Freight Drivers, Local 287

National Labor Relations Board - Board Decisions

Sep 14, 1981

257 N.L.R.B. 1255 (N.L.R.B. 1981)

FREIGHT DRIVERS, LOCAL 287
Freight, Construction, General Drivers, Warehouse-
men and Helpers, Local Union 287, Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helper of America (Container
Corporation of America) and Gregg C. Nelson.
Case 32-CB-812
September 14, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On April 24, 1981, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief; the General Coun-
sel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, 2 as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Freight, Construction, General Drivers, Warehou-
semen and Helpers, Local Union 287, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, San Jose, California,
its officers, agents, and representatives, shall take
the action set forth in the said recommended
Order, as so modified:
Delete the word "other" from paragraph l(b).
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dr) Wall Products.
Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We note that in some parts of sec IB, of his Decision, the Administra-
tive Law Judge incorrectly stated that the meeting between Nelson. Bog-
gini. and Felice took place on July 29. 1980. This meeting took place on
July 30. 1980.
2 In accordance with his dissent in Olympic Medical Corporation. 250
NLRB 146 (1980). Member Jenkins would award interest on the backpay
due based on the formula set forth therein
DECISION
STATEMENT OF THE CASE
JERROI.D H. SHAPIRO, Administrative Law Judge: The
hearing in this case, held on January 12, 1981, is based
on an unfair labor practice charge filed on August I,
1980, by Gregg C. Nelson, herein called Nelson, and a
complaint issued on September 30, 1980, on behalf of the
General Counsel of the National Labor Relations Board,
herein called the Board, by the Regional Director for
Region 32 of the National Labor Relations Board alleg-
ing that Freight, Construction, General Drivers, Ware-
housemen and Helpers, Local Union 287, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called Respondent, has
engaged in unfair labor practices within the meaning of
Section 8(b)(2) and (I)(A) of the National Labor Rela-
tions Act, as amended, herein called the Act. Respondent
filed an answer denying the commission of the alleged
unfair labor practices.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
post-hearing briefs, I make the following:
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Questions Presented
The questions presented herein are whether because
Nelson's nonmembership Respondent caused the Em-
ployer to discharge him and then refused to permit him
to register on its out-of-work list and refused to clear
him for employment with the Employer for the same
reason. The question of Respondent's responsibility for
Nelson's discharge was not specifically alleged in the
complaint but is an integral part of the allegations con-
tained in the complaint and was fully litigated and
briefed by all parties.
B. The Evidence
Container Corporation of America, herein called the
Employer, operated a facility in Emeryville, California,
prior to June 1979 and was a party to a collective-bar-
gaining agreement with Teamsters Local Union 85 cov-
ering the warehouse employees employed at that facility.
In June 1979 the Employer commenced to relocate its fa-
cility from Emeryville to Milpitas, California, which is
within Respondent's geographical jurisdiction. The relo-
cation was completed in October 1979. Between June
1979 and January 28, 1980, the Employer's warehouse
employees in Emeryville and Milpitas were not covered
by a collective-bargaining agreement. On January 28,
1980, the Employer and Respondent entered into a col-
lective-bargaining agreement covering the warehouse
I Respondent. in its answer. admits that it is a labor organization within
the meaning of Sec. 2(5) of the Act and that Container Corpolration of
America. the Employer involved in this case, meets the Board's applica-
ble discretionary jurisdictional standard and is an employer within the
meaning of Sec 2(6) and (7) of the Act I therefore find that it will effec-
tuate the policies of the Act for the Board to assert its jurisdiction herein
257 NLRB No. 168
1255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees employed in the Milpitas facility which was
effective during the period material to this case.
The Employer, pursuant to the terms of the January
28, 1980, collective-bargaining agreement, agreed "that
in hiring all vacancies or new positions . . . that they
will hire through the office of the [Respondent], pro-
vided the [Respondent] shall be able to furnish compe-
tent and experienced persons for work required." 2 The
agreement also provides that if an applicant is registered
on the out-of-work list the Employer may call for the
applicant by name if the applicant has worked previously
for the Employer in the San Francisco Bay area or for
the Employer in some other geographical area and the
Employer considers the applicant suitable for the job.
The collective-bargaining agreement requires Re-
spondent to refer applicants for employment without ref-
erence to their membership or nonmembership in Re-
spondent.3 Prior to March 1980 nonmembers who regis-
tered on the out-of-work lists maintained by Respondent
were issued hiring hall cards and paid a service fee to
Respondent for the use of the hiring hall's facilities. Re-
spondent's members paid monthly dues. In 1980 the geo-
graphic area serviced by Respondent's hiring facility was
suffering from heavy unemployment. The result was a
lack of work at Respondent's hiring facility. Respondent
decided it was unfair to accept persons as members when
there was little likelihood of employment for them. Ac-
cordingly, in March 1980 Respondent closed its member-
ship lists to all persons who did not hold full-time senior-
ity employment. Commencing in March 1980 Respond-
ent stopped accepting new members which included per-
sons attempting to transfer from other Teamsters local
unions, until such time as they obtained full-time senior-
ity employment. Likewise, Respondent believed it was
unfair to charge nonmembers a hiring hall fee when little
work was available. So, in March 1980 it also ceased is-
suing hiring hall cards to nonmembers and ceased charg-
ing them a hiring hall fee. Since March 1980 non-
members registering on the out-of-work lists maintained
by Respondent have gotten a "free-ride."
Nelson, the alleged discriminatee herein, at all times
material was a member of Teamsters Local 302 with a
withdrawal card from that union. He was first employed
by the Employer as a forklift driver in November and
December 1979 for 26 days.4 Nelson was again employed
by the Employer on the swing shift as a forklift driver in
July 1980. Nelson was not hired through Respondent's
hiring facility, instead he obtained this position by phon-
2 Respondent's contract with the Employer calls for the establishment
of "A" and "B" out-of-work lists, with dispatch priority being given to
applicants on the A list. In fact, Respondent registers all warehouse appli-
cants on the A list because the qualifications for A list registration are
extremely liberal. Respondent concedes that Nelson, at all times material
herein, met the qualifications to register on the contractual out-of-work
list maintained by Respondent for warehouse applicants.
I Respondent is a General Teamsters local whose jurisdiction cuts
across several industries, i.e., trucking, manufacturing, warehousing, and
has approximately 5,000 members of whom about 35 percent are ware-
house workers.
' Nelson was not hired through Respondent's hiring facility. However,
given the absence of a collective-bargaining agreement and the informal
hiring arrangements which existed at that time between Respondent and
the Employer, there was no obligation for the Employer to hire appli-
cants through Respondent's hiring facility.
ing John Greene, the Employer's shipping supervisor,
about I week before he actually started working. Nelson
was hired to replace Bob Lohi, a swing-shift forklift op-
erator who was on vacation. Nelson worked Friday, July
25, and Monday, July 28. The Employer, prior to hiring
Nelson, made no effort to secure a qualified applicant
from Respondent's hiring facility.
On Monday morning July 28, 1980, Donald Boggini, a
business representative for Respondent, phoned Shipping
Supervisor Greene and told him that Nelson was not a
member of Respondent and could not work for the Em-
ployer.5 Later that day Green spoke to Nelson at work
and asked whether he was a "Teamster." Nelson replied
that he was member of Teamsters Local 302. Greene
stated that he had been under the impression that it did
not matter which Teamsters local Nelson was a member
of, but had learned that it was important for Nelson to
be a member of Respondent. Greene instructed Nelson
to visit Respondent's office the next day and join Re-
spondent because in order to work for the Employer
Nelson had to be a member of Respondent. Greene told
Nelson to talk to Business Representative Boggini when
he visited Respondent's office. Nelson indicated he
would take care of this matter, as requested by Greene,
and worked for the remainder of this shift."
On July 29, at approximately 11 a.m., Nelson phoned
Respondent's office from his home and asked to speak to
Boggini and was advised that he was out of the office
until 1 p.m. 7 Almost immediately thereafter, Greene
phoned Nelson at home and instructed him to be sure to
visit Respondent's office early. Nelson indicated he had
just called Respondent's office and was on his way there.
Greene stated that he had talked to someone from Re-
spondent and that Nelson was going to have a "little
trouble" becoming a member of Respondent, but that
when Nelson became a member to notify Greene who
would give him a job. Nelson asked whether Greene's
' The description of Boggini's phone conversation with Greene is
based upon Greene's testimony. Boggini testified as an adverse witness
for the General Counsel. He was not called by Respondent. He testified
that, after discovering Nelson had been hired even though the Employer
had laid off an employee, he phoned Greene about Nelson. When asked
whether he told Greene that Nelson was not a member of Respondent,
Boggini testified, "I don't recall if I said that in those words or not," and,
when asked if he told Greene that Nelson "could not work at Container
Corporation," testified, "No, I didn't." This was the extent of his testimo-
ny about his July 28 phone conversation with Greene about Nelson. He
did not explain his purpose in phoning Greene to talk about Nelson nor
did he give his version of the conversation. In crediting Greene's testimo-
ny about their conversation I have considered the fact that Greene's
memory of the conversation was dulled to some extent by the passage of
time and that the Employer's management mistakenly thought that mem-
bership in Respondent was a condition of initial employment. However,
in testifiying about the July 28 conversation Greene gave me the impres-
sion that he was making a conscientious effort accurately to recall the
conversation, his testimony was given with sincerity, and he possessed
the demeanor of an honest witness, whereas Boggini did not impress me
as a sincere or reliable witness.
6 The description of this conversation is based upon Nelson's testimo-
ny. Greene also testimony about this conversation and his testimony does
not differ significantly from Nelson's; however, where it does differ I
have credited Nelson's because he impressed me as the more reliable wit-
ness by virtue of his impressive demeanor and the straightforward and
sincere manner in which he presented his testimony.
I Nelson worked the swing shift from 3 to 11 p.m., thus was not sched-
uled to start work that day until 3 p.m.
1256
FREIGHT DRIVERS, LOCAL 287
remarks meant that he was no longer employed by the
Employer. Greene answered in the affirmative and told
Nelson that he had already hired someone to take his
place. '
On July 29, 1980, at approximately I p.m. Nelson vis-
ited Respondent's office and spoke to Business Repre-
sentative Boggini.9 Nelson introduced himself and told
Boggini he wanted to transfer his Teamsters union mem-
bership from Local 302 to Respondent. Boggini stated
that Nelson could not transfer because Respondent was
full and had too many members out of work. Nelson
stated that he already had a job, as the Employer had in-
dicated there was a job opening for him and in fact he
had been working for the Employer for a couple of days.
Boggini asked whether Nelson had been dispatched to
this job from Respondent's hiring facility. When Nelson
answered, "no," Boggini handed him a copy of Respond-
ent's contract with the Employer and directed his atten-
tion to the exclusive hiring hall provision. After reading
this provision Nelson stated that he felt he should be able
to sign Respondent's out-of-work register inasmuch as he
met the qualifications set forth in the contract. Boggini
stated that Nelson could not sign the out-of-work regis-
ter "unless he was a member of Respondent." Nelson
pointed out that this was contrary to what the contract
stated. Boggini took the position that, "that was the way
it was," that Nelson could not sign the out-of-work list
unless he was a member of Respondent, and that Boggini
could not authorize his transfer from Local 302, but Re-
spondent's president, Frank Felice, was the only person
with the authority to authorize such a transfer. The con-
versation ended with Nelson arranging to meet with
Boggini and Felice at Respondent's office the next morn-
ing.
On July 29, Nelson, following his conversation with
Boggini, went to the Employer's facility and spoke to
Sandy Hinds, the Employer's personnel manager. ° He
informed Hinds that he was no longer working for the
Employer because he had been unable to comply with
Greene's request to join Respondent and he described for
Hinds his earlier conversation with Boggini. Hinds
agreed with Nelson that based on the language in the
governing collective-bargaining agreement Boggini
should have allowed Nelson to at least sign the out-of-
work register. At this point Hinds phoned Respondent's
office and asked the lady who answered the phone to
speak to Respondent's president. Hinds was informed
that the president was not in the office but that one of
the business representatives was available to speak to her
and the speaker turned the phone over to Business Rep-
resentative Boggini. " Hinds told Boggini that she was
s Nelson and Greene testified about this conversation. The above de-
scription is based on Nelson's testimony which was given in a straightfor-
ward and sincere manner. Greene's testimony was extremely sketchy in-
asmuch as he testified that his memory of the conversation was poor. Ac-
cordingly, I have rejected Greene's testimony where it conflicts with
Nelson's.
9 The description herein of Nelson's July 29 conversation with Boggini
is based on Nelson's undenied testimony.
'o The description herein of Nelson's conversation with Hinds is based
on Nelson's testimony.
" Hinds testified that, while she believes that it was Boggini she talked
to, she was not absolutely sure of this However. Respondent in its post-
hearing brief concedes that "it appears likely that the conversation was
calling on Nelson's behalf, that Nelson had worked for
the Employer for 26 days in 1979, had a good work
record, and was laid off due to lack of work. Hinds
asked if there was anything that the Employer could do
to help Nelson become a member of Respondent so that
Nelson could go back to work for the Employer. Bog-
gini replied that there were a lot of persons in Respond-
ent's hiring facility who were out work and that Re-
spondent was not accepting any new memberships and
that, in any event, Boggini did not have the authority to
reverse the decision not to let Nelson join Respondent
but he would be happy for Nelson to talk with Respond-
ent's president the next morning. 12
On July 30, as scheduled, Nelson met with Business
Representative Boggini and President Felice at Respond-
ent's office. Felice started the meeting by stating that he
knew Nelson wanted to transfer his membership from
Local 302 into Respondent, but that this was not possible
because Respondent was "all full." Felice explained that
Respondent had too many members out of work and was
not accepting any transfers and was not even accepting
its own members who were on withdrawal. Felice stated
that it would not be fair to permit Nelson to join Re-
spondent because Felice had already rejected similar re-
quests from other persons. Nelson pointed out that he
was already guaranteed a job if he could transfer his
membership. t3 Felice stated that if Respondent allowed
him to transfer his membership that he still could get laid
off by the Employer and then he would be on Respond-
ent's membership out-of-work "rolls." Nelson stated that
he did not expect to get laid off. Felice complained to
Nelson that the Employer while hiring Nelson at the
same time laid off an employee who had almost "got his
time in," 4 and asked if Nelson thought that was fair.
Nelson agreed that this was not fair but stated that it was
not his problem, that he just wanted to go to work as he
needed a job. Felice stated that Respondent intended to
sue the Employer for all of the hours that Nelson had
worked. Nelson stated that all he wanted to do was
transfer his membership from Local 302 to Respondent
or at the very least sign the out-of-work register. Nelson
declared that he had read the collective-bargaining
agreement and felt that if Felice did not let him sign the
out-of-work register he was discriminating against him
because the agreement stated that one did not have to be
a member of Respondent to sign the out-of-work regis-
ter. Felice stated that he would have to talk to Respond-
ent's lawyer about Nelson's assertion that he should be
able to sign the out-of-work list even though he was not
with Boggini," and, as described infra, when questioned by the General
Counsel. Boggini, in effect, admitted that he was the business representa-
tive that Hinds spoke to on July 29.
12 The description of Hinds' conversation with Boggini is based on
Hinds' undenied testimony. Boggini admitted that Hinds spoke to him
about Nelson and testified that Hinds told him the Employer wanted
Nelson to be able to transfer his membership into Respondent and that
the Employer wanted to employ Nelson.
la At this point Boggini made his only comment. He said, "For all we
know you may not even be in good standing in Local 302." Nelson told
him that all they had to do was phone Local 302 and ask about his mem-
bership status.
' This apparently refers to sufficient time to become a seniority em-
ployee under the terms of the contract
1257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a member and that Nelson could phone him the next
day. l5
Respondent presented testimony that immediately after
the aforesaid July 29 meeting Felice and Respondent's
dispatcher Cordova asked Nelson to sign up on Re-
spondent's out-of-work list and that Nelson refused. On
direct examination Felice testified that as Boggini,
Nelson, and himself exited the office they met Dispatch-
er Cordova, that Felice introduced him to Nelson stating
to Nelson that Cordova was the dispatcher who signed
up people in the hiring hall. Felice testified that nothing
else was stated. On cross-examination, however, Felice
testified that he told Nelson that Cordova was the person
who will sign "you" up and that Nelson walked off with
Cordova. On direct examination, Cordova testified that
on a date he does not remember Felice, in Boggini's
presence, introduced him to Nelson outside Felice's
office. Cordova testified that Felice told Nelson to sign
the out-of-work list and that Nelson followed Cordova
to Respondent's hiring facility but did not sign the out-
of-work list. On cross-examination, however, Cordova
testified that Felice instructed him to have Nelson sign
the out-of-work list, that Cordova told Nelson to come
with him to the hiring facility but that Nelson refused to
go with him. Boggini did not testify. Nelson denied that
this encounter ever took place and testified that the first
time he ever met Cordova was on October 22, 1980,
long after the events material to the alleged unfair labor
practices. As I have indicated supra, Nelson in general
was an impressive witness. His demeanor was that of an
honest witness intent on telling the truth, and he gave his
testimony in a sincere and convincing manner. Felice's
and Cordova's demeanor was poor. Boggini was not
called to corroborate their testimony. It is for these rea-
sons that I reject Respondent's evidence that on July 29,
after Nelson's meeting with Felice and Boggini, Felice
introduced Nelson to Cordova and both Felice and Cor-
dova or either one of them indicated that Nelson could
sign Respondent's out-of-work list.
On July 31 Nelson phoned Respondent's office and
asked to speak to Felice, but was informed he was out of
town all day on an arbitration. Nelson then contacted the
Board's Regional Office and filed the instant unfair labor
practice charge on August 1, 1980, alleging that Re-
spondent was discriminating against him "by failing to
allow him to sign up on Local 287's out-of-work list be-
cause he is not a member of Local 287" and that by this
conduct "Local 287 has unlawfully prevented [the Em-
ployer] from employing [Nelson]."
On October 10, 1980, after the issuance of the com-
plaint herein, Respondent wrote Nelson and the Employ-
er stating that, while it was not admitting the alleged
unfair labor practices which the complaint attributed to
'5 The description of the July 29 meeting among Nelson. Boggini, and
Felice is based on Nelson's testimony. Nelson and Felice testified about
this meeting. Felice's testimony differs sharply from Nelson's in several
significant respects One such difference is Felice's assertion that he told
Nelson to go next door to Respondent's hiring facility and sign its out-of-
work list. I have rejected Felice's version of this meeting because Nelson
gave his testimony in a straightforward and sincere manner and demean-
orwise impressed me as a more credible witness than Felice whose de-
meanor was unimpressive. Also. Respondent failed to call Boggini to cor-
roborate Felice.
it, in order to avoid incurring a potential backpay liabili-
ty, it had no objection to Nelson signing Respondent's
out-of-work list and would immediately clear him for a
job with the Employer. On October 22 Nelson signed
the out-of-work list and on October 24 was dispatched to
a job with the Employer.
C. Discussion and Conclusionary Findings
1. Respondent caused Nelson's discharge
In agreement with the General Counsel I find that the
record establishes that Respondent caused Nelson's dis-
charge and in doing so was motivated by his nonmem-
bership in Respondent.
As described in detail supra, Respondent's business
representative, Boggini, on July 28, 1980, after learning
that Nelson had been hired by the Employer while an-
other employee was being laid off, told the Employer's
shipping supervisor, Greene, that Nelson was not a
member of Respondent and could not work for the Em-
ployer. Later that day Greene informed Nelson, who
was not a member of Respondent, that in order to work
for the Employer he had to be a member of Respondent
and directed him to visit Respondent's office the next
day and talk to Boggini about joining Respondent. The
next day Greene replaced Nelson with another employee
and informed Nelson he had been terminated until he
succeeded in joining Respondent.
I am persuaded that Boggini's message to Greene that
Nelson was not a member of Respondent and could not
work for Respondent amounted to an order or demand
that Greene terminate Nelson's employment. Boggini's
statement to Greene that Nelson could not work for the
Employer, on its face, was reasonably calculated to
cause Greene to act exactly as he did upon receipt of the
message, namely, to discharge Nelson. It is of no conse-
quence that Boggini did not in haec verba demand that
Nelson be terminated, for, the "relationship of cause and
effect, the essential feature of Section 8(b)(2), 'can exist
as well where an inducing communication is in terms
courteous or even precatory as where it is rude or de-
manding."' N.L.R.B. v. St. Joe Paper Co., 319 F.2d 819,
820-821 (2d Cir. 1963), quoting from N.L.R.B. v. Jarka
Corporation of Philadelphia, 198 F.2d 618, 621 (3d Cir.
1952). 16 Accord: Laborers and Hod Carriers Local No.
341 v. N.L.R.B., 564 F.2d 834, 839 (9th Cir. 1978). It is
for these reasons that I find that the record establishes
that Respondent attempted to cause and in fact caused
Nelson's discharge. "7
Regarding Respondent's motivation for causing Nel-
son's discharge, I am persuaded that the General Counsel
16 In St. Joe Paper Co., supra, the court held that the statement by a
union official to an employer that as long as the shop was a union shop,
"the union man ... [shouldJ be kept on" was sufficiently coercive to
constitute a violation of Sec 8(b)(2). Similarly, in Jrka. supra, the court
held that the statements, "you can't carry ... [a nonmember] of the
union" and "you got to take [a union] man," were violative of the Act.
'' The fact that Employer's officials mistakenly thought that under the
terms of governing collective-bargaining agreement membership in Re-
spondent was a condition of initial employment does not establish that
the Employer without the prompting of Boggini. would have terminated
Nelson.
1258
FREIGHT DRIVERS, LOCAL 287
made a prima facie showing that Nelson's nonmember-
ship in Respondent was a motivating factor in Respond-
ent's decision to cause Nelson's discharge. " As described
supra, Boggini, in notifying Greene that the Employer
could no longer employ Nelson, based this demand
solely on Nelson's lack of membership in Respondent.
This was tantamount to an admission that it was Nelson's
nonmembership which prompted Respondent to seek his
termination. This evidence submitted by the General
Counsel effectively shifted the burden to Respondent to
show that it would have attempted to cause Nelson's dis-
charge even if he had been a member of Respondent. In
this respect, Respondent showed that Nelson was hired
by the Employer in derogation of the exclusive hiring
provision contained in the governing collective-bargain-
ing agreement. However, this was not the reason Re-
spondent gave to the Employer in demanding Nelson's
discharge and, even more significant, Respondent failed
to call one witness to explain its motivation for request-
ing Nelson's discharge. In view of the foregoing, I con-
clude that Respondent failed to meet its burden of show-
ing that the same action would have taken place in the
absence of Nelson's nonmembership in Respondent.
Based on the foregoing I find that Respondent caused
the Employer to discharge Nelson on July 29, 1980, be-
cause Nelson was not a member of Respondent, thereby
violating Section 8(b)(2) and ()(A) of the Act.
2. Respondent refused to permit Nelson to register
on its out-of-work register
In agreement with the General Counsel I find that Re-
spondent refused to allow Nelson to sign its hiring hall
out-of-work register because he was not a member of
Respondent.
As described in detail supra, on July 29, 1980, Nelson
asked Business Representative Boggini if he could sign
Respondent's out-of-work list. Boggini told him that he
could not sign the out-of-work list unless he was a
member of Respondent and that Respondent could not
accept him as a member. The next day, as described
supra, President Felice also refused Nelson's request to
sign the out-of-work list and like Boggini based his refus-
al on the fact that Nelson was not a member of Respond-
ent. Respondent presented no evidence to justify its re-
fusal to permit Nelson to sign its out-of-work list. 9
Based on the foregoing I find that on July 29, 1980,
and July 30, 1980, Respondent refused to permit Nelson
to sign the out-of-work list it maintained in its hiring fa-
cility because he was not a member of Respondent,
thereby violating Section 8(b)(2) and ()(A) of the Act.
3. Respondent refused to issue Nelson a work
referral
In agreement with the General Counsel I find the
record establishes that Respondent refused to issue a
work referral to Nelson because of his nonmembership in
Respondent.
" In evaluating Respondent's motivation I have used the test set forth
in Wright Line, a Division of Wright Line Inc., 251 NLRB 1083 (1980)
t9 The record establishes and Respondent concedes that Nelson was
eligible to sign the out-of-work list
As I have found supra, that on July 29. 1980, when
Nelson informed Business Representative Boggini that he
had a job with the Employer and wanted to sign Re-
spondent's out-of-work list, Boggini unlawfully refused
to permit him to sign the out-of-work list because he was
not a member of Respondent. Later that day, as de-
scribed supra, the Employer's personnel manager, Hinds,
spoke to Boggini about Nelson and advised Boggini that
Nelson had previously worked for the Employer and
was a good worker and asked Boggini to permit Nelson
to join Respondent so he could go to work for the Em-
ployer. Boggini replied that Respondent was not accept-
ing new members.
I am persuaded that taken in context Personnel Man-
ager Hinds' July 29 remarks to Boggini constitute a re-
quest that Respondent refer Nelson by name to the Em-
ployer, pursuant to the terms of the governing collec-
tive-bargaining agreement, :2 and were reasonably calcu-
lated to be understood by Boggini. Boggini failed to ac-
knowledge the Employer's contractual right to call for
Nelson by name regardless of his membership status or
ranking on the out-of-work list; instead Boggini by his
response to Hinds indicated that the Employer could not
employ Nelson because he was not a member of Re-
spondent.
Based on the foregoing I find that Respondent refused
to issue a referral to Nelson on July 29 for a job with the
Employer because Nelson was not a member of Re-
spondent, thereby violating Section 8(b)(2) and (1)(A) of
the Act.
CONCLUSIONS OF LAW
I. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. The Employer, Container Corporation of America,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
3. By causing the Employer to discharge Nelson on
July 29, 1980, by refusing to permit Nelson to sign its
out-of-work register on July 29, 1980, and July 30, 1980,
and by refusing to refer Nelson to a job with the Em-
ployer on July 29, 1980, because Nelson was not a
member of Respondent, the Respondent has caused or
attempted to cause employer discrimination within the
meaning of Section 8(a)(3) of the Act, and has therefore
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(b)(2) and (1)(A) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
20 The governing collective-bargaining agreement provides, in perti-
nent part, that if an applicant is registered on Respondent's out-of-work
register that an employer may call for the applicant by name if the appli-
cant has previously worked for the Employer and is suitable for the job.
Nelson had previously worked for the Employer and, as found supra, had
been illegally precluded from signing the out-of-work list
1259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to ef-
fectuate the policies of the Act.
I have found that Respondent unlawfully caused the
Employer to discharge Nelson on July 29, 1980, and un-
lawfully refused to allow Nelson to sign its out-of-work
register on July 29 and 30, 1980, and unlawfully refused
to refer Nelson to a job with the Employer on July 29,
1980. The record reveals that subsequently, pursuant to
Respondent's request, the Employer reinstated Nelson to
his former position on October 24, 1980. In view of this I
shall recommend that in order to remedy its unfair labor
practices found herein Respondent make Nelson whole
for any loss of wages and benefits suffered by reason of
the discrimination against him from the date of his dis-
charge to the date of his reinstatement (see Sheet Metal
Workers' Union Local 355 (Zinsco Electric Products), 254
NLRB 773 (1981)), less his net earnings during this
period. The loss of earnings shall be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest on the backpay due
computed in accordance with Board policy set out in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), and
Florida Steel Corporation, 231 NLRB 651 (1977). Howev-
er, nothing herein shall preclude Respondent from estab-
lishing in the compliance stage of this proceeding that
the Employer would have terminated Nelson on or
about August 4, 1980, the date employee Lohi was
scheduled to return from his vacation and from establish-
ing that even if Nelson had been permitted to register on
Respondent's out-of-work list he would not, during the
normal course of business, been referred to a job.
Upon the foregoing findings of fact, conclusions of
law, and the entire record and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER2 '
The Respondent, Freight, Construction, General Driv-
ers, Warehousemen and Helpers, Local Union 287, Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, San Jose, California,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Container Corpora-
tion of America to discriminate against Gregg C. Nelson
or any other employee in violation of Section 8(a)(3) of
the Act.
(b) In any other like or related manner restraining or
coercing employees of Container Corporation of Amer-
ica in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
21 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(a) Make Gregg C. Nelson whole for any loss of
wages and benefits suffered by reason of the discrimina-
tion against him from the date of his discharge, July 29,
1980, to the date of his reinstatement by Container Cor-
poration of America, October 24, 1980, with backpay
computed in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Post at its office and meeting halls copies of the at-
tached notice marked "Appendix."22 Copies of said
notice, on forms provided by the Regional Director for
Region 32, after being duly signed by Respondent's rep-
resentative, shall be posted 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. Rea-
sonable steps shall be taken by Respondent and its agents
to insure that such notices are not altered, defaced, or
covered by any other material.
(c) Forward to the said Regional Director signed
copies of said notice for posting by the Container Corpo-
ration of America, if it is willing, at its Milpitas, Califor-
nia, facility for 60 consecutive days in places where no-
tices to employees are customarily posted.
(d) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
2 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Contain-
er Corporation of America to discriminate against
Gregg C. Nelson or any other employee in viola-
tion of Section 8(a)(3) of the National Labor Rela-
tions Act.
WE WILL NOT in any like or related manner re-
strain or coerce employees of Container Corpora-
tion of America in the exercise of the rights guaran-
teed them in Section 7 of the National Labor Rela-
tions Act, except to the extent that such rights may
be affected by an agreement requiring membership
in a labor organization as a condition of employ-
ment as authorized by Section 8(a)(3) of the Act.
WE WILL make Gregg C. Nelson whole, with in-
terest, for any loss of wages and benefits suffered by
reason of the discrimination against him from the
1260
FREIGHT DRIVERS, LOCAL 287 1261
date of his discharge to the date of his reinstatement
by Container Corporation of America.
FREIGHT, CONSTRUCTION, GENERAL
DRIVERS, WAREHOUSEMEN AND HELPERS,
LOCAL UNION 287, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA