Longshoremen Local

National Labor Relations Board - Board Decisions

Nov 19, 2001

336 N.L.R.B. 104 (N.L.R.B. 2001)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Warehouse Union Local 6, International Longshore
& Warehouse Union, AFL–CIO and Brian Belmonte.
Case 20–CB–11486–1
November 19, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
Upon a charge filed by Brian Belmonte on April 10,
2001, the General Counsel of the National Labor Rela-
tions Board issued a complaint on July 31, 2001 against
Warehouse Union Local 6, International Longshore &
Warehouse Union, AFL–CIO, the Respondent, alleging
that it has violated Section 8(b)(1)(A) of the National
Labor Relations Act. Although properly served copies of
the charge and complaint, the Respondent failed to file
an answer.
On September 28, 2001, the General Counsel filed a
Motion for Summary Judgment with the Board. On Oc-
tober 2, 2001, the Board issued an order transferring the
proceeding to the Board and a Notice to Show Cause
why the motion should not be granted. The Respondent
filed no response. The allegations in the motion are
therefore undisputed.
Ruling on Motion for Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations provide that the allegations in the complaint
shall be deemed admitted if an answer is not filed within
14 days from service of the complaint, unless good cause
is shown. In addition, the complaint affirmatively notes
that unless an answer is filed within 14 days of service,
all the allegations in the complaint will be considered
admitted. Further, the undisputed allegations in the Mo-
tion for Summary Judgment disclose that the Region, by
letter dated August 28, 2001, notified the Respondent
that unless an answer was received by September 4,
2001, a Motion for Summary Judgment would be filed.
In the absence of good cause being shown for the fail-
ure to file a timely answer, we grant the General Coun-
sel’s Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Professional Messenger, Inc.
d/b/a Professional Messenger Courier, Express Services
Overnight and Taylor-Price Attorney Service, a Califor-
nia corporation with facilities in Santa Clara and San
Francisco, California (the Employer), has been engaged
in the business of providing messenger and courier ser-
vices. During the calendar year ending December 31,
2000, the Employer, in conducting its business opera-
tions described above, sold and shipped goods and/or
services valued in excess of $50,000 directly to custom-
ers located outside the State of California.
We find that the Employer is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Respondent is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
At all material times by virtue of Section 9(a) of the
Act, the Respondent has been the exclusive bargaining
representative of the following employees of the Em-
ployer (the unit):
All messenger and courier employees; excluding dis-
patchers, customer service representatives and on-site
service personnel, office clerical employees, guards and
supervisors as defined in the Act.
At all material times, the Respondent and the Em-
ployer have maintained and enforced a collective-
bargaining agreement, effective on its face for the period
September 7, 2000 to September 6, 2001, covering con-
ditions of employment of the unit.
Since an unknown date in November 2000, the Re-
spondent has refused to process a grievance related to
Belmonte’s rate of pay.
By engaging in the conduct set forth above, in connec-
tion with its representative status as described above, the
Respondent has failed to represent Belmonte for reasons
that are unfair, arbitrary, and invidious, and has breached
the duty of fair representation it owes to the employees it
represents.
CONCLUSION OF LAW
By the acts and conduct described above, the Respon-
dent has been restraining and coercing employees in the
exercise of rights guaranteed in Section 7 of the Act, and
has thereby engaged in unfair labor practices affecting
commerce within the meaning of Section 8(b)(1)(A) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
found that the Respondent has violated Section
8(b)(1)(A) of the Act by refusing since November 2000
to process a grievance related to Brian Belmonte’s rate of
pay, we shall provide for the remedy prescribed in Iron
336 NLRB No. 104
2

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Workers Local 377 (Alamillo Steel Corp.), 326 NLRB
375 (1998). Accordingly, we shall order the Respondent
to promptly request the Employer to consider Belmonte’s
grievance and, if it agrees to do so, process the grievance
pursuant to the September 7, 2000 to September 6, 2001
collective-bargaining agreement between the Respondent
and the Employer.
In addition, we shall order the Respondent to permit
Belmonte to be represented by an attorney of his own
choosing at any grievance proceeding, including arbitra-
tion or other resolution proceedings that may follow from
the Respondent’s efforts on Belmonte’s behalf, and pay
the reasonable legal fees of that attorney. In the event
that it is not possible to pursue the grievance, and if the
General Counsel shows in compliance proceedings that a
timely pursued grievance would have been successful,
the Respondent shall make Belmonte whole for any in-
creases in damages suffered as a consequence of its re-
fusal to process his grievance, with interest.1
ORDER
The National Labor Relations Board orders that the
Respondent, Warehouse Union Local 6, International
Longshore & Warehouse Union, AFL–CIO, Oakland,
California, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to process the grievance relating to Brian
Belmonte’s rate of pay, or a grievance filed by any other
employee, for unfair, arbitrary, or invidious reasons.
(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) Promptly request Professional Messenger, Inc.
d/b/a Professional Messenger Courier, Express Services
Overnight and Taylor-Price Attorney Service to consider
the grievance of employee Brian Belmonte related to his
rate of pay and, if the Employer agrees to do so, process
the grievance with due diligence.
(b) Permit Brian Belmonte to be represented by his
own counsel at any grievance proceedings, including
arbitration or other resolution proceedings, and pay the
reasonable legal fees of such counsel.
(c) In the event that it is not possible for the Respon-
dent to pursue the grievance, and if the General Counsel
1 For the reasons set forth in his partial dissent in Iron Workers Local
377 (Alamillo Steel Corp.), 326 NLRB 375, 383–384 (1998), Chairman
Hurtgen would not limit the relief due Charging Party Belmonte, but
rather would impose full make-whole remedial liability on the Respon-
dent in the event that Belmonte’s grievance cannot be processed and
the General Counsel proves in compliance that a timely pursued griev-
ance on his behalf would have been successful.
of the National Labor Relations Board shows in compli-
ance proceedings that a timely pursued grievance would
have been successful, make whole Brian Belmonte for
any increase in damages suffered as a result of the Re-
spondent’s refusal to process the grievance, with interest.
(d) Within 14 days after service by the Region, post at
its offices and meeting halls in Oakland, California, cop-
ies of the attached notice marked “Appendix.”2 Copies
of the notice, on forms provided by the Regional Director
for Region 20, after being signed by the Respondent’s
authorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous 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 material.
(e) Within 14 days after service by the Region, deliver
to the Regional Director for Region 20, signed copies of
the notice in sufficient numbers for posting by the Em-
ployer at its Santa Clara and San Francisco, California
facilities, if it is willing, in all places where notices to
employees are customarily posted.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C November 19, 2001
__________________________________
Peter J. Hurtgen, Chairman
__________________________________
Wilma B. Liebman, Member
__________________________________
Dennis P. Walsh, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO MEMBERS

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

2 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
3

LONGSHOREMEN ILWU LOCAL 6
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
WE WILL NOT refuse to process the grievance relating
to Brian Belmonte’s rate of pay, or a grievance filed by
any other employee, for unfair, arbitrary, or invidious
reasons.
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.
WE WILL promptly request Professional Messenger,
Inc. d/b/a Professional Messenger Courier, Express Ser-
vices Overnight and Taylor-Price Attorney Service to
consider the grievance of employee Brian Belmonte re-
lated to his rate of pay and, if the Employer agrees to do
so,WE WILL process the grievance with due diligence.
WE WILL permit Brian Belmonte to be represented by
his own counsel at any grievance proceedings, including
arbitration or other resolution proceedings, and WE WILL
pay the reasonable legal fees of such counsel.
WE WILL, in the event that it is not possible to pursue
the grievance, and if the General Counsel of the National
Labor Relations Board shows in compliance proceedings
that a timely pursued grievance would have been suc-
cessful, make whole Brian Belmonte for any increase in
damages suffered as result of our refusal to process that
grievance, with interest.
WAREHOUSE UNION LOCAL 6, INTERNATIONAL
LONGSHORE & WAREHOUSE UNION, AFL–CIO