Jacobs Transfer, Inc.Download PDFNational Labor Relations Board - Board DecisionsJan 19, 1977227 N.L.R.B. 1231 (N.L.R.B. 1977) Copy Citation JACOBS TRANSFER, INC. Jacobs Transfer, Inc. and Daniel George and Drivers, Chauffeurs and Helpers Local 639, affiliated with International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America; Teamster Local 639- Employers Health Trust; Teamsters Local 639- Employers Pension Trust, Parties in Interest International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local Union No. 639; Teamsters Local 639-Employers Health Trust, its Administrator, Trustees and Agents: Alfred M. Bell, Frank DeBrouse, Alvin Dobbin, Morris Davidson , Earl L. Marcey, Charles A. Hite, Louis Macijeski, Robert Moore, Pope Eberhardt ; Teamsters Local 639-Employers Pen- sion Trust , its Trustees and Agents , Frank De- Brouse, Alvin Dobbin, Morris Davidson , Earl L. Marcey, Charles Hite, Louis Macijeski, Robert Moore, Pope Eberhardt and Daniel George. Cases 5-CA-5308 and 5-CB-1639 January 19, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNINGS AND JENKINS On November 14, 1975, Administrative Law Judge Bernard J. Seff issued the attached Supplemental Decision in this proceeding. Thereafter, Respondent International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 639 (hereinafter Local 639), filed excep- tions and a supporting brief. Respondent Trusts, Trustees, Alternate Trustees, and Administrator (hereinafter Trusts) also filed exceptions and a supporting brief.' The General Counsel and the Charging Party each filed separate cross-exceptions to the Supplemental Decision of the Administrative Law Judge and supporting briefs. In addition, Res- pondents, Local 639 and the Trusts, each filed a separate reply brief to the Charging Party's cross- exceptions and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Supplemental Decision in light of the exceptions, cross-exceptions, supporting briefs, and i Respondent Trusts are Teamsters Local 639 - Employers Health Trust, its Administrator, Trustees and Agents, and Teamsters Local 639- Employers Pension Trust, its Trustees and Agents The individual Trustees of each Trust, as they appear in the caption, have been named as 1231 reply briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith.2 On January 11, 1973, in Jacobs Transfer, Inc., 201 NLRB 210, Case 5-CA-5308, the Board found that Jacobs Transfer, Inc. (hereinafter Jacobs), violated Section 8(a)(3) and (1) of the Act by unlawfully discharging Daniel George for his concerted activi- ties. Jacobs was ordered to "offer to Daniel George immediate and full reinstatement to his former job, without prejudice to his former rights or privileges" will full compensation "for any loss of earnings." On May 24, 1974, as a result of a continuing dispute over the remedy, a backpay specification and notice of hearing was issued. Under the supervision of the Regional Director for Region 5, Jacobs and George executed a compliance agreement on June 25, 1974, which was amended on July 11, 1974, providing that George would be reinstated at Jacobs' Franconia GPO night operation and that Jacobs would make George whole by tendering to the Health and Pension Trusts the amounts necessary to restore George's status, rights, and benefits under those plans. When it appeared that compliance with the agreement had been effected, the Regional Director closed Case 5- CA-5308 on July 26, 1974. This consolidated proceeding concerns the efforts by Jacobs to comply with the Jacobs decision, as implemented by the compliance agreement , and the parallel efforts by Local 639 to frustrate such compli- ance. We need not repeat here the chronology of events which preceded the issuance of the complaint in Case 5-CB-1639 on May 20, 1975, and the amended backpay specification in Case 5-CA-5308 on May 30, 1975, as they are set out fully by the Administrative Law Judge. The one clear fact that emerges from this complex and protracted proceed- ing is that Daniel George has been waiting for more than 3 years for his unlawful discharge to be fully remedied under the Board's Decision and Order in Jacobs. Despite the fact that George and Jacobs executed a compliance agreement, under the supervi- sion of the Regional Director, which outlined precise- ly the steps Jacobs had to take in order to comply with the Board's Order, George has yet to be made whole for the losses he suffered as a result of his unlawful discharge. Instead, all compliance efforts have been held hostage by Local 639 which has sought to thwart such efforts at every possible opportunity. Our primary concern in this proceeding is to effectuate the Board' s Decision and Order in Respondents and they are also encompassed by the designation "Trusts" in this Supplemental Decision and Order 2 The request for oral argument is hereby denied as the record, including exceptions and briefs, adequately presents the issues and positions of the parties 227 NLRB No. 181 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jacobs as implemented by the terms of the subse- quent compliance agreement, and to remedy the unfair labor practices which have been committed by Local 639 in its attempts to frustrate that Decision and the compliance agreement implementing it. In agreement with the Administrative Law Judge, we find that Jacobs has not complied with the Jacobs decision, as implemented by the compliance agree- ment, due to the acts of its agents, the Trusts, in refusing to accept the contributions on behalf of George. Similarly, we also find that Local 639 and the Trusts violated Section 8(b)(1)(A) and (2) of the Act by their refusal to accept the contributions on behalf of George. We agree with the Administrative Law Judge that for the purposes of effectuating compli- ance with Jacobs, as implemented by the compliance agreement, the Trusts are agents of both Jacobs and Local 639. It is clear from the record that both the Health Trust and the Pension Trust were established by agreements between the employer association, representing Jacobs, and Local 639, pursuant to the collective-bargaining agreement which preceded the current National Master Freight Agreement (NMFA) between the same parties. Under the NMFA, members of the employer association, in- cluding Jacobs, are required to submit to each Trust contributions on behalf of their employees in the amounts established by the collective-bargaining agreements. Both the Pension Trust and the Health Trust are administered by boards of trustees consist- ing in each case of four Trustees, two elected by the employer association and two appointed by Local 639. The Trustees of both funds have the authority to amend the respective Trust agreements subject to the terms of the collective-bargaining agreements. In these circumstances, the Board has consistently found that the Trusts are agents of each party to the collective-bargaining agreement.3 We also agree with the Administrative Law Judge that Local 639 violated Section 8(b)(1)(A) and (2) of the Act by causing the Trusts to reject Jacobs' contnbu- tions on George's behalf. The longstanding animosity between Local 639 President Frank DeBrouse, a union trustee for both Trusts, and George, resulting from George's opposition to Local 639's incumbent leadership, is well documented by the Administrative Law Judge. The record clearly shows that DeBrouse was instrumental in directing each Trust to reject 3 United Brotherhood of Carpenters and Joiners ofAmerica, Local #1913, AFL-CIO, et a! (Fixtures Unlimited), 213 NLRB 363 (1974), enfd in part, reversed in part, and modified in part 531 F 2d 424 (C A 9, 1976). In failing to find an agency relationship between the respondent union and the pension trust, the Ninth Circuit implied that it would have reached a different result had there been a showing that the union controlled the trust . While we respectfully disagree with the court 's finding , it should be noted that in the present case , we find , infra, that the Union did control the Trusts for the purpose of discriminating against George Moreover , we also note that the Ninth Circuit enforced the Board's Order requiring the trust there to accept Jacobs' contributions on behalf of George, even though the Trusts had been fully apprised that the contributions were made pursuant to the compliance agreement and Board Order. DeBrouse told the Trustees that George was on layoff status and that his reinstatement violated the contract. Trust Counsel Foley testified that this information regarding George's layoff status was very important to the Trustees in making their respective decisions to return the contributions. When the checks were finally returned to Jacobs, the Trustees advanced conflicting and inconsistent reasons for the rejection of the contributions. In the September 16, 1974, letter returning the Health Trust contribution, the Trustees stated that the check did not cover the full "reinstatement" period and Local 639 had not participated in the compliance agree- ment. Upon being informed that the eligibility period established in the compliance agreement qualifying George for health benefits conformed to the Trusts' own eligibility rules , the Trustees changed position and took a different course. Thus, in an October 25, 1974, letter, the Trustees complained that they had not been a party to the agreement .4 The Trustees cited for the first time their opinion that George had been in "simulated employment," thus rendering him ineligible for health benefits. The Trustees then agreed that in any event George was on layoff status, despite their knowledge that George had been reinstated pursuant to an Order of the Board. In an October 29 letter rejecting Jacobs' Pension Fund contribution, the Trustees reiterated the argument that George had been engaged in "simulated work" and the fact that neither the Trusts nor Local 639 had participated in the compliance agreement. However, for the obvious reason that the Pension Trust check was made out for the entire amount owed, the Trustees in returning it could not, and did not, contend that it was not for the full sum, as they had done initially in rejecting the Health Trust check. In these circumstances, we find that the reasons ad- vanced for rejecting both checks were pretextual and designed to obscure the true purpose behind the Trusts' rejections of the contributions-which was the denial of George's employment benefits at the urging of Local 639. Accordingly, we find that Local 639 violated Section 8(b)(1)(A) and (2) of the Act by the contributions on behalf of the discnminatee See also L & M Carpet Contractors, Inc, 218 NLRB 802 (1975); Local 80, Sheet Metal Workers Internationa l Association, AFL-CIO, et al (Turner-Brooks, Inc), 161 NLRB 229,234(1966) 4 Counsel for the Trusts, over 3 months after the contribution had been submitted , devised this argument based on Artim Transportation System, Inc., 193 NLRB 179 (1971) This case is clearly unsupportive of the Trustees' position There, the pension fund had not been named in the backpay specification , but in any event , the respondent employer there was ordered to submit the necessary contributions to the fund JACOBS TRANSFER, INC. causing the Trusts to reject Jacobs' contributions for discriminatory purposes. In view of our above findings and the remedy we provide, we find it unnecessary to consider at this time whether Local 639 violated the Act by prosecut- ing a grievance over George's reinstatement at Jacobs' Franconia facility as provided in the compli- ance agreement and thereafter filing a civil action pursuant to Section 301 of the Act to compel enforcement of the favorable disposition of that grievance. As discussed, infra, to the extent that the holdings in such proceedings are inconsistent with a Board order, the Board order takes precedence. Therefore, we do not adopt the Administrative Law Judge's recommendations with respect to the allega- tions in the complaint concerning this issue and accordingly shall dismiss that part of the complaint.5 THE REMEDY In fashioning a remedy to make George whole for the losses he has incurred as a result of his unlawful discharge and the unfair labor practices committed by Local 639, we are mindful that "Congress has invested the Board . . . with broad discretion to order a violator `to take such affirmative action .. . as will effectuate the policies of [the Act.]' 29 U.S.C. § 160(c)." N.L.R.B. v. Food Store Employees Union, Local 347, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO [Heck's, Inc.], 417 U.S. 1, 8 (1974). In order to protect George's eligibility and status under the Trust plans as an employee-beneficiary-a status which in fact he never lost-we shall order Jacobs to resubmit the contributions to the Trusts as provided in the compliance agreement and order the respective Trusts to accept such payments.6 In this regard, we find merit to the argument propounded by the Trusts that they should be compensated for any additional costs which are required for the restoration of George's rights under the respective plans. We recognize that the Trustees have a dual identity vis-a-vis the administration of the Trusts. On one hand, the Trustees are agents of the principals to the collective-bargaining agreement, in this case Jacobs and Local 639, for the purposes of accepting contributions and administering the Trusts in accordance with the collective-bargaining agree- ments. On the other hand, the Trustees must adminis- ter the Trusts in accordance with each Trust agree- 5 We find that the present circumstances do not warrant an award to the Charging Party of attorney 's fees and costs incurred by him here as a result of the institution of the civil suit by Local 639 and the instant proceeding Accordingly, we shall deny the Charging Party's request for such fees and costs 6 See N L . R B v United Brotherhood ofCar enters and Joiners ofAmerica, Local # 1913, AFL-CIO [Fixtures Unlimited], 531 F 2d 424,426-427 (C A 9, 1976) 1233 ment in order to comply with their fiduciary duties to the Trusts. We do not find that these dual functions are either incompatible or inconsistent with the purposes of our decision herein. However, in view of the claims by the Trustees that they must comply with certain requirements of the Trust agreements in order to accept Jacobs' contributions on behalf of George, we will provide for the proportionate payment of these additional administrative expenses by Jacobs and Local 639. At the same time, these claims of the Trustees will not be permitted to obscure the fact that the Trusts must accept such contributions submitted on behalf of George as though they had been submitted as a customary employer contribution and must restore to George his full rights, benefits, and status under the Trusts which he would have other- wise enjoyed but for his unlawful discharge and the unfair labor practices of Local 639. Since the compu- tation of these additional costs are to be determined by the Regional Director during the compliance stage, we are aware that the Respondents may cause further delay in order to thwart the immediate restoration of George's rights and benefits to which he is entitled. In this regard, we note that the obligation to pay these additional costs will not be tolled until such payments are made, so that any delay will only increase the liabilities of the parties. We do not find it necessary, as requested by the General Counsel, to amend the Board's previous Order in Jacobs to encompass the terms of the compliance agreement .7 The General Counsel's re- quest was in response to the decision issued on January 30, 1976, by the Honorable William B. Bryant of the United States District Court for the District of Columbia in Local Union No. 639, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America v. Jacobs Transfer Company, Inc., 407 F.Supp. 125, in which Local 639 sought enforcement of the arbitration award, holding that George had no right to reinstatement as provided in the compliance agreement . Judge Bryant ruled that the Regional Director's compliance agreement did not automatically preclude enforcement of Local 639's arbitration award despite the fact that it was in direct contravention of the compliance agreement. However, in view of the instant unfair labor proceed- ing, Judge Bryant stayed final determination of the civil suit . He noted that the Board could choose to amend its original reinstatement order to provide for George's reinstatement in accordance with the coin- 7 The General Counsel made this request in his motion seeking amend- ment of the order of the Board in Jacobs Transfer, Inc, 201 NLRB 210, to which Local 639 filed an opposition The Charging Party filed a statement in reply to Local 639's opposition and in support of the General Counsel's motion 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pliance agreement . Should that occur , Judge Bryant concluded, the court would be powerless to enforce the arbitration award. The compliance agreement at issue here was reached after a backpay specification and notice of hearing was issued by the Regional Director upon determining that the Board 's Order in Jacobs had yet to be carried out. While the backpay specification has some of the attributes of a General Counsel's complaint as it initiates a formal proceeding (see Board Rules and Regulations , Series 8 , as amended, Sec. 102 . 52, et seq.), it is distinguishable insofar as it is based on a Board Decision in which a violation of the Act has been found and the necessary remedy has been ordered . When he supervised the compliance agreement process , the Regional Director, in the name of the Board , acted to bring about compliance with the Board 's Order and to remedy the violation which was already found . Thus, the Regional Direc- tor was not acting on his own initiative . Rather, his action was designed to carry out the Board 's intent that its Order be properly implemented . It was only after the compliance agreement had been reached and it appeared that the remedial steps it provided had been carried out that the Regional Director closed the case in Jacobs prior to the issuance of the instant amended backpay specification . We consider the compliance agreement in this proceeding to be Board action , and action , such as this, taken to effectuate a Board order and to remedy the violation of the Charging Party's statutory rights, must take precedence over an arbitrator' s decision limited to contractual rights.8 Carey v. Westinghouse Electric Corporation, 375 U.S. 261, 272 (1963). Accord: Alexander v. Gardner -Denver Co., 415 U .S. 36, 49-50 (1974). Moreover , this consolidated proceeding arose be- cause the Respondent Union set out to, and did, frustrate the Board's original Order, as implemented by the compliance agreement , in retaliation for George 's exercise of Section 7 rights. By such conduct , Respondent Union not only restrained and coerced George in the exercise of Section 7 rights in clear violation of Section 8(b)(1)(A) of the Act, but it caused Respondent Jacobs (and the Trusts as Jacobs' agents) to fail to make George whole for Jacobs' violation of George 's rights and thereby violated Section 8(b)(2) of the Act. So that there can be no mistake about our primary intention to vindicate Daniel George 's substantive rights, we incorporate the terms of the compliance agreement in our remedy here . As the Board's superior remedial authority can be invoked at any time, this Decision takes prece- 8 It may also be found that a compliance agreement is Board action regardless of whether it is instituted pursuant to a backpay specification and notice of hearing See International Ladies' Garment Workers' Union, Local dence over any arbitrator's decision bearing upon the reinstatement rights of employee George. Carey v. Westinghouse Electric Corp., supra. In summary, having found that Respondent Jacobs has failed to comply with the Board's Decision and Order in Case 5-CA-5308 (201 NLRB 210) as implemented by the compliance agreement of July 11, 1974, and having found that Respondent Local 639 and Respondent Trusts have engaged in certain unfair labor practices, we shall order that the Respon- dents cease and desist therefrom and that they take certain affirmative actions designed to effectuate the policies of the Act. We shall also order the Respondent Jacobs retender to the Trusts the amounts designated by the compli- ance agreement of June 25, 1974, as amended on July 11, 1974, and the backpay specification of May 24, 1974, and amended backpay specification of May 30, 1975, in Case 5-CA-5308, so as to restore George's status and benefits under those plans. In consider- ation of the contentions of the Trustees that Jacobs has not tendered such interest and administration costs which are required under the Trust agreements, we shall order Jacobs to tender such additional payments required under the Trust agreements for the period from the date of the unlawful discharge until the date that its original payments, made in accordance with the compliance agreement, were rejected by the Trusts. As we have found that Local 639 was responsible for the Trusts' rejection of Jacobs' original tender, we shall order Local 639 to submit such interest and additional administration costs for the period from the date that Jacobs' original contributions were tendered and rejected until the date of compliance with this Order. We shall leave to the Regional Director to deter- mine the amounts of the additional payments due the Trusts and the appropriate division of such payments between Respondents Jacobs and Local 639. In addition, we shall order Local 639 to compensate George for whatever out-of-pocket medical expenses he incurred as a result of the unlawful rejection of the contribution Jacobs made on his behalf. CONCLUSIONS OF LAW 1. Respondent Jacobs Transfer, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 639, is a labor 415-475 [Arosa Knitting Corporation ] v N L R B, 501 F.2d 823 (C A D.C, 1974), Poole Foundry and Machine Company v N L R B, 192 F 2d 740 (C.A 4, 1951), cert denied 342 U S 954 (1952) JACOBS TRANSFER, INC. organization within the meaning of Section 2(5) of the Act. 3. Respondent Trusts and each of the Respondent Trustees are agents of Respondent Jacobs Transfer, Inc., and Respondent Local 639 within the meaning of Section 2(13) of the Act. 4. Respondent Jacobs Transfer, Inc., by the acts of its agents, the Trusts, in refusing to accept payments tendered on behalf of Daniel George, has not complied with the Board's Order in Case 5-CA- 5308, as implemented by the compliance agreement of June 25, 1974, as amended on July 11, 1974. 5. Respondent Local 639, Respondent Trusts and Respondent Trustees by discriminating against Dan- iel George in causing or attempting to cause his employer to discriminate against him in violation of Section 8(a)(3) of the Act have violated Section 8(b)(1)(A) and (2) of the Act as alleged in Case 5-CB- 1639. 6. Respondent Local 639, by causing each of the Respondent Trusts and Respondent Trustees to refuse contributions proffered on behalf of Daniel George by Respondent Jacobs pursuant to a compli- ance agreement in Case 5-CA-5308, has engaged and is engaging in violations of Section 8(b)(1)(A) and (2) of the Act as alleged in Case 5-CB-1639. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Respondent Jacobs Transfer, Inc., Landover, Maryland, its officers, agents, successors, and assigns, shall: 1. Tender contributions on behalf of Daniel George to Respondent Trusts, in order to make Daniel George whole for the losses he suffered as a result of his discriminatory discharge, as found in the Board's original Decision and Order in Case 5-CA- 5308, in the amounts set forth in the backpay specification of May 24, 1974, and amended backpay specification of May 30, 1975, in Case 5-CA-5308. 2. Tender to Respondent Trusts, as provided in the section herein entitled "The Remedy," whatever administration costs and other expenses, including interest payments, as are required by the Trust agreements, from the date of the unlawful discharge until the date Jacobs' tendered payments pursuant to the compliance agreement of June 25, 1974, as 9 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment 1235 amended on July 11, 1974, were rejected by Respon- dent Trusts. 3. Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps the Respondent Jacobs has taken to comply herewith. B. Respondent International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 639, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Discriminating against Daniel George in the exercise of the rights guaranteed to him in Section 7 of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Tender to Respondent Trusts, as provided in the section herein entitled "The Remedy," whatever administration costs and other expenses, including interest payments, as are required by the Trust agreements, from the date Respondent Jacobs' origi- nal tendered payments of the contributions on behalf of Daniel George were rejected by Respondent Trusts until the date of compliance with this Order. (b) Reimburse Daniel George for his out-of-pocket medical expenses amounting to $377 incurred as a result of the refusal of Respondent Health Trust and its Trustees to accept the contributions on behalf of George. (c) Post at its union halls in Maryland and Washington, D.C., copies of the attached notice marked "Appendix A."9 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by an authorized represen- tative of Respondent Local 639, shall be posted by Local 639, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Local 639 to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps the Respondent Local 639 has taken to comply herewith. C. Respondent Teamsters Local 639-Employers Health Trust, Its Administrator, Trustees and Agents, and Respondent Teamsters Local 639-Employers Pension Trust, Its Trustees and Agents, shall: of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Discriminating against Daniel George in the exercise of the rights guaranteed to him in Section 7 of the Act. (b) Refusing to accept the contributions offered by Jacobs Transfer, Inc., to Respondent Trusts in order to make Daniel George whole for the losses he incurred as a result of his unlawful discharge, particularly for the period of time (33 months) during which no contributions to Respondent Trusts were accepted on his behalf, thereby preventing George from being made whole as set forth in the Decision and Order of the Board in Case 5-CA-5308 (201 NLRB 210), as implemented by the compliance agreement of June 25, 1974, amended on July 11, 1974. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Accept contributions to the respective Trusts on behalf of Daniel George as set forth in the backpay specification in Case 5-CA-5308, as modified by the provisions of this Order. (b) Restore to Daniel George, upon receipt of the contributions from Respondent Jacobs, as set forth above, all rights and benefits which George would have earned or which would have accrued to him had he been continually employed from the date of his unlawful discharge to the date of his reinstatement, as if employer contributions had been submitted in the normal course of business. (c) Post at their business offices in Maryland and Washington, D.C., copies of the attached notice marked "Appendix B." 10 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by authorized representa- tives of Respondent Trusts, shall be posted by the Trusts, immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to members are customarily posted. Reason- able steps shall be taken by Respondent Trusts to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps the Respondent Trusts have taken to comply herewith. 10 See fn 9, supra APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminate against Daniel George or any other members by impeding them from exercising the rights guaranteed them under Section 7 of the National Labor Relations Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL tender to the Local 639 Health Trust and Pension Trust whatever administration costs and other expenses, including interest payments, as are required by the Trusts agreements, from the date Jacobs Transfer, Inc.'s originally tendered contributions on behalf of Daniel George were rejected by the Trusts until the date of our compliance with the Board's Supplemental Deci- sion and Order. WE WILL reimburse Daniel George for his medical expenses amounting to $377 incurred as a result of the refusal of Respondent Health Trust and its Trustees to accept the contributions on behalf of George. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL UNION No. 639 APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminate against Daniel George or any other employees by impeding them from exercising the rights guaranteed them under Section 7 of the National Labor Relations Act. WE WILL NOT refuse to accept the contribution offered us by Jacobs Transfer, Inc., in order to make Daniel George whole for the losses he incurred as a result of his unlawful discharge, particularly for the period of time (33 months) during which no contributions to us were accepted on his behalf, thereby preventing Daniel George from being made whole as set forth in the Decision and Order of the Board m Case 5-CA- JACOBS TRANSFER, INC. 5308, as implemented by the compliance agree- ment of June 25, 1974, amended on July 11, 1974. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL accept contributions to the respective Trusts on behalf of Daniel George as set forth in the backpay specification in Case 5-CA-5308, as modified by the provisions of the Board's Supple- mental Decision and Order. WE WILL restore to Daniel George, upon receipt of the contributions from Jacobs Transfer, Inc., all rights and benefits which George would have earned or which would have accrued to him had he been continually employed from the date of his unlawful discharge to the date of his reinstate- ment, as if employer contributions had been submitted in the normal course of business. TEAMSTERS LOCAL 639- EMPLOYERS HEALTH TRUST, ITS ADMINISTRATOR, TRUSTEES AND AGENTS TEAMSTERS LOCAL 639- EMPLOYERS PENSION TRUST, ITS TRUSTEES AND AGENTS July 25, 1977 ORDER GRANTING MOTION FOR RECONSIDERATION AND CLARIFICATION OF ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On January 19, 1977, the National Labor Relations Board issued a Supplemental Decision and Order in the above-entitled proceeding.' Thereafter, on Febru- ary 8, 1977, Respondent Teamsters Local 639- Employers Health Trust, its Administrator, Trustees and Agents, filed a motion for reconsideration and clarification of Order requesting that the Board clarify its Order to provide that Respondent is not liable for medical expenses incurred by Charging Party Daniel George from September 24, 1971, through June 28, 1974, and hence it has no obligation to reimburse George for any of his medical-related expenditures during that period of time.2 Respondent also asks that the Board revise its Order to state that (1) Jacobs Transfer is not obligated to make health 1 227 NLRB No 181 2 References to Respondent Health Trust also include the individual Trustees named in the caption 3 George incurred approximately $400 in medical expenses and $365 05 1237 contributions for George's 33-month reinstatement period except for a period of 6 months ending June 28, 1974; (2) Daniel George should not be reimbursed for medical expenses incurred during the period from September 24, 1971, through June 28, 1974; and (3) Respondent Health Trust is not liable for any benefit amounts incurred by George between June 28 and December 31, 1974. We find merit to Respondent's request that the Board clarify the Order in the above-entitled pro- ceeding to provide that Respondent Health Trust is not obligated to reimburse Charging Party George for his medical expenses3 incurred from September 24, 1971, through June 28, 1974. We note that our prior Order is based on the compliance agreement of June 25, 1974, amended on July 11, 1974, and that agreement did not provide for such reimbursement. Nor have the General Counsel and Charging Party requested such modifications in the terms of the settlement reached in the compliance agreement.4 Since our prior Order is based on the compliance agreement, we see no reason now to deviate from its substantive terms and, accordingly, we shall grant the motion. We hereby deny Respon- dent's motion in all other respects as lacking in merit. It is hereby ordered that Respondent Health Trust's motion be, and it hereby is, granted in the above- discussed respects, and that the Order of January 19, 1977, in the above-entitled proceeding be, and it hereby is, clarified as follows: 1. Substitute the following paragraphs for para- graph C: "C. Respondent Teamsters Local 639-Employ- ers Pension Trust, its trustees and agents, shall: "1. Cease and desist from: "(a) Discriminating against Daniel George in the exercise of the rights guaranteed to him in Section 7 of the Act. "(b) Refusing to accept the contributions offered by Jacobs Transfer, Inc., to Respondent Pension Trust in order to make Daniel George whole for the losses he incurred as a result of his unlawful discharge, particularly for the period of time (33 months) during which no contributions to Respondent Pension Trust were accepted on his behalf, thereby preventing George from being made whole as set forth in the Decision and Order of the Board in Case 5-CA-5308 (201 NLRB 210), as implemented by the compliance agreement of June 25, 1974, amended on July 11, 1974. in health insurance premiums in the period of time from his unlawful discharge until his reinstatement 4 Neither the General Counsel nor the Charging Party filed a response to the instant motion 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. "2. Take the following affirmative action designed to effectuate the policies of the Act: "(a) Accept contributions to Respondent Pension Trust on behalf of Daniel George as set forth in the backpay specification in Case 5-CA-5308, as modi- fied by the provisions of this Order. "(b) Restore to Daniel George , upon receipt of the contributions from Respondent Jacobs, as set forth above , all rights and benefits which George would have earned or which would have accrued to him had he been continually employed from the date of his unlawful discharge to the date of his reinstatement, as if employer contributions had been submitted in the normal course of business. "(c) Post at its business offices in Maryland and Washington , D.C., copies of the attached notice marked `Appendix B.'5 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by authorized representa- tives of Respondent Pension Trust , shall be posted by Respondent Pension Trust , immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to members are customarily posted . Reasonable steps shall be taken by Respon- dent Pension Trust to insure that said notices are not altered , defaced , or covered by any other material. "(d) Notify the Regional Director for Region 5, in writing , within 20 days from the date of this Order, what steps Respondent Pension Trust has taken to comply herewith. "D. Respondent Teamsters Local 639-Employ- ees Health Trust, its administrator, trustees and agents , shall: "(1) Cease and desist from: "(a) Discriminating against Daniel George in the exercise of the rights guaranteed to him in Section 7 of the Act. "(b) Refusing to accept the contributions offered by Jacobs Transfer, Inc., to Respondent Health Trust in order to make Daniel George eligible for health benefits provided by the Trust as is required by the Decision and Order of the Board in Case 5-CA-5309 (201 NLRB 210), as implemented by the compliance agreement of June 25, 1974, amended on July 11, 1974. "(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. "2. Take the following affirmative action designed to effectuate the policies of the Act: "(a) Accept contributions on behalf of Darnel George as set forth in the backpay specification in Case 5-CA-5308, as modified by the provisions of this Order. "(b) Restore to Daniel George , upon receipt of the contributions from Jacobs Transfer , Inc., as set forth above , all rights and benefits for which George is eligible as of June 28, 1974. "(c) Post at its business offices in Maryland and Washington , D.C., copies of the attached notice marked `Appendix C .' 6 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by the authorized represen- tative of Respondent Health Trust , shall be posted by Respondent Health Trust , immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places , including all places where notices to members are customarily posted . Reasonable steps shall be taken by Respon- dent Health Trust to insure that said notices are not altered , defaced , or covered by any other material. "(d) Notify the Regional Director for Region 5, in writing , within 20 days from the date of this Order, what steps the Respondent Health Trust has taken to comply herewith." 2. Substitute the attached Appendixes B and C for Appendix B of the Board 's Supplemental Decision and Order. IT IS FURTHER ORDERED that Respondent ' s motion is denied in all other respects. 5 See fn 9, supra 6 See in 9, supra APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminate against Daniel George or any other employees by impeding them from exercising the rights guaranteed them under Section 7 of the National Labor Relations Act. WE WILL NOT refuse to accept the contribution offered us by Jacobs Transfer, Inc., in order to make Daniel George whole for the losses he incurred as a result of his unlawful discharge, particularly for the period of time (33 months) during which no contributions to us were accepted on his behalf, thereby preventing Daniel George from being made whole as set forth in the Decision and Order of the Board in Case 5-CA- 5308 , as implemented by the compliance agree- ment of June 25, 1974, amended on July 11, 1974. WE WILL NOT in any like or related manner interfere with, restrain , or coerce employees in the exercise of their rights under Section 7 of the Act. JACOBS TRANSFER , INC. 1239 WE WILL accept contributions to the Pension Trust on behalf of Daniel George as set forth in the backpay specification in Case 5-CA-5308, as modified by the provisions of the Board's Supple- mental Decision and Order. WE WILL restore to Daniel George , upon receipt of the contributions from Jacobs Transfer , Inc., all rights and benefits which George would have earned or which would have accrued to him had he been continually employed from the date of his unlawful discharge to the date of his reinstate- ment , as if employer contributions had been submitted in the normal course of business. the Regional Director of Region 5 issued a complaint dated May 20, 1975, alleging that the Respondents have engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act consolidated with a backpay specifica- tion . A hearing took place in Washington , D.C., on varying dates from July 29, 1975, in Washington , D.C. Briefs were filed by the General Counsel , the Respondent Trustees, the Union against whom the charge was filed and the Charging Party. Upon the entire record in the case and from my observation of the witnesses , I make the following: FINDINGS IOF FACT TEAMSTERS LOCAL 639- EMPLOYERS PENSION TRUST, ITS TRUSTEES AND AGENTS APPENDIX C NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminate against Daniel George in the exercise of the rights, guaranteed him in Section 7 of the National Labor Relations Act, as amended. WE WILL NOT refuse to accept the contributions offered by Jacobs Transfer, Inc., to Health Trust in order to make Daniel George eligible for health benefits provided by the Trust as is required by the Decision and Order of the Board in Case 5- CA-5309 (201 NLRB 210), as implemented by the compliance agreement of June 25 , 1974, amended on July 11, 1974. WE WILL NOT in any like or related manner interfere with , restrain , or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL restore to Daniel George , upon receipt of the contributions from Jacobs Transfer, Inc., as set forth above, all rights and benefits for which George is eligible as of June 28, 1974. TEAMSTERS LOCAL 639- EMPLOYERS HEALTH TRUST, ITS ADMINISTRATOR, TRUSTEES AND AGENTS SUPPLEMENTAL DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Administrative Law Judge: Upon a charge filed against the above Union on December 6, 1974, 1. JURISDICTION Jacobs Transfer Company, Inc., a District of Columbia corporation with its principal office and place of business located in Landover, Maryland, is engaged in the interstate transportation and distribution of freight by motor carrier in the District of Columbia and the States of Maryland and Virginia. During the preceding 12 months Jacobs derived from its operations gross revenues in excess of $50,000. During the same period Jacobs shipped in interstate commerce freight valued in excess of $50,000. The Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America, Local No. 639, hereinafter called the Respondent Union is and has been a labor organization within the meaning of Section 2(5) of the Act. At all times material herein Respondent Health and Welfare Trust is and has been a trust with its principal office and place of business in the Distnct of Columbia, created and existing pursuant to a trust agreement entered into by Respondent Union, various employers including Jacobs and Alvin Dobbin and Morris Davidson as compa- ny trustees , Louis Macijeski and Charles A. Hite as company trustees , Frank DeBrouse and Earl Marcey as union trustees , and Robert A. Moore and Pope Eberhardt as alternate union trustees. At all times material herein Respondent Pension Trust is and has been a Trust Fund with its principal office and place of business in the District of Columbia created and existing pursuant to a Trust agreement entered into by Respondent Union, various employers, including Jacobs and Alvin Dobbin and Morris Davidson as company trustees , Louis Macijeski and Charles A. Hite as alternate company trustees , Frank DeBrouse and Earl Marcey as union trustees, and Robert A. Moore and Pope Eberhardt as alternate union trustees. I find that Jacobs Transfer Company is an employer engaged in commerce as defined in Section 2(6) and (7) of the Act. I also find that International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , Local Union 639, is a labor organization within the meaning of Section 2(5) of the Act . I also find that the Respondent Health and Welfare Trust and the Respondent Pension Trust is a Trust Fund with its principal office and place of business in the District of Columbia and at all times material herein the Trustees are now agents of Respondent Union acting on its behalf within the purview of Section 2(13) of the Act. 1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE UNFAIR LABOR PRACTICES its agents Health and Welfare Trust and Trustees or in the alternative from the Respondent . George is entitled under the Board's Order that as a consequence of the refusal to accept this money , George has suffered the loss of $2,111 from his pension account and has further suffered the loss of 33 months pension coverage as a result of his unlawful discharge . In order to be made whole as required by the Board's Order , George is entitled (a) to have credited to the pension plan in which he has a vested interest the amount of $2,111 and (b) to have coverage for him under such plan extended to include the aforesaid 33 months . Alternatively, in order to make George whole as required in the Board's Order, Respondent shall establish and maintain for George a separate pension plan providing coverage comparable to that to which he would have been entitled under the aforesaid pension plan. In order to properly evaluate the instant case it becomes necessary to review in some detail the events which preceded the filing of the instant proceedings. The Charging Party , Daniel George , went to work for Jacobs Transfer , Inc., on August 11, 1966, at a facility of the employer known as the Ardmore Terminal and was employed continuously at this place of employment until he was discharged for "disloyalty" on September 24, 1971. As it later developed George 's "disloyalty" consisted of his forming a committee of reform and in this capacity he issued a pamphlet charging that Local 639's president, Frank DeBrouse, and the then vice president and general manager of Jacobs, James Mills (who was formerly a business agent for Local 639) were engaged in a combina- tion in opposition to the interest of the Union's members. As a result of George 's activity in forming the committee for reform of Local 639 , he became the spearhead of opposition to the incumbent officers of the Local Union. It is not too much to say that from the genesis of the movement to oust the incumbents, George became the focal point of a long series of events designed to get rid of him. At the time of his discharge , September 24, 1971, he had already embarked on a campaign as a candidate to become the president of the dissident group. In the pamphlet mentioned above he charged that DeBrouse and his supporters were engaged in a combination in opposition to the interest of the union members . He filed a series of grievances : one was to complain that he was not assigned to premium pay , long-run deliveries (over 40 miles); and grievances over his assignment concerning overtime. In order to eliminate George from coverage in the union contract the Company invited him to accept a supervisory position . He also grieved about violation of seniority rules and starting time rules . These matters were brought to the attention of the Union 's executive board and when no action was taken he complained to the Eastern Conference of Teamsters that Local 639 was not enforcing the Union's contract . It soon became evident that Vice President Mills was determined to get rid of George . In fact the newsletter prepared by George referred to threats of physical harm against him . It was significant that when George was discharged the reason given was disloyalty . The discharge took place without George having first been given a 10-day warning notice as required in the collective -bargaining agreement. After his discharge George requested neutral A. Background On January 11, 1973, in Jacobs Transfer, Inc., 201 NLRB 210, the Board found that Jacobs had unlawfully dis- charged George and ordered Jacobs to reinstate George and make him whole. In seeking to comply with the Board's Order Jacobs on or about the dates indicated took the following action: (a) On or about July 15, 1974, Jacobs reinstated George to a position as regular freight driver at its Francoma, Virginia , location , thereby displacing John Lester , the least senior employee member of Respondent at that location. (b) On or about June 25 , 1974, Jacobs tendered to George backpay in the amount of $9,370.88, interest computed at 6 percent per annum in the amount of $ 1,123.88 and vacation pay in the amount of $171.90. (c) On or about June 27 , 1974, Jacobs tendered to Respondent Health Trust payment on behalf of George in the amount of $298.80. (d) On or about June 27, 1974, Jacobs tendered to Respondent Pension Trust payment on behalf of George in the amount of $2,111. (e) On or about September 10, 1974, Respondent Union processed before the Joint Maryland -District of Columbia Area Committee agreements against Jacobs on behalf of John Lester based upon Lester's having been displaced at Jacobs ' Francoma , Virginia , location , as a result of Jacobs' reinstatement of George. (f) On or about October 25, 1974, pursuant to Section 301 of the Act , Respondent Union filed and prosecuted in the United States District Court for the District of Columbia a civil action against Jacobs based on Jacobs reinstatement of George. (g) On or about October 25 , 1974, Respondent Union, by its agent Respondent Health and Welfare Trust, refused to accept payment in the amount of $298 . 80 tendered to it by Jacobs on behalf of George. (h) On or about October 29 , 1974, Respondent Union, by its agent Respondent Pension Trust , refused to accept payment in the amount of $2,111 tendered to it by Jacobs on behalf of George. As a result of the above events Respondent has engaged in and is engaging in unfair labor practices as defined in Section 8(b)(I)(A) and (2) of the Act. Because of the facts which will be elucidated in the instant decision the Board issued an amended backpay specification in Case 5-CA-5308 alleging that George had not been made whole as required by the Board's Decision and Order. On or about October 25 , 1974, Respondent , by its agents Health and Welfare Trust and the Trustees named in the caption of the case refused to accept payment tendered to it on behalf of George . It is further alleged that as the result of Respondent 's refusal through its agents Health and Welfare Trust and the Trustees named in the complaint to accept payment on behalf of George which is entitled under the Board 's Order to make him whole, George has incurred out-of-pocket medical expenses in the amount of $377. In order to be made whole as required by the Board 's Order George is entitled to payment in the amount of $377 from JACOBS TRANSFER , INC. 1241 arbitration by a disinterested third party and he stated he would not be bound by any decision of the Maryland- District of Columbia Joint Area Committee . This commit- tee upheld the discharge and refused to refer the matter to neutral arbitration . While the contract does contain certain grounds which permitted the discharge without 10-days' notice , these specific provisions did not mention disloyalty as the basis for such action. The major defense asserted by Respondent Jacobs was that the Board should defer to the decision of the Joint Area Committee , insisting that this decision should be regarded as a neutral arbitration decision and cited in support of this position that the criteria set forth in the Spielberg Manufac- turing Company, 112 NLRB 1080 (1955), had been met. The Administrative Law Judge in Case 5 -CA-5308 stated in his decision that George did not voluntarily submit the dispute to the contract procedures , did not agree to be bound by the result , and asked the committee to disqualify itself and to submit the dispute to a neutral arbitrator for disposition. He also found that the decision itself was not consistent with the purposes and policies of the Act . In affirming the decision of the Administrative Law Judge , one Board member stated, among other reasons, the submission to the Joint Committee 's arbitration award would not satisfy the requirements of Spielberg because the Committee was "arrayed in interest against the grievant." The action of the Joint Committee served to rubberstamp the decision of Local 639. The Charging Party contends that the real motive for the Maryland-District of Columbia Joint Area Committee upholding the discharge of George was to lay the ground- work of the ruling that George was ineligible to run for office in the election scheduled for December 1971. In pursuance of the same purpose George 's fellow candidates on the committee for reform slate were ruled ineligible for failure to meet an attendance requirement rule, which was later found to be illegal by the Department of Labor and by the United States Court of Appeals for the District of Columbia as decided on March 8 , 1974, in civil action No. 73-1938 . By these maneuvers the incumbents attempted at the outset to defeat opposition to them by ruling all of the committee for reform ineligible to run for office. However, Teamsters International president , Frank Fitzsimmons, ruled , on December 29, 1971 , that George was eligible to run for office despite the fact that he was not currently employed in the industry as a result of his discharge by Jacobs. This discharge was being contested by Jacobs in the case before the National Labor Relations Board. The C case was heard by Administrative Law Judge Schneider who found the Company guilty of unfair labor practices in violation of Section 8(a)(3) and ordered George reinstated with backpay , full seniority , and all rights and privileges previously enjoyed by him. Some of the candidates who were ruled ineligible had been working on evening shifts and this fact precluded their attending the requisite number of Local Union meetings . This was later ruled illegal by the Department of Labor and the United States Court of Appeals for the District of Columbia because it rendered more than 90 percent of the union membership ineligible to run for office . When the election was finally held on January 23, 1972 , it resulted in the incumbent DeBrouse winning with 800 votes to 570 for George . Because of the numerous election irregularities which had taken place George filed charges on May 12 , 1972, with the Secretary of Labor . Thereafter , the Department of Labor set the election aside because of the irregularities described above and ordered that a new election be held. At the new election DeBrouse was again elected and George defeated by approximately the same number of votes as on the occasion of the first election. Local 639's secretary -treasurer notified George by letter on August 29, 1972 , that he would be placed on withdrawal involuntarily , retroactively as of May 1972 "since you have not worked within the industry ." George unsuccessfully attempted to appeal this ruling internally within Local 639. On September 22, 1972 , he nevertheless was placed on involuntary withdrawal status retroactively as of May 11, 1972. George refused to accept the withdrawal card and again unsuccessfully sought to appeal the matter to the International Union , but the International Union ignored the appeal. B. The Closing of the Ardmore Terminal At the request of George 's employer , Jacobs Transfer, Inc., the Maryland-District of Columbia Joint Area Com- mittee conducted hearings on October 2 and 3, 1972, on a proposed change in operations that was to result in closing the terminal at Ardmore , Maryland , where George had worked since 1966 . The change of operations hearing was ex parte as to George since he was not notified and knew nothing about it until after the Board had issued its Order of January 11, 1973, affirming the Administrative Law Judge's Decision. Jacobs' submission to the Joint Area Committee ex- plained that the terminal was closing for lack of work except as to a small amount that would be transferred to Baltimore . Specifically , Jacobs' president, Grubbs, stated in writing that the work at Ardmore would be "substantially eliminated" and soon "almost totally eliminated" with the remaining work at Ardmore which was described as minimal . The president of the Baltimore Teamsters Local 557 (the Baltimore Local to which the Ardmore employees were transferred) sent George a copy of the change of operations sometime after January 11, 1973. President Fabula informed George that Local 557 had agreed to transfer only three men to Jacobs ' Baltimore terminal and Fabula made it clear that , if George came to Baltimore, he would not have a job but would be placed in layoff status. It should be noted that George had a substantial , good-faith basis for concluding that he would be placed on layoff if he accepted the transfer to Baltimore . As a result of this information George consulted with his attorney and decided under these circumstances he could not accept a transfer to Baltimore since the transfer would simply mean layoff in Baltimore instead of Washington , D.C., and he would be out of Local 639. He believed that he had other options under his labor contract in Washington , D.C., area that would entitle him to reinstatement at other locations of Jacobs Transfer, Inc., in the Washington area without having to be redomiciled. On the basis of undisputed facts, United States District Court Judge Hart concluded on May 10, 1973 , that George 1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had been required to take a withdrawal card in violation of the requirements of Local 639's own constitution and bylaws , in violation of the requirements of the Landrum- Griffin Act, in reprisal for his activities opposing the incumbent offices of the Union , and also in reprisal for George's complaining to the Secretary of Labor about election irregularities. C. Judge Hart 's Order Shortly thereafter , Judge Hart of the United States District Court for the District of Columbia certified the results of the election that had been held on December 16, 1973, and entered an order directing Local 639 to take no adverse action with respect to the membership rights of George based upon his nonemployment in the industry pending final disposition of the proceedings before the National Labor Relations Board and for 3 months thereaf- ter. D. The Compliance Agreement The compliance agreement finally settling Case 5-CA- 5308 was executed on June 25 , 1974, in accordance with which Jacobs Transfer , Inc., agreed to reinstate George at its Franconia (GPO) operation on June 28 , 1974, perma- nent regular freight driver replacing the least senior employee . The compliance agreement further provided that Jacobs would make contributions to the Pension and Health and Welfare Funds retroactively in such amounts as were necessary to make George whole . The Company would pay George full backpay with interest . Jacobs Transfer Company immediately carried out the terms of the compliance agreement by providing George with net backpay to which he was entitled and by sending checks to the Pension and Health and Welfare Funds in the requisite amounts. George was reinstated by Jacobs at GPO night-contract job in Franconia , Virginia, on July 15, 1974 , and Jacobs tendered payments on behalf of George pursuant to the compliance agreement to the industry Health and Welfare and Pension Funds . These payments were thereafter returned and were never deposited. At the time George was reinstated at the GPO night- contract job, he displaced the least senior man employed there , John Lester . Lester was upset about the potential loss of his job and testified that he called Local 639 's offices to complain and spoke to Business Agent Furman Jenkins. However, Lester testified that he never filed a grievance with Local 639 and , although Local 639 was under subpena to produce all relevant documents pertaining to Lester's alleged grievance , the record does not contain a single document signed by Lester authorizing Local 639 to proceed in his behalf. In fact, it developed at the hearing that , when Lester was shown the grievance that allegedly concerned his complaint , he testified that he had never seen the paper before and that he did not sign any written grievances . Lester also testified that he was not interested in filing a grievance with Local 639 because he was assigned other work by Jacobs at its Franconia , Virginia, location. He has not lost any pay by virtue of George bumping him and is currently employed by Jacobs. Joseph Trerotola , International Director for the Eastern Conference of Teamsters , advised that there "is no question that the National Labor Relations Board has superior authority over the Grievance Committee as a matter of law .... Thereafter, the Local 639 did not strike Jacobs to enforce the committee awards . It did, on October 25, 1974, file suit pursuant to Section 301 of the Act in the United States District Court for the District of Columbia to enforce the so-called Lester agreement . The Board has intervened in that proceeding and has filed a motion to dismiss. The court has not yet taken any action on the lawsuit. Although Local 639 appears to have made an extraordi- nary effort to pursue this controversy in the name of Mr. Lester, it appears to have neglected to inform Lester of the prosecution of the grievance . In this regard, Lester testified that he had never been informed by Local 639 that a grievance had been filed in his behalf. While on the witness stand Lester was shown all relevant documents pertaining to Local 639's prosecution of "his grievance ," and he testified that he had never seen them before. Further , Lester testified without contradiction that he was not present during the deliberations of the Joint Maryland-District of Columbia Area Committee and that Local No. 639 had not informed them of the decision of that Committee. More- over , Lester did not know that Local No . 639 had filed a suit in the United States District Court for the District of Columbia to enforce the grievance award and he could not identify the relevant court document . Lester testified that he was content with the situation as it currently exists and has no grievance against George. The Joint Maryland-District of Columbia Area Commit- tee appears in the case in the posture of an arbitrator. Its arbitration decision in support of Local 639 is in direct contravention of the Board's decision as described in the Board's compliance determination. The issue of how to reconcile the Board's remedial powers with an arbitrator's authority to enforce contracts was decided by the Supreme Court in Carey v. Westinghouse Electric Corp., 375 U.S. 261 (1964). In language clearly applicable here, the Court ruled that in disputes which could be heard by both an arbitrator and "the superior authority of the Board may be invoked at any time," that while "arbitration awards concerning unfair labor practices may later end in conflict with Board rulings ... the possibility of conflict is no barrier " to arbitration and that "should the Board disagree with the arbitrator the Board's ruling would of course take precedence." The Supreme Court explicitly reaffirmed Carey during its last term in Alexander v. Gardner -Denver Co., 415 U.S . 36,49-50 (1974). E. The Animus of Local 639 Against George The catalogue of the efforts made by Local 639 to eliminate George from his employment with Jacobs and then to disqualify him as a member of the Union is evidenced by a long series of actions which it undertook against George . The Joint Maryland-District of Columbia Area Committee upheld George 's discharge from Jacobs and was thereafter reversed by the Board in the Jacobs Transfer, Inc., 201 NLRB 210, with Chairman Miller finding that the Committee was arrayed in interest against George . The conduct of Local No . 639 in the first election JACOBS TRANSFER, INC. which resulted in extensive litigation before the United States Department of Labor and in the United States District Court for the District of Columbia overturned the election . DeBrouse on numerous occasions has vilified George as a dissident radical and as a troublemaker. Local No. 639 began a deliberate and concerted effort to issue George a withdrawal card while he was not working in the industry due to his unlawful discharge from Jacobs in order to prevent George from maintaining his candidacy for elective office within the Union. Local 639 was persistent in this effort as is shown by the fact that it issued George withdrawal cards on three separate occasions resulting in two injunctions issued by Judge Hart in the United States District Court for the District of Columbia. Indeed, Judge Hart found in his order of June 27, 1973, that George was issued a withdrawal card in reprisal for his activities in opposing the incumbent officers of the Union and in complaining to the Secretary of Labor. Local 639 further engaged in dilatory tactics in processing George's grievance of February 12, 1973, and, thereafter, did not represent George in the grievance hearing. The Eastern Conference Joint Area Committee, which ultimately decided George's grievance , rejected his position despite George 's compelling arguments that he should be reinstated to a Jacobs' operation in the Washington, D.C., area. It is also signifi- cant to point out that the Conference Committee, despite the request of both George and Jacobs, refused to allow the matter to be heard by a neutral arbitrator although provisions for this type of action is provided in the contract. Furthermore, Local 639's participation in and the decision to return the payments tendered by Jacobs on behalf of George to the Health and Welfare Trust and the Pension Trust were caused by the Union. It should also be noted that Local 639 persisted in attempting to process the so- called Lester grievance including seeking court enforce- ment thereon despite the evidence that Lester was not really interested in the grievance . It is also true that Local 639, as a further evidence of its bad faith, chose to ignore George's request to intervene in the proceeding despite the possible impact on his job. It should be contrasted with the lack of action of the Union in processing George's grievance of February 12, 1973, seeking reinstatement at the Jacobs, Washington, D.C., operation. From all of the above it is apparent that the conduct of Local 639 directed against George has demonstrated that the Union has failed in its duty of fair representation with respect to grievances and appeals filed by George. Respondent Union's counsel iterated and reiterated the fact that the filing of the lawsuit is not an unfair labor practice. As a general rule this is correct. However, the Board and the courts have not hesitated to find the processing of a grievance and the filing of a lawsuit to be an unfair labor practice when the prosecution of the lawsuit was conducted in bad faith in order to subvert an individual's statutory rights. See Local 445, International Union of Electrical, Radio and Machine Workers, AFL-CIO (Sperry Systems Management Division), 216 NLRB 173 (1975), in which Members Fanning, Jenkins, Kennedy, and Penello, upon remand from the Second Circuit, held that the prosecution of a grievance and the fihng of a lawsuit pursuant to Section 301 of the Act to enforce the grievance 1243 award constitutes a violation of Section 8(b)(3) of the Act. When Local 639 prosecuted the Lester grievance without Lester's consent through the grievance procedure and in the United States District Court it sought to subvert George's statutory rights to reinstatement to a Jacobs, Washington, D.C., area operation with full backpay in violation of Section 8(b)(1)(A) and (2) of the Act. F. The Trustees Were Obligated To Accept the Payments Offered as Part of the Jacobs' Compliance With the Board 's Order Jacobs tendered checks in the amount of $298 to the Washington Motor Truck Transportation Employees Health and Welfare Trust and of $2,111 to the Washington Motor Transportation Employees Pension Trust on behalf of George. In letters of September 16 and October 29, 1974, counsel for the Trust Funds returned both of Jacobs' checks and at all times material herein the Trusts have refused to accept the payments tendered by Jacobs on behalf of George. If the Pension Trust was to prevail in rejecting Jacobs tender of $2,111 in George's behalf, he would forfeit pension benefits in the industry from the date of hire with Jacobs in 1966 to the date of his reinstatement in July 1974 because the rules of the Pension Trust require that an employee have 10 years of uninterrupted employment in the industry for the pensions to vest. Furthermore, George would lose Health benefits in the amount of $298 if the Health and Welfare Trust continued to refuse the tender of this sum of money. In the backpay specification in order to secure full backpay for George in compliance with the Board's Order, the Regional Director names both the Pension Trust and the Health and Welfare Trust as well as the Trustees of the respective Trusts as agents of Jacobs Transfer, Inc., and hence they are obligated to accept payments made on George's behalf by Jacobs. The Board has held that in circumstances where the trust was established pursuant to collective-bargaining agreement between employer associa- tions and the union , where the trustees of the trust consist of an equal number of representatives of the employers and of the union, where the trustees representing the union are appointed by the union, and where the master labor agreement gives the trust viability requiring contributions to the trust fund at rates set by negotiations of the successive collective -bargaining agreements , the trustees are deemed agents of the employers and unions who participated therein. The Pension Trust was established December 12, 1956, by agreement between an employer association (to which Jacobs belongs) and Local No. 639. The Health and Welfare Trust was established in 1952 by agreement between an employer association (to which Jacobs belongs) and Local No. 639. In entering into the Pension Trust and the Health and Welfare Trust agreements , the parties were acting pursuant to a collective-bargaining agreement, predecessor to a current National Master Freight agree- ment between the same parties. The National Master Freight agreement obligates members of the employer associations , including Jacobs, to make pension payments on behalf of their employees to the Pension Trust and the 1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Health and Welfare Trust established by the Trust agree- ments. In these circumstances the Board has required a party to a pension or Health and Welfare Fund to make contribu- tions to such funds as part of a backpay order remedying unfair labor practices of an employer or a union. See Artim Transportation System, Inc., 193 NLRB 179 (1971); N.LR.B. v. International Association of Bridge, Ornamental Reinforced Iron Workers, et al., Local 377, AFL-CIO, 454 F.2d 1175, 1176 (C.A. 9, 1972). From a reading of the cases it is therefore clear that there is no basis to support the Pension Funds' and the Health and Welfare Funds' denial of agency status . For the Board has not deemed it essential to reach a finding that an employer participant of a trust fund has the right to dominate , direct, or control the activities of the trustees or of the funds. Rather, the Board, in finding an agency relationship between an employer and a trust fund, merely requires that the trust funds and their trustees be required to accept contributions by employers on an employee's behalf and to administer said contributions as though they had been made by an employer contributor. It should further be noted that Congress has made it clear that where National Labor Policy is concerned, "Strict rules of agency should not be applied ...." N.L.R.B. v. General Metals Products Company, 410 F.2d 473, 475 (C.A. 6, 1969), cert. denied 396 U.S. 830 (1969). In accordance with the above indicated body of law, the Health and Welfare and Pension Funds and their Trustees should be ordered to accept the payments tendered to them by Jacobs on behalf of George as set forth in the backpay specification. With respect to the refusal of the Trust Funds to accept the payments required by the compliance agreement reached by Jacobs and the National Labor Relations Board, it is contended that both Section 8(b)(1)(A) and (2) of the Act were violated through the rejection of the payments by the Health and Welfare Trust and the Pension Trust on the theory that the Trust and their Trustees are agents of the Union. In addition, the General Counsel argues that Local No. 639 violated Section 8(bXIXA) and (2) of the Act by causing the Health and Welfare Trust and the Pension Trust to deny George employment benefits due him in compliance with the Board's decision in Jacobs Transfer, Inc., 201 NLRB 210 (1973). It should be pointed out that substantial animosity exists between Local No. 639 and George essentially because George has seriously challenged incumbent President DeBrouse in two intra- union elections . Furthermore, both DeBrouse and his vice presidential running mate , Marcey, are the two union representatives on the Health and Welfare Trust and the Pension Trust and Marcey voted against accepting the contributions (DeBrouse abstained) as to the two employer representatives. Thus, the record provides ample basis for the conclusion that Local No. 639 through its president, DeBrouse , violated Section 8(b)(1)(A) and (2) of the Act by causing the Trust to deny George substantial employment benefits by rejecting Jacobs' payments on his behalf. G. Questions of Law Raised by Respondent Union and the Trust Repeated through the course of the hearing before me counsel for the Union objected to the receipt in evidence of documents which were claimed to be irrelevant as not being encompassed within the allegations of the complaint. It was also argued that the complaint was vague and was not set forth with sufficient specificity in order to apprise the Union of the matters it would have to defend. In this connection it should be pointed out that the instant complaint was issued in Case 5-CB-1639 on May 20, 1975. If the Union felt that the complaint was insufficient and vague it should have filed a motion for a bill of particulars long before the opening of the heanng which took place on July 29, 1975. Respondent Union also claimed at the heanng that the instant matter should be held in abeyance pending the issuance of a decision by the United States District Court for the District of Columbia since the court action con- cerned the identical matters encompassed in the complaint. In this connection it is elementary that the NLRB has exclusive jurisdiction over unfair labor practice cases even though it enjoys concurrent jurisdiction with the court. The law is well settled on this point as has been set forth in the Supreme Court case known as Smith v. Evening News Association, 371 U.S. 195 (1962), in which case there was a 303 action and simultaneously an 8(b)(4) case. The Board reached one conclusion and the lower courts reached an exact opposite decision on an identical statement of facts. When the case got to the Supreme Court, the Court held that, even though the results are diametrically opposed, enforcement would be granted on both cases. Respondent Union filed a motion to dismiss the subpoe,na duces tecum which requested the appearance of the NLRB Regional Director to testify and bring into the hearing books, records, memoranda, and rough notes relating to the discnminatee . I granted the General Counsel's motion to quash the subpena. The subpena was too broad in its scope and it did not appear that the information requested was necessary in the successful handling of the case. Counsel adduced evidence concerning certain events that took place in 1971, 1972, 1973, and 1974 which events transpired outside of the 10(b) period. I admitted this evidence as background material essential to an understanding of the history of the case all of which sheds light on the essential aspects of the matter. Both the Union and counsel of the Trust Funds denied allegations in the complaint that the said Trust Funds were agents of both the Company and the Union as found by the Board in United Brotherhood of Carpenters and Joiners of America, Local #1913, AFL-CIO, 213 NLRB 363, fn. 1 (1974): The General Counsel excepts to the failure of the Administrative Law Judge to find that the Carpenters Pension Trust for Southern California and its trustees are agents of the Respondent Union and therefore obligated to accept payment from it for credit to the account of the Charging Party herein and to administer said account as though such payment was made by an employer-contributor. We find merit in the General JACOBS TRANSFER, INC. Counsel 's exception . It is clear on the record herein that the trust in question was established by an agreement between employer -associations and the United Brother- hood of Carpenters and Joiners of America for its southern California district councils and union locals, with which the Respondent Union is affiliated , referred to in the trust agreement as "the Union," pursuant to a collective-bargaining agreement between the same parties or their precedessors ; that the board of trustees of the trust consists of an equal number of representa- tives of the employers and of the "Union"; that the trustees representing the "Union " were appointed by, and are removable by, the "Union"; and that the current master labor agreement and its predecessors continue to give the trust viability , requiring contribu- tions to the trust fund at rates set by negotiation of the successive collective-bargaining agreements . In these circumstances , we find that the trustees herein are agents of the Respondent (Local 80, Sheetmetal Workers International Association, AFL-CIO, et at, 161 NLRB 229 (1966), and may appropriately be required to accept contributions by the Respondent on the Charging Party's behalf and to administer said contributions in the same manner in which they would have been administered if made by an employer-contributor (Local Union No. 38 Sheet Metal Workers ' International Association, AFL-CIO (Mid-Hudson Sheet Metal Inc.), 194 NLRB 76 (1971)). Accordingly, in order to effec- tively remedy the unfair labor practices found to have been committed by the Respondent herein , we shall require that such contributions be accepted and admin- istered in the manner sought by the General Counsel. Conclusion I agree with the conclusion of the General Counsel as set forth in his brief and so find. With regard to the backpay specification (Case 5-CA- 5308) which was issued by the Regional Director following noncompliance by Jacobs with the Board's Order in Jacobs Transfer Company, 201 NLRB 210, and further which names Local 639 as a party in interest, it is contended that both the Health and Welfare Trust and the Pension Trust and all of their Trustees are agents of Jacobs. As agents, their refusal to accept the contributions was Jacobs' responsibility. This refusal to accept contributions resulted in noncompliance with the Board's Order and with the compliance agreement. Thus, under the Board's Order and the compliance agreement, the backpay specification re- quests that George be restored to the status he would have been in but for the discriminatory discharge. A condition of such coverage is that the Trust Funds accept the contribu- tions. Since Jacobs is responsible for the Trust Funds' nonacceptance, it is responsible for noncompliance. Alter- natively, assuming, arguendo, that the aforementioned agency is not found, Jacobs itself would be obligated to provide George with comparable coverage and a pension and medical plan as but for Jacobs' unlawful discharge of George he would not have lost coverage under the Trust Funds. Thus, Jacobs, itself, under this alternative theory, must restore the equivalent of the status quo since its unlawful conduct created the problem in the first place. 1245 Regarding the charges in Case 5-CB-1639, it is contend- ed that Section 8(b)(1)(A) and (2) of the Act as violated by Local 639 which caused the Trust Funds to deny George employment benefits accruing to him pursuant to the Board's Order in Jacobs Transfer, Inc., supra. In this regard, it is noted that this portion of the case against Local 639 is closely related to the backpay specification against Jacobs. Common to both proceedings is the issue of who is responsible for the fact that George is not covered by the Trust Funds. It is submitted that both are responsible, Local No. 639 for discriminatory reasons, and Jacobs agency principles. In Case 5-CB-1639, the theory is that Local No. 639 for discriminatory reasons caused the Trust Funds to refuse coverage to George. Thus, Local 639 is responsible for the noncoverage. In the backpay specification even assuming arguendo that Local 639 cannot be shown to have discrimi- natorily caused the noncoverage, Jacobs, acting through its agents (the Trust Funds), refused Trust Fund coverage and this refusal constituted noncompliance with the Board's Order and the compliance agreement. It is further contended that Local 639 violated Section 8(b)(1)(A) of the Act by processing the so-called Lester grievance. Similary, Local 639's conduct of instituting a 301 suit against Jacobs, after George and Jacobs had reached the compliance agreement which the Regional Director approved challenging George's reinstatement in the Wash- ington, D.C., area was deemed violative of Section 8(b)(1)(A) of the Act. Both of these actions by Local 639 would deem to have been motivated by the animosity of Local No. 639 against George and to be inconsistent with Local No. 639's obligation as the 9(a) representative of George. Further, both of these actions served to interfere with important statutory rights possessed by George pursuant to the Board Order requiring his reinstatement and full backpay in violation of Section 8(b)(1)(A) and (2) of the Act. From the foregoing, it can be seen that Jacobs met its requirements under the compliance agreement which it executed with the Regional Office and but for the insistence of Local 639 that it would not accept payments for the Health and Welfare and Pension Funds it is clear that the said Local is guilty of violations of the Act as set forth above. I so find. CONCLUSIONS OF LAW 1. Respondent Jacobs Transfer, Inc., has complied with the terms of the compliance agreement it entered into with the Regional Director of Region 5. It was prevented from full compliance because both the Union and the Trusts refused to accept the contributions proffered by Jacobs on behalf of George. To the extent that Jacobs did not force the issue of acceptance of the said contributions it will be required to do so. The Trust Funds will be ordered to accept the contributions tendered by Jacobs. Furthermore, the Respondent Local Union having been found to have violated Section 8(b)(1)(A) and (2) of the Act has been found to have committed unfair labor practices as enumer- ated above. I so find. 1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. THE REMEDY Having found that the Respondent Union and Respon- dent Trusts engaged in certain unfair labor practices , I shall recommend that Respondent be ordered to cease and desist therefrom , and from like and related unfair labor practices, and that it take the affirmative action provided for in the recommended Order below, which I find necessary to effectuate the policies of the Act. Having found that Respondents unlawfully discrimi- nated against George and refused to accept the contribu- tions offered by Jacobs in compliance with its agreement to make such offers it will be recommended that the Respon- dent be ordered to again offer the payments to the two funds and the two Trust Funds be ordered to accept such payments. [Recommended Order omitted from publication.] Copy with citationCopy as parenthetical citation