Local 282 (Lizza and Sons, Inc.)

National Labor Relations Board - Board Decisions

Jun 23, 1967

165 N.L.R.B. 997 (N.L.R.B. 1967)

LOCAL 282 (LIZZA AND SONS, INC.)
Local 282, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America and James L. Melillo
and Lizza and Sons, Inc., Party in Interest.
Case 29-CB-236
June 23,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On March 29, 1967, Trial Examiner Morton D.
Friedman issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter the General
Counsel and the Charging Party filed exceptions to
the Trial Examiner's Decision and the General
Counsel filed a supporting brief. The Respondent
filed a brief in answer to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent with
this Decision and Order.
We agree with the findings of fact made by the
Trial Examiner, but disagree with his conclusions.
As found in the Trial Examiner's Decision, James
Melillo began working for Lizza in 1950, and in 1951
became a driver and a member of the Union. He
drove a truck until August 1960, when he reinjured
his leg and was forced to give up driving. Lizza then
employed him as a "runner." Melillo admitted that
this was a management position. In the early
summer of 1965 his leg healed to the point where he
could resume driving. He asked Lizza to reinstate
him as a driver. Lizza referred him to the Union.
When Melillo made the request to the Union, he was
told to apply in writing to the executive board. After
a hearing held pursuant to his application, the
executive board notified him on January 25, 1966,
that he was being reinstated, and restored him to
number 13 on the driver seniority list. Shortly
thereafter a number of other Lizza drivers objected
to the executive board's action and filed charges
against Melillo for antiunion conduct. As a result, on
February 15 the executive board notified Melillo that
165 NLRB No. 124
997
he would have to appear again at a hearing. At that
hearing, he was called upon to answer the charges
that he had engaged in antiunion conduct and also
that because he had been out of the unit he was not
entitled to seniority. After the hearing the executive
board, by letter dated March 29, 1966, withdrew
Melillo's seniority, without specifying a reason for its
action. The complaint alleged that by this action the
Respondent violated Section 8(b)(1)(A) of the Act.
The Trial Examiner dismissed the complaint on
two grounds. First, he looked to the collective-
bargaining contract to ascertain what were Melillo's
seniority rights under the contract after he left the
unit. Since the contract was silent on the questions
of an employee's retention or loss of seniority after
he leaves the unit, the Trial Examiner concluded
that such silence indicates that an employee who
leaves the unit does not retain seniority. Reasoning
that rights such as seniority are creatures of
contract, and that where the contract is silent no
right may be inferred, the Trial Examiner stated "if
Melillo, in fact, left the contract unit, he abandoned
his seniority rights." Having concluded that Melillo
did leave the unit and thus abandoned his seniority
rights, the Trial Examiner decided that the Union
had an obligation to Melillo, "to treat [him] in the
same way the Union treated others similarly
situated." Since the parties had never faced a
problem like this before, the Trial Examiner decided
that the Union was free to act in the best interests of
its members, and that it fulfilled its obligation to
Melillo when it gave him a hearing.
After disposing of the case on this ground, the
Trial Examiner nevertheless proceeded to assume
arguendo that Melillo did have seniority rights, but
concluded that the Union did not unlawfully deprive
him of such rights. Since the objections to his
restoration with seniority fell into two classes- the
discriminatory objection that he was "antiunion"
and the nondiscriminatory objection that he had left
the bargaining unit- and since the Union's letter
did not specify the reason for its withdrawal of
seniority, the Trial Examiner concluded that, in any
event, the General Counsel had not proven a case of
unlawful motivation. The Trial Examiner found that
the presentation to the executive board of these two
motives did not indicate that the executive board's
"motivating reason" was discriminatory. In the
absence of further proof of discriminatory motive
and considering the "presumption of union fair
dealing," he determined that the General Counsel
had not made out a prima facie case, stating that "all
the evidence presents is a basis for suspicion. But
suspicion is not proof sufficient for grounding an
inference of unlawfulness."
We disagree. The issue in the case is not whether
Melillo is entitled to seniority, but rather whether the
Union revoked his seniority for a discriminatory
reason. While it is true that the contract is silent on
the subject of an employee's right to seniority after
299-352 0-70-64
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an absence from the unit , it is undisputed that the
Union here has stepped into the contractual vacuum
and has undertaken (at Lizza's request) the task of
making all determinations relating to seniority. Thus
the question of Melillo's right to restoration of
seniority, a question which was decided by the Trial
Examiner on the ground of contract interpretation, is
not really dispositive of the issue. For the Union has
undertaken to judge seniority, and, accordingly, we
must look to the Union to see if that power was
exercised lawfully.
The Trial Examiner gets to the key issue in the
case in his discussion of his alternative disposition of
the case. He rightly discusses the lawfulness or
unlawfulness of the Union's motivation as forming
the basis for decision. However, we disagree with his
conclusion that the evidence establishes only a
"suspicion" of discrimination which would not
legally support an inference of discrimination. In our
view the evidence compels the conclusion that
Melillo's seniority was discriminatorily revoked in
violation of Section 8(b)(2) and 8(b)(1)(A).
As Union President Geoghegan testified, after the
executive board originally voted on September 16,
1965, to restore Melillo's seniority, an angry clamor
arose from the drivers demanding revocation of the
action because Melillo had acted in an antiunion
fashion during the period he was out of the unit. The
drivers were told to put their objections in writing,
and Melillo was told to defend himself against these
objections if he wished to retain his seniority.
There can be no doubt from a reading of the
charges upon which Melillo was tried that they
related principally to his alleged antiunion activities,
such as threatening to import strikebreakers and
discriminating against union drivers. When one
driver attempted to bring up the fact that Melillo was
not entitled to a restoration of his seniority because
of his absence from the unit , the driver was ruled out
of order by the executive board, thus indicating that
this nondiscriminatory reason was not the issue on
which the hearing was being held.
In sum, we predicate our reversal of the Trial
Examiner's refusal to find discriminatory motivation
on three facts:
1. The charges filed against Melillo related
principally to his alleged antiunion acts.
2. Most of the testimony at the hearing in support
of the charges related to these same acts, and
testimony about his loss of seniority when he left the
unit was excluded.
3. The executive board revoked its decision to
restore Melillo to his old seniority only on the basis
of the testimony of his antiunion activities.
We conclude, accordingly, that the evidence
amply warrants us in making the inference that
Melillo's seniority was revoked, primarily, for
discriminatory reasons. We further find that such
revocation resulted in a material reduction in the
amount of work available to him and thereby was in
violation of Section 8(b)(1)(A) and 8(b)(2) of the Act.
THE REMEDY
Having found, contrary to the Trial Examiner, that
the Respondent has engaged in unfair labor
practices, we shall require it to cease and desist
therefrom and from any like or related conduct, and
take certain affirmative action designed to
effectuate the policies of the Act.
We have found that the Respondent
discriminatorily revoked the seniority of James L.
Melillo on March 29, 1966. Accordingly, we shall
order the Respondent to notify Lizza and Sons, Inc.,
and Melillo, that it withdraws its revocation of
Melillo's seniority, and request Lizza and Sons to
reinstate Melillo, and make Melillo whole for the loss
of pay suffered by him by reason of the
discrimination practiced against him by payment to
him of a sum of money equal to the amount he
normally would have earned as wages during the
period from the date of the discrimination, less his
net earnings during that period, computed on a
quarterly basis, as provided by the Board in F.W.
Woolworth Company, 90 NLRB 289, and interest at
the rate of 6 percent per annum shall be added. See
Isis Plumbing & Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Local 282, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Lizza and
Sons, Inc., to discriminate against James L. Melillo
or any other employee in violation of Section 8(a)(3)
of the Act.
(b) In any like or related manner restraining or
coercing employees in the exercise of their rights
guaranteed in Section 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 in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action, which
the Board finds will effectuate the purposes of the
Act:
(a) Withdraw the revocation of the seniority
position to which it had restored James L. Melillo on
January 25, 1966, and request Lizza and Sons, Inc.,
to reinstate Melillo, and so notify James L. Melillo
and his Employer, Lizza and Sons, Inc.
(b) Make whole James L. Melillo for any loss of
LOCAL 282 (LIZZA AND SONS, INC.)
pay suffered by reason of the discrimination against
him in the manner set forth in the section of this
Decision and Order entitled "The Remedy."
(c) Post at its offices copies of the attached notice
marked "Appendix." Copies of said notice, to be
furnished by the Regional Director for Region 29,
after being duly signed by Respondent's authorized
representative, shall be posted by it 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause Lizza
and Sons, Inc., to discriminate with regard to
seniority against any of its employees in
violation of Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner
restrain or coerce employees of Lizza and Sons,
Inc., in the exercise of their right to self-
organization, to form, join, or assist unions, to
bargain collectively through representatives of
their own choosing, to engage in concerted
activities for the purposes of collective
bargaining or other mutual aid or protection, or
to refrain from such activities, except to the
extent that such rights may be affected by an
agreement requiring union membership as a
condition of employment, as authorized by
Section 8(a)(3) of the Act.
WE WILL withdraw our revocation of James
L. Melillo's seniority and request Lizza and
Sons, Inc., to reinstate James L. Melillo.
WE WILL make James L. Melillo whole for
any loss of pay suffered by reason of the
discrimination against him.
LOCAL 282,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS,
CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
999
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 16 Court Street, Brooklyn, New York 11201,
Telephone 596-3535.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Trial Examiner: Upon a charge
filed on July 14, 1966, by James L. Melillo, the Regional
Director for Region 29 of the National Labor Relations
Board, herein called the Board, issued a complaint on
September 30, 1966, on behalf of the General Counsel of
the Board against Local 282, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union or the Respondent,
alleging violations of Section 8(b)(1)(A) and (2) of the
National Labor Relations Act, as amended (29 U.S.C. Sec.
151 et seq.), herein called the Act. In its duly filed answer
to the aforesaid complaint, the Respondent, while
admitting certain of the allegations thereof, denied the
commission of any unfair labor practices.
Pursuant to notice, a hearing was held before me in
Brooklyn, New York. All parties were represented and
afforded full opportunity to be heard, to introduce relevant
evidence, to present oral argument, and to file briefs.
Briefs were filed by counsel for the General Counsel and
by the Respondent. Upon consideration of the entire
record in this case, including the briefs filed, and upon my
observation of the demeanor of each of the witnesses
testifying before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE EMPLOYER
Lizza and Sons, Inc., herein called Lizza or the
Employer, is a New York corporation having its office and
principal place of business in the city of Oyster Bay, New
York, where it is engaged in performing general
contracting services in the building and construction
industry and related services. During the year immediately
preceding the issuance of the complaint herein, a
representative period, Lizza purchased and caused to be
transported and delivered to its Oyster Bay, New York,
place of business, building and other general contracting
equipment, supplies, and other goods and materials of a
value in excess of $50,000, of which goods and materials
valued in excess of $50,000 were transported and delivered
to its place of business in interstate commerce directly
from States of the United States other then the State of
New York.
It is admitted, and I find, that Lizza is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION IVOLVED
Dated By It is admitted, and I find, that the Respondent is a labor
(Representative ) (Title) organization within the meaning of Section 2 (5) of the Act.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges, in substance, that James Melillo,
an employee of Lizza, was deprived of and continues to be
deprived of the seniority to which he is entitled as such
employee by the Union and that the Union has caused
Lizza to fail and refuse to employ Melillo. The complaint
further alleges, and it was stipulated at the hearing, that
Lizza and the Union have maintained in effect an
agreement, understanding, and practice whereby the
Union administers and determines the seniority of the
chauffeurs employed by Lizza, said seniority
determinations being subject to objections of Lizza. The
complaint also alleges that the Union refused and deprived
Melillo of his seniority because the Union believed that
Melillo refused to support and assist the Union and that he
engaged in antiunion activities. By these acts, according to
the complaint, the Union restrained and coerced Lizza's
employees in violation of Section 8(b)(1)(A) and by causing
Lizza to discriminate against Melillo in violation of Section
8(a)(3) of the Act, the Union has engaged in violations of
Section 8(b)(2) of the Act.
The Respondent Union in its answer generally denies
any unlawful acts and contends that Melillo forfeited his
seniority as a driver upon his voluntarily quitting his job as
a driver several years before the events herein and that,
therefore, the Union was under no obligation to restore
such seniority to him. The Union further contended that
even if its action had resulted in Melillo's loss of seniority
this would not have constituted a violation of the Act
because the reasons for denying Melillo his seniority were
neither discriminatory nor otherwise unlawful. In support
of its contentions, the Union argues that when Melillo quit
his job as a driver several years prior to the events herein,
he withdrew from the unit covered by the agreement
between the Union and Lizza and thereby lost his seniority
position and, furthermore, during this interim employment
with Lizza, Melillo was a supervisor. Moreover, the
agreement pursuant to which seniority was administered
by the Union is completely silent as to retention of
seniority upon leaving the unit and such silence
determines that seniority is not retained after leaving the
unit.
Thus the principal issues framed by the various
pleadings and contentions are:
1. Did Melillo retain his seniority when he gave up
driving and accepted other employment with Lizza?
2. If Melillo retained seniority, when the Union
deprived him of this seniority did it do so discriminatorily?
B. The Facts
Melillo began working for Lizza in 1950 as a dispatcher
in the asphalt plant. After approximately 1 year he became
a driver and joined the Union. He has retained his union
membership since then. Melillo worked as a driver from
approximately February 1951 until August 1960 when he
was forced, upon his doctor's advice, to give up driving
because of an old injury to his left leg. Lizza then
transferred Melillo to the position of runner which,
according to Melillo, made him responsible for the
sufficjency of material and trucks assigned to any job that
' Melillo places this date as January 1966, but it is evident that
as events unfolded the decision to go back as a driver occurred
sometime in the spring or summer of 1965
Lizza might have. Melillo admitted that during the time he
was a runner he was a "representative of management."
However, he also denied that he ever dealt with the
employment status of any of the drivers. On the other
hand, he did admit that he secured the reinstatement of an
employee named Oliver.
By about the early summer of 1965, Melillo's leg injury
had healed to the point where his doctor informed him that
he could go back to driving a truck if he so desired.
Evidently disenchanted with his job as runner, Melillo,
sometime in the summer of 1965,1 asked Al Lizza,
president of Lizza, to go back to work as a driver. Lizza
informed Melillo that he "had nothing to do with the
drivers. That is a Union problem, I [sic] must take it up
with the Union."
Thereafter Melillo called at the office of the Union and
asked how he was to be reinstated as a chauffeur. He
spoke to James Geoghegan, acting president, and John
Cody, vice president, of the Union. The latter told Melillo
to apply in writing to the executive board to request
reinstatement as a driver. In accordance with these
instructions, Melillo submitted a letter to the executive
board requesting reinstatement to driver status with full
seniority.2
On September 16, 1965, as a result of Melillo's written
request, an executive board meeting was held. Present
were Geoghegan, Cody, Benedict Ciavolella, secretary-
treasurer of the Union, and three of the employees of Lizza
who were members of the Union. The other Lizza
employees opposed Melillo's reinstatement as a driver
with full seniority because Melillo had been out of the unit
for 5 years and had, according to them, engaged in
antiunion acts and also because he had hired and fired
employees which made him a supervisor. After this
executive board hearing, Melillo was notified by letter
dated January 25, 1966, that the executive board, by
unanimous vote, had decided to restore him to his proper
seniority status on the seniority list of the Lizza
employees, such reinstatement to take effect on or before
February 15, 1966.
Thereafter, on a date not ascertainable, Melillo did
return to work as a driver for Lizza having the number 13
position on the seniority roster. This meant that as the
drivers daily shaped up at the company barn Melillo was in
very good position to work each day as a driver. However,
about February 15, Union Vice President Cody called
Melillo and told him that he no longer had seniority at
Lizza. When he asked Cody the reason, Cody told Melillo
that a letter would follow, that there were many objections
to Melillo getting back his seniority and that, furthermore,
Melillo would have to go before the executive board again.
Approximately a week thereafter, by letter dated
February 21, 1966, Melillo was informed by the Union that
a hearing on charges against him would be held on
Thursday, March 3, 1966, at the union hall. Attached to
the letter were charges filed with the executive board by
various Lizza driver-members.
These charges, similar to the allegations made at the
original executive board meeting, detail the manner in
which it was alleged that Melillo discriminated against
union members in his capacity as a runner ; how Melillo
during a strike in 1959 and another one in 1961 called
drivers at their homes and threatened them to take out the
2 This letter is dated July 7, 1965, which would indicate that
Melillo's decision to return as a driver occurred sometime in the
early summer or late spring of 1965.
LOCAL 282 (LIZZA AND SONS, INC.)
trucks or be fired and be replaced by strikebreakers. The
charges also alleged that Melillo was a "management
representative" and that he was authorized to hire and fire
during the period in which he served Lizza as a runner.
These charges were signed by some 26 to 28 of Lizza's
employees, most of whom were below Melillo on the
seniority list after Melillo's restoration to such list.
In connection with the filing of these charges and the
second hearing, Geoghegan credibly testified that the
charges were filed, and the second executive board
meeting was brought about, because of many protests
which were lodged forcefully with him at a regular union
meeting held after it was decided in the first instance to
restore Melillo's seniority. According to Geoghegan, he
was overwhelmed by the number of Lizza's employees
who protested the executive board's fixing of Lizza's
seniority. Geoghegan explained that the executive board
and Geoghegan, himself, had no alternative but to act upon
the protest of the rank-and-file members of the Union who
were truckdriver-employees of Lizza.
On March 3, 1966, the executive board meeting was
held in the union hall. Present besides the executive
board, which was chaired by Geoghegan, and Melillo, who
was there to defend his position, were the employees who
had signed the charges and others. The testimony given by
the employees followed to a great extent the allegations set
forth in the charges. In each instance Melillo was given an
opportunity to defend his position and to counter the
allegations made by the complaining members. It is
unnecessary here to go into the details of these allegations
but generally the testimony was to the effect that either
(a) Melillo acted in antiunion fashion or (b) he had lost his
seniority by reason of fact that he acted as a "management
representative" who had the right to hire and fire.
By letter dated March 29, 1966, signed by the recording
secretary of the Union, Melillo was informed that the
executive board, after hearing all the parties and
considering the entire record in the matter , determined
that the position of the Union was that Melillo did not have
seniority as a driver for Lizza. Since that date, Melillo has
not worked as a driver for Lizza but has, since then, as
noted above, become a foreman of construction.
The notice, above mentioned, was completely silent as
to the reasons why the executive board changed its mind
in Melillo's case. However, in testifying, Geoghegan
emphasized the fact that Melillo had acted as a
management agent and had occupied a position outside
the unit. He stated that at the second hearing before the
executive board the evidence was overwhelming. The
record does not show any other detail as to the basis or the
reason for the Union's executive board decision.
During all of the foregoing events, there existed a
contractual relationship between Lizza and the Union
which was detailed in two separate bargaining agree-
ments, one known as the "Excavating Contract" and the
other known as the "Ready-Mix Concrete, Sand, Gravel
and Asphalt Contract." So far as seniority provisions in the
said agreements are concerned, the excavating contract
merely states that "seniority shall prevail." It also states,
in another section, that leaves of absence may be granted
not to exceed 6 months for health or layoffs. The Ready-
Mix Concrete contract states that barn seniority with a
master list shall apply. It also states that this seniority
3 Local 50, American Bakery & Confectionery Workers Union,
AFL-CIO (Ward Baking Company), 143 NLRB 233
4 A runner is a type of dispatcher
1001
shall govern daily work assignments. This contract does
not specify the exact leave of absence or sick leave which
may be granted under a contract but merely states that
leaves of absence without pay may be granted by the
Employer during the period from December 15 to
March 15 of any year.
Thus it is apparent that from neither of the contracts
can it be said that seniority is either retained or lost upon
transfer out of the unit to another position with the
Employer. Manifestly, the agreements are silent on this
point.
C. Discussion and Concluding Findings
Both the General Counsel and the Union view as highly
significant the fact that the agreements affecting the
relationship between the Union and Lizza are silent
regarding the retention or loss of seniority upon an
employee's ceasing to be a driver. In the General
Counsel's view, this silence endows the employee who
leaves the unit with seniority retention. The Union
contends that the failure of the agreements to mention the
subject leaves the employee who gives up driving with no
seniority rights. I find merit in the Union's contention.
Neither the General Counsel nor the Union cite direct
precedent for their opposing contentions. Indeed, research
has failed to uncover such precedent. The cases each cite
treat of the subject in a peripheral manner . But, it would
seem that as a matter of good practice in labor
management relationships, rights which are not bestowed
by the Act or other statute must be created by contract
and where the contract is silent, no rights are created. This
would seem to be the practice generally, since cases
dealing with retention of seniority upon leaving the unit
uniformly discuss the retention rights as created by the
agreement between management and union. Thus, even in
the Ward Baking Company case cited by the General
Counsel,3 the agreement between the employer and the
union set forth ways in which seniority could be lost, thus,
by inference, agreeing that in all other instances seniority
was to be retained. But, this was an inference created by
contract.
No such inference can be raised from the contracts
involved in the instant case. Their silence raises none.
Therefore, if Melillo, in fact, left the contract unit, he
abandoned his seniority rights.
The contract unit under both agreements involved here
includes drivers. The asphalt contract unit includes only
drivers or chauffeurs; the excavating contract covers
chauffeurs, euclid, and turnapull operators. When, in
1960, Melillo gave up his position as driver or chauffeur to
become a runner , he left the units covered by both
agreements since neither unit included the classification
of runner or dispatcher.4 This is so even accepting
Melillo's testimony that he was forced to give up driving
for health reasons.5 Therefore, it is not necessary to
determine whether Melillo did become a member of
management or a supervisor. When he gave up his unit
position he surrendered his seniority rights and I so find.
What then, were the Union's obligations to Melillo when
he made application for reinstatement as a chauffeur with
full seniority rights? Obviously, as discussed above, there
was no obligation under the agreements to restore
5 Melillo's accusers before the executive board stated that
Melillo gave up driving to become a runner because the latter
position was steady whereas drivers did not work in bad weather.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Melillo's seniority. Thus, the only obligation on the part of
the Union was to treat Melillo in the same way the Union
treated others similarly situated. But, the record is devoid
of any evidence that a like situation had ever arisen before.
Therefore, so far as the Union was concerned there was no
precedent and it was free to act in the best interest of all of
its members who were employees of Lizza. To place
Melillo back in his former position on the seniority list to
the detriment of many of the Lizza driver-members was
not in the best interest of the membership as a whole.
Accordingly, when an overwhelming number of Lizza
drivers voiced their objections , and a hearing was given
Melillo, the Union fulfilled its obligation to him.
Accordingly, I find and conclude that the General
Counsel has failed to prove that the Union has deprived
Melillo of the seniority rights to which he was entitled
because he was entitled to none. Therefore, I find merit in
the Union's motion to dismiss on the basis that the General
Counsel has failed to make out a prima facie case.
But, even assuming that Melillo did have seniority
rights, as claimed by the General Counsel, I would still
come to a like conclusion. As recounted heretofore, the
basic objections to Melillo's application for restoration of
seniority rights fell into two classes. The first was that
Melillo, as a runner, had acted in an antiunion fashion, had
discriminated against members of the Union, and had
participated in strikebreaking. The second class of
objections were concerned with the fact that Melillo had
left the bargaining unit and had become a supervisor,
thereby abandoning his seniority rights. Also as noted
above, the letter informing Melillo that he had no seniority
as a Lizza driver failed to recite any reason why the
executive board had made this decision. Other than the
foregoing, the record is devoid of any evidence which
would sustain the General Counsel's contention that the
basis for the refusal to grant to Melillo his claimed
seniority rights was at least, in part, because Melillo had
engaged in antiunion activity and that the decision was,
therefore, discriminatory.
The General Counsel contends, however, that from this
evidence as set forth it should be inferred that at least part
of the Union's reasons for its activity was motivated by
Melillo's alleged antiunion actions. This, claims the
General Counsel, is sufficient to establish his case. I do
not agree. In order to reach the conclusion desired by the
General Counsel it would be necessary to infer solely from
the charges filed by the union members against Melillo
that the Union acted in a discriminatory fashion, and that
the motivating reason for depriving Melillo of seniority
rights was that the union members present at the hearing
had complained that Mehllo was "anti - union ." However, I
do not find that it follows that merely because some of the
objections to Melillo were based on the members' belief
Melillo was antiunion , the executive board 's decision was
motivated even in part by such consideration. In the
absence of any further evidence of the reasons for the
executive board's actions, I conclude that all the evidence
presents is a basis for suspicion. But suspicion is not proof
sufficient for grounding an inference of unlawfulness.
In coming to this conclusion I note the court of appeals
language in the case of Stewart v. Day & Zimmerman,
Inc.,6 in which the court states:
... that union officials should be given a wide latitude
in deciding intra-union disputes and that courts
should be slow to intervene in them, but should, on
the other hand, invest their decisions with a
presumption of honesty and fairness.
The action of the Union herein, and of its executive
board, was taken with regard to an intraunion dispute. We
should therefore be slow to intervene and should invest
their decision with a presumption of honesty and fairness.
This being so, it would require more evidence than the
record now offers to overcome this presumption of honesty
and fairness. This the General Counsel has failed to do.
For this reason, alone, I would grant the Respondent's
motion to dismiss.
CONCLUSIONS OF LAW
1. Lizza and Sons, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Local 282, 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. The Respondent Union has not deprived James L.
Melillo of the seniority to which he was entitled as an
employee of Lizza and has not caused Lizza to
discriminatorily fail and refuse to employ Melillo.
4. The Respondent Union has not violated Section
8(b)(1)(A) and (2) of the Act.
RECOMMENDED ORDER
It is hereby recommended that the complaint in this
proceeding should be, and it hereby is, dismissed.
6 294 F 2d 7 , 11 (C A 5)