortly after July 12, 1967, when it changed its system to
use the same kind of cards for all persons. Uncontradicted
testimony indicated, and I find, this occurred within a day
or two after the close of the hearing in the original case.
Accordingly, Respondent contends it could not be charged
thereafter with even maintaining the discriminatory system
found to be a violation. The Respondent also argues that
at no time between May 8, 1967, and July 27, 1968, could
it be found guilty of discrimination in violation of the Act
without proof of actual discrimination. Further,
Respondent asserted after February 1968 it adopted a
system whereby workers called the union office daily for
referral to whatever jobs were available and that this
latter system was entirely nondiscriminatory. In
connection with the foregoing, I first note that the
evidence which I shall set forth hereafter does not support
the Union's claim as to establishment of this system until
at least July 1968 and more probably October 1968 which
would be after Cipy was reinstated in the Union on July
27, 1968. More to the point, the Respondent also claims
that it did not discriminate against Cipy during the period
from July 11, 1967, to July 26, 1968. The evidence
relating thereto will be considered in detail hereafter. The
General Counsel, of course, asserts the contrary.'
In addition to the contentions and evidence with respect
to whether or not the Union continued to maintain a
discriminatory system and/or continued to discriminate,
'Respondent particularly emphasizes that the Trial Examiner in the
original case did not rind that the system of white and yellow cards had in
fact resulted in any discrimination, but rather that it might cause
discrimination . Respondent further asserts that after it changed from a
system of white and yellow cards to cards that were all alike this aspect
would no longer exist . Respondent concludes by contending that it did not
discriminate as to Cipy in work referrals at any time from May 8, 1967,
through July 27, 1968.
the Union also claims that the General Counsel's formula
for determining backpay is erroneous, even assuming that
there had been discrimination in that the General Counsel
had selected a high earnings period of some 4 months,
namely July 27 through November 1968. The Respondent
claims that if a backpay base period were to be used, it
would be unfair to use the high period selected by the
General Counsel and not take into account the months
following which were lower-assuming there had been
discrimination. This would reduce the amount of backpay
and, in my opinion, would have to be considered if it were
concluded that the Respondent had, in fact, continued to
discriminate against Cipy.
B. The Issues
The issues would include the following: (1) The question
of interest on any amount of backpay awarded; (2)
resolution as to the time period from May 8 to July 11,
1968, including whether the Trial Examiner's decision
therein was final, and if not whether evidence
adduced herein (together with the prior evidence) would or
would not establish that the Respondent had or had not
discriminated against Cipy and accordingly whether it was
liable or not for any backpay up to July 11; (3) whether
the change in the use of cards shortly after July 12, 1967,
would reflect a nondiscriminatory policy and absolve the
Respondent from liability in the absence of specific proof
of discrimination; (4) whether or not it was proper to
consider herein evidence related to the Planters Peanuts
case; (5) if so, what effect such evidence relating thereto
may have herein; (6) whether or not Respondent did
discriminate against Cipy during the period July 11, 1967
through July 26, 1968. In this connection there will be
considered (a) the jobs to which Cipy was in fact referred;
(b) the Planters Peanuts case situation; (c) the period
during which Cipy was not referred to any jobs; (d) the
two incidents in which Cipy declined to accept jobs to
which the Union sought to refer him; and (e) evidence, if
any, as to availability or lack of availability of jobs based
on all the evidence, including Respondent's testimony,
Cipy's testimony, etc. (7) There will also be considered
evidence relating to the question of willful loss and Cipy's
efforts to obtain work together with requirements of the
Unemployment Compensation Department of the State of
California. In addition there is also the matter of the
General Counsel's contention concerning the backpay
formula and its applicability herein.
C. The Facts and Evidence
Before considering the evidence adduced by the parties,
it should again be noted, as previously stated, that the
Trial Examiner's Order in the original case found certain
conduct to be violative of the Act. He found one period
when Cipy was not allowed to register to be violative.
This period was settled in the instant case at the hearing.
The Trial Examiner also found a subsequent period to be
violative of the Act because the method followed by the
Respondent tended to discriminate against Cipy. The
Examiner did not conclude that Cipy had in fact been
discriminated against , but rather that the method would
tend to discriminate against him . It would appear from
the latter that the order, as applied in the instant case,
would cover discrimination which actually did occur and
form the basis for a backpay remedy for any such
discrimination . Whether discrimination may be presumed
and the burden of rebutting such presumption placed on
WAREHOUSE UNION LOCAL 860
Respondent as the Genera l Counsel appears to contend is
one question. Respondent , of course , contends that some
evidence must be adduced herein that such discrimination
had in fact occurred.
1. The period May 8, 1967, to July 11, 1967
For the first part of the period May 8, 1967, through
July 27, 1968, namely May 8, 1967, through July 11,
1967, it is not necessary to resolve whose position is
correct since dispositive of the matter is specific evidence
with respect to referrals to work of Cipy and others,
which was adduced both before Trial Examiner Gilbert
and herein. In addition to the finding in the prior case by
Trial Examiner Gilbert that no discrimination in fact took
place between May 8 and July II, the evidence adduced
herein would not establish such. I therefore find and
conclude that no discrimination as to Cipy by Respondent
has been established for the period May 8, 1967, to July
11, 1967, and accordingly that no backpay is due for such
time.
In this connection I have noted the following evidence
adduced in the original hearing and the instant , covering
the period May 8 to July 11, 1967: First, the record in the
original case indicates that Cipy was referred to jobs at
the following places of business during that time:
Reynolds Aluminum, May 7 or 9, 1967, Macy's, June 1,
1967, Allied Drug, June 6, 1967, Samuel Cabot, June 13,
1967. An exhibit therein also shows a referral to Davis
Cordage on June 7, 1967, but testimony relative therein
both in the original case and the instant case reflected that
the correct date should have been July 7, 1967. Testimony
was also adduced at the original hearing concerning other
available jobs during the period May 8 through July I I
which Cipy was not referred to for various reasons which
Trial Examiner Gilbert found valid. It should also be
noted that the complaint in the original case had been
amended at the hearing to include allegations up to June
13, 1967, and that the Trial Examiner had treated the
issues raised as litigated to the dates of hearing July 11
and 12, 1967. Also in the instant case it was brought out
that the Respondent was on strike from June 12, 1967, to
July 1, 1967, which involved most employers with whom it
had contractual relations and hence it was generally not
making referrals during that time with apparently the
exception of Cipy to Samuel Cabot. While there was some
contradiction in the testimony of Union President Aguirre
as to how this occurred, it appears from Aguirre's final
testimony relative thereto that Cabot was a small
independent operation which needed a man for a day and
Cipy, who was not picketing or participating in the strike,
was sent.
2. The period from July 11, 1967, to July 27, 1968
According to the uncontradicted testimony of Aguirre,
which I credit, within a day or two following the end of
the hearing July 12, 1967, Respondent changes its method
of registration so that it no longer had separate cards for
union and nonunion members but used the same cards for
all applicants .' Respondent argued that therefore its
method of referral was no longer discriminatory . It might
accordingly be contended that the prior proceeding was
thereby ended and the instant proceeding based thereon is
not applicable to Respondent, but that a separate charge
should have been filed. However, I believe that the scope
of the orders in the prior case may be sufficient to cover
the alleged conduct of Respondent herein, and on that
723
basis I am considering what Respondent's conduct was
after July 11, and more particularly whether or not it
discriminated against Cipy in violation of the orders
rendered in the original proceeding.
In this connection it should be noted that the
Respondent's conduct shortly after July 12, when it
changed its cards from white for members and yellow for
nonmembers to one kind of card for all persons, was as
follows, according to Respondent's president, Aguirre.
. members or nonmembers would come in the office
and fill out a card with their name and qualifications
and if they were members, where they worked before,
and so forth and we filed these cards and then as jobs
came we try to get the people with the qualifications for
the particular job and then let the employer hire
whoever he thought had the best qualifications.
The Union would then notify the qualified workers by
phone of the available job or jobs. The card was retained
until the worker went on a job. There is some conflict
between Aguirre's earlier testimony on initial examination
by the General Counsel and his later examination by
Respondent's counsel and also General Counsel as to
whether applicants had to reregister in person or by
phone. Aguirre at first said they reregistered-by phone.
Subsequently, he testified they were required to come in
and reregister in their own writing. However, in Cipy's
case it appears from his testimony that he in fact did
reregister by phone either the same day or the day after
he was laid off from a job. Cipy testified no one told him
he was required to do more than telephone to reregister.
The- General Counsel contends that this latter somehow
discriminated against Cipy throughout the second period
of backpay. Actually it could equally be argued that it
favored Cipy rather than discriminated against him.'
Following July 11, the record reflects that the Union
referred Cipy to a number of different jobs. In fact, the
record evidence reflects only one job to which Cipy was
sent to which he was not referred by the Respondent, but
by another union . That was Pacific Maritime Association,
on July 21, 1967, where he worked for 8 hours. More
particularly, the Union referred Cipy to the following jobs
after July 11, 1967: U.S. Tobacco Company, on July 16,
for 8 hours; Standard Brands, Incorporated (Planters
Peanuts ), weeks of August 6, 38.75 (hundredths) hours,
August 13, 40 hours, August 20, 40 hours, August 27, 40
hours, September 3, 40 hours; then on September 8, he
was referred to Western MacArthur Company for 8
'During this period Cipy paid a fee for use of Respondent 's referral
facilities.
'At a Federal Court hearing on April 2, 1968, Aguirre had testified (as
he repeated herein ) that the Union would telephone qualified workers as to
job availability but that they were also to phone in if the Union didn't call
them . Aguirre testified they had called Cipy several times but he wasn't at
home . Cipy testified that the first he knew of any requirement of calling in
once a week was when he heard Aguirre testify at the Federal Court
hearing on April 2, 1968. According to Cipy's testimony in the original
hearing , he was present at the hiring hall May 8, 1967, when Aguirre
announced they were going to change the system and go by a card system.
According to Cipy, Aguirre at that time said they were to leave their name
and phone number and be given a card , the hall was being closed and
"then they would call by telephone and you would register by telephone."
In connection with the above , it might be noted that Cipy lived in a hotel
with a phone extension With respect to the matter of phone messages,
there was some question raised as to permanency of clerks at the hotel.
Union Representative Patterson testified that he had called Cipy' s hotel,
numbers of times but they had changed clerks so often he had a hard time
getting in touch with Cipy Cipy, however, insisted he received messages
when he wasn 't there
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours; weeks of September 21, Thompson Brothers, Inc.,
32 hours, September 28, 41.5 hours, October 5, 40 hours,
October 12, 40 hours, and the record shows another 8
hours on the same week, October 12, to Thompson
Brothers, on November 9, 1967, Cipy was referred to
Planters Peanuts again for 6 1/2 hours, and on November
19 to Planters Peanuts for 6 1/2 hours. As previously
stated, the charges in the cases involving Planters Peanuts
Company and the Respondent were settled, so that
whatever lost time or whatever damages Cipy might have
suffered from alleged discrimination there, if any, were
disposed of by the settlement in those cases, namely Board
Cases 20-CA-4668 and 20-CB-1749
Following this, Cipy does not show employment
through the Union until pay periods ending April 4, 1968,
when he worked for Thompson Brothers for 16 hours;
April 11, 1968, 40 hours work for Thompson Brothers,
April 15 for Thompson Brothers, 24 hours; April 30, for
James Hill and Company, 8 hours; and for Thompson
Brothers on May 2, 16 hours; May 9, 32 hours; also
another 8 hours is shown for that week for Thompson
Brothers, May 16, 8 hours; May 23, 40.75 hours; May 30,
24 hours; June 6, 15 hours; June 13, 32 hours; June 19, 32
hours; and then in July up to the time of his reinstatement
in the Union, weeks of July 5, 1968, work for Owens
Corning Fibreglass Corp., 32 hours; July 12, 40 hours;
July 19, 40 hours; and July 26, 45.5 hours.
In connection with the question of the Union's alleged
discrimination against Cipy, it was the Union's contention
that during the months of December, January, February,
and March, the work normally was slow and it was for
that reason that Cipy was not sent on any jobs. The years
1965 and 1966 were not set forth in evidence as to Cipy
because, as set forth, he was part of the time at odds with
Respondent and on December 28, 1965, he had been
expelled from the Union. As for the winter of 1967, there
were allegations initially in the complaint that he would
have worked on certain jobs during a part of that time,
but this matter was resolved by settlement of his
entitlement for the period January 17 to April 3. The
settlement could not properly be used as a basis for
resolving definitely that there would have been a specified
amount of work during that period. It might be noted that
the General Counsel's own allegations covering the period
do not allege that Cipy would have worked continuously
during the period from January 17, 1967, to April 3, 1967.
In fact, the alleged backpay claimed due from January 26,
1967, through the second of March 1967, amounted to a
total of 64 hours with a greater amount of time thereafter.
This does not mean that this is proof of the time that
Cipy would have worked It is merely pointed out to
reflect that the General Counsel's own allegations do not
claim full employment would have been had by Cipy
during such time.
In the period after Cipy was reinstated in the Union in
1968, covering the winter of 1969, it appears that Cipy
worked fairly steadily (except in February) primarily for
two different companies, but even then his work was less
than that involved in the period used by the General
Counsel, from July 27 through November 1968, as the
predicate for his backpay claim. The record reflects in
December of 1968 a lesser amount of work immediately
preceding the Christmas period with 24 hours for West
Coast Ship Chandlers, Inc., for the pay period ending
December 10; 8 hours for pay period ending December 13
for Barkoff Container; 8 hours for period ending
December 17 for C. J. Hendry; 16 hours for period ending
December 19 for West Coast Ship Chandlers. The record
further reflects 32 hours per week ending December 26,
1968, and 37.5 for the week ending January 2, 1969
(apparently full weeks), for West Coast Ship Chandlers;
Cipy worked in 1969 a regular 40-hour week in January
for West Coast Ship Chandlers Cipy worked only 23.5
hours in all in February - that being for I. F. Schnier
Company, Inc. for the week ending February 12, 1969. In
March, for the period ending March 10, he worked 40
hours that week for National Biscuit Company, and 40
hours the following, ending March 19, with another 24
hours also shown for the period ending March 19. This
actually represented 40 hours on March 10, 11, 12, 13,
and 14, and 24 hours on March 17, 18, and 19. Cipy
worked 16 hours the week ending March 28 for the same
company. The latter would indicate that in 1969 he
worked only 23 1/2 hours from January 30 to March 3 --
the first Monday in March 1969.
At a minimum the foregoing appears to indicate that
the General Counsel's basis of computation of backpay
would require adjustment. However, the figures also lend
some support to the Respondent's contention that
December, January, February, and March were slower
months. There is no specific evidence that others worked
during those months in late 1967 and early 1968, although
apparently there was no one who was exactly comparable
to Cipy.e The only other casuals (so called) were Leonard
Day and John Harbison, who frequently obtained work on
their own from Circus Foods Company, which would call
them directly. They apparently were not generally
available for referral to other employment. It further
appeared from the record that Cipy was offered a job in
December 1967 for a day's work in South San Francisco,
which he turned down, and also work in January 1968 in
South San Francisco which he also did not accept. The
details of these will be discussed hereafter. Cipy, when
first testifying, was asked about his seeking work during
this period independent of the Union and indicated that he
had sought work but was unable to name any place that
he went to for employment. Subsequently, Cipy named
two places where he sought work, specifically, Lancaster
where he saw Jack....., the shipper who said they had
nothing and he thought he called Acme Warehouse but
couldn't remember whom he spoke to. However, he could
not say when he specifically sought work or except at
Lancaster to whom he spoke concerning work. Based on
his inability at first to recall any places, and then his
vague recollection when questioned again about 10 days
later when he resumed the stand, there is a question as to
what work, if any, was independently sought by Cipy
during the months of December 1967 and January,
February, and March 1968. As for this latter, it appeared
from the record that the State Department of
Employment did not refer Cipy to any specific jobs, but
was apparently satisfied from the combination of his use
of the union hiring facilities and its interrogation of him
on occasion as to his work efforts, that he should receive
'According to Aguirre , after the closing of the hiring hall on May 8,
1967, most applicants referred by the Union eventually obtained regular
jobs (which would involve acquisition of seniority). Cipy did not In this
connection , I am discussing post the Planters Peanuts case where I am
finding that the union there advised not to give Cipy seniority. However, I
am also concluding that in view of the settlements of charges involving that
case , any direct effects thereof have been disposed of. I have accordingly
limited my reference thereto as set forth post. Aguirre also testified that
prior to closing of the hiring hall there had been a substantial number of
persons who showed up there for occasional work but apparently nothing
more
WAREHOUSE UNION LOCAL 860
his unemployment compensation benefits during the
period.
A brief consideration of the job employment referrals
offered Cipy by the Respondent in December 1967 and
January 1968 would appear to be in order: On December
5, 1967, Cipy was contacted by Union Representative
Patterson about a job, apparently for a day, in South San
Francisco at a plant across from Coyne Cylinder. There is
testimony concerning how long it would take to get from
Cipy's abode to the job and as to means of transportation.
According to Cipy, Patterson told him he needed a man
right away and it would have taken him 11/2 to 2 hours
to get there. On January 15 or 16, 1968, Aguirre called
Cipy about a job at Coyne Cylinder in South San
Francisco. Cipy said he told Aguirre he had once worked
there (in 1965) and been laid off and that a Board
investigator (in another case) had told him someone at the
Company didn't like him. According to Cipy, Aguirre
replied, "He said I didn't have to go, that's all. He didn't
tell me I had to go or anything." Aguirre subsequently
denied telling Cipy that he didn't have to go According to
Aguirre, he told Cipy he had a job for him at Coyne
Cylinder. Cipy told him he didn't want to go there as they
didn't want him. Aguirre told Cipy "there's a job ... do
you want to go or don't you'? ..." Cipy responded, "No I
won't go up there."
Although Cipy had not worked often in South San
Francisco, which is 8 to 10 miles from his place of
residence, he had worked there in the past at Owens
Corning Fibreglass, Samuel Cabot and James Hill
Furniture. With respect to the conflict in the testimony of
Cipy and Aguirre, I do not consider it necessary to resolve
this since the fact remains that Cipy was offered a job and
didn't take it.
One other incident relied on by the General Counsel
included alleged discriminatory action by Respondent in
the Planters Peanuts case during the latter part of 1967
while Cipy was employed at Planters Peanuts. This
resulted in the settlements referred to, supra, including
both Respondent and the Employer by the terms of which
Cipy received a sum of money and the parties to separate
settlement agreements agreed not to engage in certain
conduct.
The only evidence relating to Planters Peanuts to be
considered here is as follows: Mrs. Desch, a production
coordinator at Planters Peanuts who submitted requests
for employees to the Union, testified that she had
previously been told by Union Respresentative Patterson
about 2 or 3 weeks after Cipy commenced work and
subsequently by telephone by Aguirre who asked if Cipy
was still there, that the Company should not let Cipy
obtain seniority because they would have trouble with
him. The union contract provided for seniority after 90
days. Desch had informed Patterson this wouldn't happen
because Cipy was only hired as a vacation replacement.
The union representative denied the aforesaid statements.
Patterson admitted he had been at the plant with
another representative, McBride, and said he spoke to
Desch about obtaining a new seniority list. McBride was
not called as a witness. Aguirre denied asking Desch
whether Cipy was still employed and denied telling her not
to let him work for 90 days. Aguirre testified he had one
conversation with Desch after charges were filed in which
she told him, "she was sorry what was going on, she was
nervous and she couldn't help it." Mrs. Desch's
supervisor, Arthur Carbon, testified that Mrs. Desch had
informed him that the representatives had been at the
plant or had called concerning Cipy but that she had not
725
told him what the discussion was about except that she
said "I received a call from the union to find out whether
Cipy was still with us." He also asserted that the
Company had not employed Cipy as a permanent
employee but merely as a replacement during vacations.
The Union contends that Mrs. Desch's testimony should
not be credited relying in part on the failure of the
supervisor to corroborate her testimony, and Aguirre's
testimony about her saying she was sorry, etc. Even if the
latter were true it would not negate Desch's testimony.
Neither does Carbon's testimony which, in part, does
corroborate Desch that is as to whether Cipy was still
there My impression of the testimony is that Mrs. Desch
had no purpose in inventing any such story, and that she
testified in a credible manner with respect thereto. There
is little doubt that the union representatives spoke to her
about Cipy and whether he was still there and that she so
reported to her supervisor. In the light of the foregoing
and the fact also that I consider that at times Aguirre
appeared to be varying his testimony, I am crediting Mrs.
Desch."
Respondent initially claimed the current method of
referral, namely requiring employees to call daily and
sending them to available jobs, commenced about
February 1968. However, Aguirre, after first talking about
an earlier time, testified as to when the changes occurred
as follows. "it could have been June or July.i0 I'm not
sure." Union Representative Hoffman testified he
commenced work as business representative in October
1968 and indicated the card registration system was still in
effect then. It appears both from Aguirre's testimony and
Hoffman's that the card system remained in effect at least
until after Cipy was reinstated as a member. In any event,
Respondent has submitted no substantial evidence to the
contrary. I accordingly find that the card registration
system remained in effect at all times between May 8,
1967, and July 27, 1968, but with the change shortly after
July 12 to one kind of card for all applicants instead of
the white and yellow cards separating members from
nonmembers.
D. Findings and Conclusions
1. Liability of Respondent for backpay
As previously set forth, Trial Examiner Gilbert found
that Respondent's practice of using separate cards and
first resorting to the white cards of members "would tend
to grant preferential treatment to members and constitutes
an attempt to discriminate against him (Cipy) in violation
of Section 8(b)(2) and 8(b)(1)(A) of the Act."
Thereafter he concluded that by the maintenance of
such procedure, "Respondent maintained a referral
procedure which discriminated against Cipy as a
nonmember......
Trial Examiner Gilbert then recommended that
Respondent cease and desist from discriminating against
Cipy "by giving preference to members of the Union in
selection of individuals to be dispatched."
'I note that Aguirre in a number of instances varied his testimony. One
related to the method of registering workers after cards were used
commencing May 8, 1967, discussed , supra. another covered Cipy's
employment at Samuel Cabot , and still another , discussed post , involved
when the Union adopted a system of simply having workers call in daily to
see if there were jobs and then referring them to whatever jobs were
offered I also note with respect to Patterson's testimony that McBride,
who was with him at the time, was unaccountably not called as a witness
"1968
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He further recommended that Cipy be made whole for
any loss of earnings incurred "by reason of Respondent's
maintenance of a procedure by which preferential
consideration is given members of the Union for job
referrals "
However, he did not find that Respondent had, in fact,
discriminated against Cipy between May 8 and July 11,
1967, and that Cipy had suffered any loss because of
discriminatory conduct by Respondent. The General
Counsel asserts in his brief:
Given the discriminatory system of referral adopted by
Respondent on May 1967, including its total lack of
objective standards to insure fair and equal treatment to
members and nonmembers alike together with
Respondent's subsequent attempts to deprive Cipy of
his employment at Planters Peanuts the record evidence
fails to sustain Respondent's burden of proof of
showing that at some time after May 8, 1967 its job
referral system was revised to eliminate the
discriminatory preference given to members over
nonmembers. [Emphasis supplied.]
Assuming arguendo that the Respondent had a burden
to show that it had obviated the matter specifically
referred to by Trial Examiner Gilbert as forming the basis
for what might tend to discriminate, namely the use of
separate cards for members and nonmembers, the Union
did, in fact, eliminate this obvious disparate treatment by
changing from white cards for members and yellow cards
for nonmembers to one card for all persons within a day
or two after the close of the hearing on July 12. Aguirre
further testified, as previously set forth, that thereafter the
Union referred to the cards to obtain the qualifications of
employees before referring persons to work and that this
was without reference to membership. There is no
contradiction of this testimony. In this instance, for this
reason as well as the fact that Cipy was referred to
numerous jobs thereafter, I am crediting Aguirre's
testimony in this respect.
This being the case, there would appear thereafter to be
no basis for imposing a burden on Respondent to show
that it adopted a specific nondiscriminatory method of
referral or adopted standards that would literally insure
such. This is true first because the Trial Examiner's Order
in this regard was predicated solely on his specific finding
of a practice which would tend to discriminate - namely
that of separate cards for members and nonmembers and
first examining member 's cards. Second , while it is true
that Trial Examiner Gilbert did note the Union's
haphazard method of referral, he also stated that he did
not rely upon this in making his finding. Additionally, the
Board itself may not conclude that a hiring hall agreement
is per se discriminatory and therefore must contain
protective provisions to be lawful. The Board had adopted
such a position and set forth protective provisions it
believed essential in the Mountain Pacific case, 119
NLRB 883. This position and the required standards
pursuant thereto were found invalid by the Supreme Court
in the case of Teamsters Local v. Labor Board, 365 U.S.
667. It is true that said case involved a determination
based on an original claim of violation and the instant one
involves the remedial power of the Board. Whether or not
under given circumstances the Board could impose
standards or guidelines for conduct of a hiring hall by way
of remedy, it has not sought to do so herein. Rather it has
affirmed the Trial Examiner's Order prohibiting
discrimination "by giving preference to members of the
Union in selection of individuals to be dispatched." As
found, the elements relied on for such order, namely
separate cards and reference to union member's cards
first, were immediately corrected. This, of course, leaves
open the question of whether,or,not discrimination against
Cipy was otherwise effected. But it does not follow, as the
General Counsel by implication appears to contend, that
the burden of proving innocence remains on Respondent
until some unspecified or indeterminate happening occurs
- such as reinstatement in the Union.
From the foregoing it would appear that the burden
would then" be on the General Counsel to show that the
Respondent in fact had continued a discriminatory
practice as to Cipy.' T The evidence in support thereof
appears to consist of the Planters Peanuts case, supra, the
fact that Cipy did not obtain substantial employment
during the months of December 1967, January, February,
and March 1968 and the fact that the Union had no
available records as to job referrals after July 12, 1967.
Considering the foregoing: First, the Planters Peanuts
case establishes that the Union sought to prevent Cipy
from obtaining seniority there. The Planters Peanuts case
also does indicate an unfriendly attitude by Respondent
toward Cipy and, while evidentiary on the question of
discrimination, certainly does not definitely establish
discriminatory failure to refer Cipy to work. Although
improper, such conduct differs from discriminatory failure
to refer to available work. The record actually indicates
that Respondent did refer Cipy to numerous jobs as set
forth. One matter that should be clearly set forth is that
the settlement agreement forecloses anything more from
the Planters Peanuts case than the evidence referred to
and the conclusion derived therefrom. For instance,
whether or not Cipy was thereby prevented from obtaining
permanent employment is precluded by the settlement
agreement.
During the period December 1967, January, February,
and March 1968, Cipy did not obtain employment.
However, the following items would bear on this: (1) Cipy
was offered jobs in December and January which he
declined; (2) Aguirre testified that these were the slow
months of the year which testimony was corroborated by
the evidence set forth in items (3) and (4) next;1 3 (3) as
previously set forth, the General Counsel's own allegations
as to backpay due during the time from January 17, 1967,
to April 3, 1967, claimed only a small amount of time
between January 17 and approximately March 14, during
which Cipy allegedly would have performed work; (4) the
record relating to the time that Cipy worked in 1969
showed that he worked only 23 1/2 hours" from the
period ending January 30 to the period ending March 10,
1969, so that he had little employment from January 30 to
about March 4;16 (5) this latter is further corroborated by
testimony that the so-called California floor tax on
personal property or inventory has an impact during the
period from the beginning of the year up to noon on the
first Monday in March, which latter is the time set for
"After Respondent eliminated the practice of separate cards and
reference to the union members first
"Although I believe that at this juncture the burden should be on the
General Counsel to establish discrimination , I do not consider that the
ultimate findings and conclusions herein would be any different even if
Respondent had the burden of proof
"Aguirre testified credibly in this respect that there were days and weeks
during those months when no jobs were available.
"For 1. F. Schnier Company during period ending February 12.
"I am not unaware that an argument can be made that the 1969 record
does indicate that Cipy did work in January and after March 3. 1 note,
WAREHOUSE UNION LOCAL 860 727
assessing personal property or inventory.- This would
tend to inhibit employers, particularly those with
warehouse facilities, from stocking merchandise for a
period until after the effective time for assessment of such
merchandise. The latter accordingly may also partly
account for a drop in employment commencing shortly
before Christmas until after the first Monday in March.
Another factor might be the extent of extra employment
in the fall for buildup of inventory for Christmas business.
(6) The testimony of Cipy himself, as set forth, reflected
at first that he could not recall where he sought jobs and
then later that he had sought employment at two places he
could name with vague recollection but, according to him,
was not able to obtain employment. If Cipy sought
employment and was unable to obtain it, this would
further corroborate Respondent's testimony that jobs were
difficult to obtain during that period. If Cipy did not seek
employment, he would then be incurring a willful loss. (7)
Additionally, the record reflects that Cipy did not make
any particular effort to contact the Union during the
period in question with respect to ascertaining what the
job situation was.
Cipy testified as follows concerning his contacting the
Union about a job at page 247 of the transcript on
examination by the General Counsel:
Q. (By Mr. Schaefer) After you called in to register
for work with Warehouse Union Local 860, if you were
not referred to another job within the period of one or
more weeks did you usually contact them by telephone
again?
A. Yes. I would contact them within a week's period;
yes.
Subsequently Cipy testified with respect to the
conversation with Aguirre on January 15 when he did not
accept a job referral at Coyne Cylinder offered by
Aguirre. He was then asked at page 253 by the General
Counsel:
Q. Now, after that conversation with Mr. Aguirre
and during this period of unemployment did you have
any other conversations with officials of Warehouse
Union Local 860?
A. Not that I recall.
The Trial Examiner then questioned Cipy as follows:
TRIAL EXAMINER: Did you call them at all between
January 15, 1968 and April?
THE WITNESS: There was no requirement , all you
done was registered and they called you back.
TRIAL EXAMINER: What were you doing during that
period?
THE WITNESS: Oh, I just sat there and waited for a
phone call.
The foregoing accordingly corroborates the Union's
testimony that (except as offered) jobs were not available
for Cipy from December 1967 until April 1968. The
apparent inability of the Union to refer him to work then,
when it did so at other times, the payment by the State of
however, that he was offered a job in January 1968, supra, which he
declined . As for March , as set forth , supra, the General Counsel's
allegations as to 1967 claimed employment only from March 14 of that
year and Cipy was referred by the Union to work on April 2, 1968. The
significance of the matters in this footnote are at best debatable since
occurrences such as job availabilities are ordinarily not the same from year
to year.
"See Deerings California Codes, Revenue and Taxation , Section 405 and
related sections . The first Monday in March 1969 was March 3 . Cipy, as
indicated after the lull during February 1969, resumed full-time work
about March 3, 1969.
unemployment compensation indicative of satisfaction
with his work efforts, Cipy's testimony as to unavailability
of work, Aguirre's testimony as to drop in work
availability in those months, the possible impact of the
personal property or inventory tax and the record as to
Cipy's lack of employment during most of February 1969,
all tend to negate any inference of discrimination in
referral of Cipy by Respondent in December 1967 and
January, February and March 1968. Further, supporting
this conclusion are the job offers in South San Francisco
to Cipy in December and January which he did not
accept. One other item to note is that work was
forthcoming to Cipy after the Federal court hearing on
April 2, at which time a hearing was held before a Federal
judge on the question of his expulsion. Whether it is
coincidental that he would obtain employment
immediately thereafter or whether the hearing called the
attention of the Union to Cipy's unemployment or what
the situation was, it is evident that he did commence work
again shortly after April 2, 1968, for Thompson Brothers
for whom he had worked in September and October 1967.
This may also reflect the increase in work occurring after
early March, referred to by Aguirre.
Another questionable item was with respect to the
Union's records. While it may be urged that this indicates
some doubt as to support for the Union's version, it is not
mandatory that the Union maintain records under the
system it had adopted." Further, there was no evidence
that others were referred to jobs that Cipy might have
been referred to whether comparable" to him or not.
On the affirmative side of the employment question
there is no doubt that the Union after July 12, 1967,
referred Cipy to numerous jobs including. U.S. Tobacco
Company, (Circus Peanuts), Planters Peanuts, Western
MacArthur Company, Thompson Brothers, James Hill
and Company and Owens Corning Fibreglass. It also
referred him to several places set forth, supra, between
May 8 and July 11, 1967. And it sought to refer him to
two places in December 1967 and January 1968. The
record, as set forth, reflects that shortly after July 12 the
referral cards were all alike and persons treated on the
basis of qualifications. The period of unemployment from
December 1967 to April 1968 was subject to the
explanation set forth. The record lacks any evidence that
Cipy was discriminated against in any particular job
referral. In short, the General Counsel was unable to
produce a single instance of such conduct either in the
course of this hearing or in the course of the hearing
before Trial Examiner Gilbert covering the period from
May 8 to July 11, 1967.
The foregoing, while it indicates that the Respondent
was not friendly to Cipy and may raise some questions as
to Respondent's conduct, in my opinion does not establish
that Cipy was discriminated against in job referrals by the
Respondent during the period from May 8, 1967, through
July 27, 1968. 1 accordingly find and conclude that the
record does not establish that Cipy was discriminated
against during that period and that he is not entitled to
backpay therefor.
Since I have found no entitlement to backpay by Cipy
for the period May 8, 1967, to July 27, 1968, it is
unnecessary to consider the General Counsel's proposed
formula for backpay during said period.
"By contrast, an employer would be required to keep records.
"As pointed'out, there is no evidence that there were any persons who
were literally comparable to Cipy as a casual worker
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Contentions as to interest
I find no merit to the Respondent ' s contention that
interest should not run on the amount because the
Regional Office was allegedly derelict in proceeding with
the case . The Board ' s Order issued in November 1967 and
the backpay specification herein issued January 3, 1969.
Respondent claims the specifications should have issued
within 6 months . While it may be desirable for various
reasons to expedite such matters , the time here involved is
not such as to make it incumbent on the General Counsel
to come forward with an explanation . Accordingly, as a
matter of law I do not consider that it precludes the
granting of interest.
I accordingly conclude that Cipy is entitled to interest
at the rate of 6 percent per annum on the $650 backpay
agreed upon in the settlement of the first period covering
January 17, 1967, through April 3, 1967, and shall
recommend that such interest run from April I, 1967 to
date of payment.
RECOMMENDED ORDER
I recommend that the Board order Respondent,
Warehouse Union Local 860, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen & Helpers of
America to pay to Nickolas Cipy as total backpay due
herein the sum of $650 with interest at the rate of 6
percent per annum thereon from April 1, 1967, to date of
payment . It is further recommended that the Board
further order that appropriate allocation be made from
said amount of $650 to such applicable pension fund or
funds as may be involved.