International Brotherhood Of Teamsters, Chauffeurs, Warehousemen And Helpers Of America (J. W. Daly, Inc.)

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 974 (N.L.R.B. 1986)

974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters Local 42, a/w International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and
Helpers of America Q. W. Daly, Inc.) and
Ralph Zahn . Case 1-CB-6176
30 September 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 23 April 1986 Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel resubmitted her brief to
the judge in support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Teamsters Local 42, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Lynn, Massachusetts,
its officers , agents, and representatives , shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(c).
"(c) Mail to the Regional Director signed copies
of the above-mentioned notice for posting by J. W.
Daly, Inc., if it is willing, in places where notices
to employees are customarily posted."
2. Insert the following as paragraph 2(d).
"(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
' The judge granted the General Counsel 's request that the Order in-
clude a visitatorial clause authorizing the Board to obtain discovery from
the Respondent We find it unnecessary to include such a clause in this
case and shall modify the recommended Order accordingly
Anthony di Ciero, Esq., for the General Counsel.
Gabriel O. Dumont Jr., Esq. (Grady, Dumont & Dwyer),
of Boston , Massachusetts, for the Respondent.
Jerome N. Weinstein, Esq. (Mintz, Levin, Cohn, Ferri
Glusky & Popeo, P.C.), of Boston, Massachusetts, for
the Employer.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. The trial
in this matter was held in Boston , Massachusetts, on 16
January 1986 , pursuant to a charge filed on 2 April 1985.
The complaint, dated 23 September 1985, alleges that
Teamsters Local 42 (Local 42 or Respondent) violated
Section 8(b)(1)(A) and (2) of the National Labor Rela-
tions Act (the Act) by establishing a seniority list that
placed bargaining unit employees at a more recently or-
ganized Daly plant behind previously unionized employ-
ees at another Daly facility.
Local 42 denies the commission of any unfair labor
practice and asserts as an affirmative defense that the
complaint is time barred by Section 10(b) of the Act.
On the entire record in this case and after considering
the demeanor of the witnesses and the parties' posttrial
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
J. W. Daly, Inc., the Employer, a corporation with of-
fices and places of business in Lawrence, Lynnfield, and
Peabody, Massachusetts, was engaged at all material
times herein in the wholesale distribution of hospital sup-
plies, drugs, and related products . During the calendar
year ending 31 December 1984 , the Employer, in the
course and conduct of its business , sold, shipped, pur-
chased, and received at its plants products, goods, and
materials valued in excess of $50,000 directly to and
from points beyond the Commonwealth of Massachu-
setts. Accordingly , the complaint alleges, the Respondent
admits, and I find that J. W. Daly, Inc. is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Teamsters Local 42 is now, and has been at all materi-
al times herein , a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Until 6 June , J. W. Daly operated two facilities: one in
Lynnfield, the other in Lawrence, Massachusetts. Local
42 has represented the warehousemen and truckdrivers at
the Lynnfield location in separate units since 1977.1
Sometime in 1982 Daly decided to consolidate its oper-
ations and bring its employees under one roof. Initially,
the Employer favored expanding the Lynnfield site and
advised its personnel to this effect.
In anticipation of the merger, the Lawrence employees
contacted the Union to explore representation. After
meeting with the Lawrence warehousemen during the
spring of 1983, Philip Morin, Local 42's vice president
and business agent, sent a letter to all Lawrence employ-
ees in June outlining the advantages of union representa-
The truckdnvers are not involved in this case
281 NLRB No. 132
TEAMSTERS LOCAL 42 (DALY, INC.) 975
tion . On the issue of seniority, the letter stated , inter alia
(G.C. Exh. 8):2
If you were under a collective bargaining agree-
ment with the Teamsters and a move resulted, [I]
would negotiate to retain seniority for vacation pur-
poses . I would negotiate to have you slot in ahead
of anybody presently at Daly's in Lynnfield.
Then on 23 June 1983 Morin met with the Lawrence
employees to finally review the benefits of union mem-
bership. Morin reminded the employees that if they
joined Local 42 they would be immediately covered by
the Union's pension plan, thereby receiving 2 years'
credit for each year worked, whereas, if they did not
join, they would be treated as new employees on their
transfer to Lynnfield and receive no credit for years in
service at Lawrence . Moreover, Morin stated that union
membership would assure then a pay wage on their
transfer equal to that earned by the Lynnfield employees.
However, he candidly told the group that the Lynnfield
employees would have preference in seniority regardless
of the individual's date of hire. In other words , for se-
niority purposes other than vacations , the Lawrence em-
ployees would be "entitled" rather than "dovetailed"
when the consolidation occurred. At the instant hearing,
Morin further explained that the Lynnfield employees,
who outnumbered those at Lawrence, were adamant
about preserving their seniority. Consequently, he ad-
vised the assembled Lawrence employees they would be
dovetailed only if the dominant Lynnfield group assent-
ed.
The upshot of this meeting was that the Lawrence
warehousemen joined Local 42. The Employer voluntar-
ily recognized the Union and on 1 July 1983 executed a
collective -bargaining agreement which was virtually
identical to the one covering the Lynnfield bargaining
unit and which bore the same expiration date 1 April
1986. Both agreements accorded seniority to the employ-
ees at their respective facilities only for purposes of lay-
offs, recall , and vacations.
By the end of the summer, the Employer abandoned
its plan to consolidate in Lynnfield . Instead , property
was purchased in Peabody , Massachusetts and construc-
tion commenced there in September 1983. Shortly there-
after , drawings of the new facility were exhibited at both
Daly plants.
Throughout the balance of 1983 and into 1984, the
Lawrence warehousemen lodged objections to the end-
tailing concept, bringing their complaints to Morin's at-
tention through their steward , Paul Kuchar . They were
particularly aggrieved at the prospect of being endtailed
behind employees who might be newly hired at the
Lynnfield plant.
To allay these concerns , Daly and the Union entered
into a written agreement on 14 October 1983 which pro-
vided that "all Lawrence . . . employees will have se-
niority after Lynnfield employees at year end , but that
2 Hereafter General Counsel 's Exhibits will be cited as G.C Exh. Re-
spondent's Exhibits as Reap. Exh.
any new employees after 1 /1/84 from either office will
be junior in seniority to either group ." (Resp . Exh. 3.)
Both Morin and Fred Frenzo , a Lynnfield foreman,
believed that in the latter part of 1983 Daly announced
that it would introduce a second shift at the new Pea-
body facility. 3 However, Frenzo acknowledged that the
Employer did not propose names of likely workers to be
assigned to the later shift until sometime in 1984.
Kuchar , who was involved in the assignment because of
familiarity with the Lawrence employees , recalled no
mention of a second shift until the spring of 1984.4
More concrete steps with regard to identifying and no-
tifying those who would serve on the second shift did
not come about until the fall of 1984 . By memo dated 15
November, Morin notified the Lawrence and Lynnfield
employees who had been assigned to the second shift of
a special meeting to be held on 27 November to discuss
the matter.(G.C. Exh. 6.)6
A final negotiating session to conclude plans for the
new shift was held in January 1985 . During this meeting,
Jim Daly , then the Lawrence plant manager , questioned
the rationale for granting Lawrence employees less se-
niority than the Lynnfield workers . One of the union
agents present explained simply that the people at Lynn-
field had more seniority . At the hearing , Arthur Hoff-
man, a long-term union steward , candidly admitted that
the Lawrence employees were endtailed because they
had not been union members as long as their Lynnfield
counterparts . He amended his answer in response to a
leading question on redirect examination to add that the
Lynnfield employees had greater seniority under the
contract.
Employees from both facilities moved into the Pea-
body plant on 6 June 1985 . Since that time , openings
which became available on the day shift have been filled
by former Lynnfield employees who, under a dovetailing
seniority system would have been junior to some of the
former Lawrence warehousemen.
III. DISCUSSION AND CONCLUDING FINDINGS
In the landmark Vaca v. Sipes decision , 6 the Supreme
Court held that a collective-bargaining representative has
a statutory obligation to serve the interest of all members
without hostility or discrimination . However, because its
members may have many divergent interests, a labor or-
ganization may have to negotiate terms, including vari-
ous seniority systems, which discriminate between classes
of employees. As long as the Union's accommodation of
The Lawrence and Lynnfield plants functioned with only one shift.
The union leadership may have had some advance knowledge of the
Employer's interest in a night shift . However , it is unlikely that informa-
tion about the proposal was widely disseminated in 1983 because plans
for the Peabody plant had just crystalized that fall and operations would
not commence for another year and a half Thus , any allusions in 1983 to
the start of a night shift at Peabody in 1985 had to be somewhat amor-
phous.
a A comparison of G.C. Exh. 6 with G.C. Exh . 4 shows that if seniori-
ty had been based on date of hire , then a number of Lawrence employees
selected for the second shift (e.g., George Lanouette, Mike Naroian, and
Jerry Lamieux) would have been much higher on the seniority list and,
therefore, in a more advantageous position to decline the assignment or
subsequently bid for openings on the day shift as they became available.
6 386 U.S. 171, 177 (1967).
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees' conflicting interest in not arbitrary nor
undertaken in bad faith, the mere existence of distinctions
does not necessarily make the decision unlawful or in-
valid. See Ford Motor Co. v. Huffman, 345 U.S. 330, 338
(1950).
Stated conversely, a union may not exercise its power
to the disadvantage of a group for hostile motives or for
other impermissible reasons. For example, in Barton
Brands v. NLRB, 529 F.2d 793 (7th Cir. 1976), the court
ruled that a union may not advocate an endtailing clause
solely because it is politically expedient to do so. While
recognizing that a union may make seniority decisions
within a wide range of reasonableness, the court stated
that "such decisions may not be solely for the benefit of
a stronger, more politically favored group over a minori-
ty group." Id. at 798-799. Such conduct is violative of
Section 8(b)(1)(A). Id. at 799.7 The court also found a
violation of Section 8(b)(2)8 when the union's ability to
cause the employer to discriminate against employees be-
cause of the length of union membership was likely "to
have an intimidating effect on workers who might other-
wise prefer to refrain from union membership." Ibid. Ad-
hering to the circuit court's ruling on remand, the Board
agreed that the union's endtailing decision violated the
duty of fair representation for the union had failed to
show the requisite "objective justification for its conduct
beyond that of placating the desires of the unit employ-
ees at the expense of the minority." Barton Brands., 228
NLRB 889, 892 (1977). See also Teamsters Local 380
(Whiting Milk), 145 NLRB 1035 (1964), enf. denied 342
F.2d 8 (1st Cir. 1965)9 (union violated the Act by imple-
menting a system which gave inferior seniority status to
employees in a newly acquired unrepresented unit);
Teamsters Local 568 (Red Ball Freight), 157 NLRB 1237
(1966) (union unlawfully insisted on endtailing rather
than dovetailing in order to influence a representation
election at a newly consolidated unit composed of two
formerly separate entities).
Against the framework provided by the above prece-
dents, the question here is whether Respondent's refusal
to negotiate a dovetailing system for all its Daly mem-
bers stemmed from the fact that the Lawrence employ-
ees were more recent converts to the Local's ranks than
were the Lynnfield employees, or whether endtailing
was "predicated upon a bona fide attempt to resolve a
problem frequently arising from business merger." Simon
Levi Co., 181 NLRB 826, 827 (1970).
In the present case, Local 42 clearly was on the horns
of a dilemma: no matter what seniority system it pro-
posed, one group of Daly employees would be adversely
affected and discontented. While acknowledging Re-
spondent's predicament, I nevertheless conclude that the
Union could not lawfully resolve its problem by conduct
Sec 8(b)(l)(A) of the Act prohibits a labor organization from re-
straining or coercing employees in the exercise of rights guaranteed by
Sec 7 of the Act
8 Sec 8(b)(2) of the Act makes it an unfair labor practice for a union
to cause or attempt to cause an employer to discriminate against an em-
ployee in violation of Sec. 8(a)(3).
9 The court failed to enforce the Board 's decision on the grounds that
unrepresented employees have no right to seniority which is contractual-
ly based
which placated the Lynnfield employees because of their
greater numbers and lengthier union membership in pref-
erence to the Lawrence employees. See Barton Brands,
228 NLRB at 892.
Respondent presents several arguments to defend the
legitimacy of its decision. First, the Union contends that
endtailing was justified because the Lynnfield workers
had lengthier tenure in the unit. This contention has no
factual basis because the represented employees at both
locations formed one new unit at the time that they
moved simultaneously into the Peabody facility. More-
over, unlike Simon Levi Co., supra, no clause existed in
the collective-bargaining agreements which compelled
the Union to advocate an endtailing system here.
Respondent next submits that the endtailing decision
was a reasonable exercise of its discretion; in the face of
an impeding merger, Local 42 was merely attempting to
protect the seniority of its current members while at the
same time accommodating the interests of hitherto un-
represented employees. Respondent's solution to what
was at best a ticklish situation clearly did not spring from
hostile motives. Nevertheless, the case law persuades me
that in the circumstances of this case, that is, when both
groups of employees were represented prior to the time
that they were fused into one new unit, Respondent
could not refuse to consider or negotiate a dovetailing
system solely because the Lawrence employees joined
Local 42 more recently than did the Lynnfield members.
By favoring the Lynnfield employees, Respondent in
effect (if not intent) penalized the Lawrence group for
their past exercise of a Section 7 right-that is, the right
to refrain from engaging in union activity.
Respondent further contends that the Lawrence em-
ployees organized with the express understanding that
they would be endtailed. In fact, the record shows that
the Lawrence employees submitted to endtailing at a
time when they believed that they would be consolidated
at Lynnfield, where custom dictated that transferees
would be junior to those in the existing unit. Not until 3
or 4 months after the crucial union vote was taken
among the Lawrence warehousemen did the Employer
decide to move all its employees to a new facility. Thus,
it would be inaccurate to conclude that the Lawrence
employees acquiesced unqualifiedly to an endtailing deci-
sion. Even assuming, arguendo, that the Lawrence group
willingly assented to endtailing regardless of location,
such a waiver may not be permissible when obtained to
reward others for being "`good' active union members."
NLRB v. Niagara Machine & Tool Works, 746 F.2d 143,
150 (2d Cir. 1984), enfg. 267 NLRB 661 (1983). In the
court of appeals' opinion, "[t]he right to be free from dis-
crimination that encourages active support of the incum-
bent union is . . . not amenable to waiver." Id. at 161.
Accordingly, I conclude that Respondent has failed to
present justification for its endtailing position. It follows
that the Union's conduct in this regard violates Section
8(b)(1)(A) and (2) of the Act.
TEAMSTERS LOCAL 42 (DALY, INC.) 977
Section 10(b)
The Union asserts as an affirmative defense that the
charge is time barred under Section 10(b) of the Act' 10
According to the Respondent, the operative events
giving rise to the charge in this case occurred as early as
June 1983, when the Union's vice president announced
Local 42's position on endtailing to the Lawrence em-
ployees, and no later than October 1983, when the Union
and the Employer executed an agreement formalizing the
endtailing decision. Citing Postal Service Marina Center,
271 NLRB 397 (1984), for the proposition that the statu-
tory period begins to run from the time that "a final ad-
verse employment decision is made and communicated to
an employee," rather than when the consequences take
effect, Respondent, contends that the charge in the in-
stant proceeding filed on2 April 1985 was untimely.
The General Counsel 'counters that the facts in the
present case are distinguishable from those in Postal Serv-
ice in that no precise, unequivocal decision was commu-
nicated to the employees until January 1985 when the
Union refused to consider dovetailing the Lawrence em-
ployees at a collective-bargaining session with manage-
ment.
Although Postal Service was limited by its facts to a
discrete and final adverse employment decision, the les-
sons of that ruling can be applied by analogy to the in-
stant matter. Using that case as a point of departure, I
'find, in concurrence with the General Counsel, that the
Lawrence employees had no cause of action in 1983 for
at that early time the decision to consolidate was incho-
ate and anticipatory, impinging on employees' rights in
only an abstract manner.
The bare announcement by the Union of its position
on endtailing in 1983 could raise no more than the spec-
tre of harm. At that time, consolidation and endtailing
still were quite remote. In fact, neither of these events
materialized until almost 2 years later. Raising the pros-
pect of future harm is a far different matter than the un-
equivocal "final [unconditional] adverse employment de-
cision" involved in Postal Service Marina Center, supra at
400. Not until November 1984 were specific Lawrence
employees notified that they would be assigned to a
second shift and endtailed behind Lynnfield employees
assigned to the same shift, some of whom had less com-
panywide seniority. Because it was not at all clear
whether or how the Lawrence employees would be af-
fected by the early endtailing in 1983, Respondent's
stance lacked the requisite definitiveness and certainty.
A second defect in the Union's 10(b) argument in-
volves its failure to give advance notification of the end-
tailing decision to the specific employees adversely af-
fected thereby. As the Board reaffirmed in the Postal
Service case, notice to the Charging Party is required in
order to trigger the 10(b) period. Ibid. That notice,
whether actual or constructive, must be clear and unam-
biguous and the burden of showing such notice is on the
party raising the affirmative defense of Section 10(b). See
Weyerhauser Co., 274 NLRB 972 (1985). Because the
10 Sec 10(b) provides that "no complaint shall issue based upon any
unfair labor practice occurring more than 6 months prior to the filing of
the charge."
record contains no evidence that a final adverse employ-
ment decision was unequivocally communicated to the
Lawrence employees prior to 15 November 1984, a
charge based on that decision dated 2 April 1985 was
within the 6-month period and thus was timely filed."
Consequently, Respondent's 10(b) defense must fail.
CONCLUSIONS OF LAW
1. J. W. Daly, Inc. is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Teamsters Local 42, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen' and Helpers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
3. Teamsters Local 42, violated Section 8(b)(1)(A) and
(2) of the Act by refusing to negotiate a seniority list
which would dovetail the seniority of two represented
units after they merged into one unit at J. W. Daly's
Peabody location solely because the employees at the
Lynnfield facility had been union members for a longer
period of time than those at the Lawrence plant.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in the unfair
labor practices cited above, it is recommended that it be
ordered to cease and desist and to take certain" affirma-
tive action designed to effectuate the policies of the Act.
Respondent shall be ordered to notify the Employer
and the former Lawrence employees that it has no objec-
tion to dovetailing the seniority lists of all represented
employees in the above-described unit.
In conformance with a recently announced policy,12
the General Counsel requests that a visitatorial clause be
included in the proposed Order, which would authorize
the Agency to examine Respondent's books and records
and take statements from its officers and employees for
the purpose of determining and securing compliance
with a court's judgment.
I have no reason to believe that Local 42 would not
voluntarily and in good faith comply with an order in
this case nor fail to make available to the Board any doc-
uments needed to assure compliance. At the same time,
including a visitatorial clause now could conceivably
avoid problems in the future without causing any preju-
dice to Respondent's interest or an unwarranted intrusion
into its records. Accordingly, a visitatorial provision
shall be included in the proposed Order.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed13
" The absence of unequivocal notice to the individual employees af-
fected by the endtailing decision distinguishes the present matter from
Bowen Products Corp., 113 NLRB 731 (1955), a case on which the Re-
spondent heavily but incorrectly relies
12 See G C memorandum 85-5 (120 LRRM 137)
13 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purpose
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Teamsters Local 42, a/w Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Lynn , Massachusetts , its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Failing to fairly represent former Lawrence em-
ployees by refusing to negotiate a seniority list which
would dovetail the seniority of the former Lawrence and
Lynnfield employees after they transferred to the Em-
ployer's Peabody facility.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify the Employer and all former Lawrence em-
ployees that it has no objection to their restoration to a
position on the seniority list which reflects their length
of service with J. W. Daly, Inc.
(b) Post at its business offices and meeting halls in
Lynn, Massachusetts, copies of the attached notice
marked "Appendix." 114 Copies of the notice, on forms
provided by the Regional Director for Region 1, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. For the purpose of deter-
mining or securing compliance with this Order, the
Board , or any of its authorized representatives, may
obtain discovery from the Respondent, its officers,
agents, successors, or assigns, or any other person having
knowledge concerning any compliance matter, in the
manner provided by the Federal Rules of Civil Proce-
dure. Such discovery shall be conducted under the su-
pervision of the United States court of appeals enforcing
this Order and may be had on any matter reasonably re-
lated to compliance with this Order, as enforced by the
court.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT encourage membership in, or activities
on behalf of, Teamsters Local 42, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization,
by refusing to negotiate a seniority list which dovetails
the seniority of former Lawrence and Lynnfield employ-
ees based on the length of service with J. W. Daly, Inc.,
or in any other manner discriminate against employees in
regard to their hire or tenure of employment or any term
or condition of employment except to the extent permit-
ted by Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
TEAMSTERS LOCAL 42, A/W INTERNATION-
AL BROTHERHOOD OF TEAMSTERS , CHAUF-
FEURS , WAREHOUSEMEN AND HELPERS OF
AMERICA
14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "