Teamsters Local 670 (Stayton Canning)

National Labor Relations Board - Board Decisions

Jun 28, 1985

275 N.L.R.B. 911 (N.L.R.B. 1985)

-TEAMSTERS LOCAL-670 (STAYTON CANNING)
Teamsters Cannery Local No. 670 - affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America
and Stayton Canning Company Cooperative' and
Agripac , Inc. Cases 36-CB-1042 and `36-CB-
1043 -
28 June 1985
DECISION AND ORDER
,By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 23 February 1984 Administrative Law Judge
Jerrold H. Shapiro issued the attached decision.
Thereafter, Respondent (the Union) filed excep-
tions and a supporting brief and a motion, to reopen
the record to receive additional - documentary evi-
dence. The Charging Parties (the Employers) filed
an exception, and the General Counsel' and the
Employers filed answering briefs and briefs in op-
position to the Union's motion to reopen the
record.
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, I and
conclusions, 2 and to adopt the recommended
Order as modified.3
' The Union in its motion, requests that the record be reopened for the
receipt of additional documentary evidence pertaining to the issue of
whether these cases should be deferred to arbitration The Union admits
this evidence was known to it at the time of the heanng, but contends
that it has become material only since the judge's decision issued The
Union's motion is denied since the question of whether these cases should
be deferred to arbitration was, as found by the judge, untimely raised
Thus, as noted by the judge, the Union"first raised this issue in its post-
hearing brief and the issue was not litigated at the hearing Even if the
Union had timely raised this issue, the judge noted, it is doubtful whether
deferral is appropriate here In these circumstances, the evidence prof-
fered by the Union is immaterial. to the issues under consideration here,
and the motion is denied
2 The judge found, and we agree, that the Union violated Secs
8(b)(1)(A) and (3) and 8(d) by denying its financial core members access
to its pharmacy and dental and eye clinics, and by refusing to issue them
work registration certificates, in contravention of its settlement agree-
ments with the Employers For the reasons relied on by the judge, we
agree that the Union's conduct was unlawful even in the absence of evi-
dence that the Union was using the dues of the financial core members to
finance its operation of the clinics and pharmacy
The Union's action contravened the provision of the settlement agree-
ments that prohibited discrimination in any way for lawful activity in
connection with the strike This provision concerns a mandatory subject
of bargaining and, unlike our colleague, we do not think it significant that
the method of discrimination that the Union chose was to withhold bene-
fits that were outside the collective-bargaining agreements Additionally,
we observe that the judge at fn 8 specifically found it unnecessary to
pass upon the allegation that Respondent's conduct would have violated
Sec 8(b)(1)(A) of the Act even if it had not been in derogation of the
parties' strike settlement agreements
3 The Employers argue in their exceptions that one provision of the
judge's recommended Order should be modified to more appropriately
reflect the violations found. We agree We shall modify the recommend-
ed Order accordingly
911
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 Cannery Local No. 670, affili-
ated ' with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Amer-
ica, Salem , Oregon , its officers , agents , and repre-
sentatives , shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 1(b).
"(b) Refusing to bargain with Stayton Canning
Company, Cooperative and Agripac , Inc., by en-
gaging in the above -described' conduct in contra-
vention of its strike settlement agreements with the
Employers." .
2. 'Substitute the attached notice for that of the
administrative law' judge.
MEMBER HUNTER , concurring and dissenting.
I agree with the 'judge 's finding and with my col-
leagues that Respondent Union violated Section
8(b)(1)(A) by denying access to its pharmacy and
dental and eye clinics to financial core members
employed by the Employers and by refusing to
issue them work registration certificates . I do so,
however, on the basis that the Union 's actions
clearly were undertaken to retaliate against those
who exercised their protected right to cross the
picket line and return to-'work after having re-
signed from full membership in the Union. As
found by the judge ," the Union 's 'conduct was a
form of economic reprisal and, as such , was coer-
cive within - the meaning of Section 8(b)(1)(A).
Even though the Union's actions were pursuant to
an internal union rule and the benefits withdrawn
were wholly internal union benefits, the Union's
conduct here is not protected by the proviso to
Section 8(b)(1)(A) because the conduct , undertaken
for a prohibited retaliatory intent , reached beyond
internal matters and tended to frustrate the Act's
overriding policy of protecting employee exercise
of Section 7 rights . Cf. Scofield v. NLRB, 394 U.S.
423 (1969). Thus, for these reasons , I agree that the
Union violated Section 8 (b)(1)(A).
I disagree, however, with the judge 's reliance on
Stationary Engineers Local 39 (San Jose Hospital),
240 NLRB 1122 (1979), and his finding that the
Union violated Sections 8(b)(1)(A) and (3) and 8(d)
on the basis the Union 's conduct was in contraven-
tion of a strike settlement agreement wherein the
Union had agreed to refrain from discriminating
against employees because of their strike activities.
The benefits denied were union -provided and were
completely outside the collective -bargaining con-
tract . These benefits did not in any fashion concern
275 NLRB No. 127
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a term or condition of employment and thus are
not mandatory subjects of bargaining. The benefits
are solely a service provided to members. Thus, I
would find that the Union did not breach its bar-
gaining obligations under the Act and I would dis-
miss the allegation that the Union violated Sections
8(b)(3) and 8(d). Accordingly, I also disagree with
my colleagues' finding that' the Union breached the
strike settlement agreement.
i
APPENDIX
NOTICE To MEMBERS AND EMPLOYEES
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 ordered us to post and abide by this notice.
WE WILL NOT.. refuse to issue work registration
certificates to our financial-core members em-
ployed by Stayton Canning Company Cooperative
and Agripac, Inc. and refuse to allow them to use
the pharmacy and eye and dental clinics located in
our building,.in violation of the terms of our strike
settlement. agreements with the Employers.
WE WILL NOT refuse to bargain with Stayton
Canning Cooperative and Agripac, Inc. by engag-
ing in the above-described conduct in contraven-
tion of our - strike settlement agreements with the
Employers.
WE WILL NOT in any like. or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make whole our above-described fi-
nancial core members for any financial losses they
may have suffered as a result of our unlawful refus-
al to issue them work registration, certificates and
to use the pharmacy and eye and dental clinics lo-
cated in our building, with interest.
TEAMSTERS CANNERY LOCAL No.
670 AFFILIATED WITH INTERNATION-
AL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA -
DECISION , -
.STATEMENT OF THE CASE :-
JERROLD H. SHAPIRO, Admiiiistfative Law Judge.
This proceeding, in which a heariig was' held November
8, 1983, is based on an amended coiisolidated,complaint
issued by the General. Counsel of the National' Labor Re-
lations Board on October 17, 1983, and on unfair labor
practice charges filed on March 15, .1983, against Team-
sters Cannery Local' No. 670 (Respondent) by Stayton
Canning Company Cooperative (Stayton) and by Agri-
pac, Inc. (Agripac) and collectively called the Employ-
ers. The amended consolidated complaint alleges that
Respondent violated Section 8(b)(1)(A) of the Act by re-
fusing to allow the Employers ' employees represented by
Respondent to use Respondent 's pharmacy and eye and
dental clinics and by refusing to issue to these employees
work registration certificates because the employees
during a strike which took place during the summer of
1982 resigned from membership in Respondent. The
complaint also alleges that Respondent violated Sections
8(b)(3) and 8 (d) of the Act by engaging in the aforesaid
conduct in derogation of the terms of its strike settlement
agreements with the Employers . Respondent filed an
answer denying the commission of the alleged unfair
labor practices.'
On the entire record , from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs, I make the following
FINDINGS OF FACT
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. The background
Stayton and Agripac are grower-owned food proces-
sors located in the State of Oregon. Virtually all their
employees are represented by the Respondent. The em-
ployees' terms and conditions of employment have been
governed by a series of collective-bargaining agreements
between Respondent and the respective Employers. Al-
though Respondent negotiates separate contracts with
Staytori and Agripack, the terms of these contracts, in
significant respects, are identical. The contracts have in-
cluded, among other things, a provision whereby the
Employers contribute to a trust fund which provides
health and welfare benefits to the employees, including
prescription drugs and dental and vision benefits. In this
regard the contracts which were in effect during the
time material to this case provide, among other things,
for the Employers to contribute to the Oregon Proces-
sors Employees Trust to provide qualified employees
with insurance benefits "provided in .. . Dental Plan
RD 2, Vision Plan RV 2, Prescription. Drug Plan RRx."
The dental, vision, and prescription drug plans permit
qualified,' employees to do business with any dental or
eye clinic or pharmacy and reimburse the employees for
the cost of their prescription drugs and dental and eye
care The pharmacy plan provides for the reimbursement
of 90 percent of the cost of the employees' drugs and
under the dental and eye care plans the employees after
making certain minimal payment'are reimbursed for the
remainder of their costs.
I -Respondent 's answer admits that it is a labor organization within the
meaning of Sec 2(5) of the Act Also, Respondent in its answer admits
that the Employers involved in this case, Stayton and Agnpac, are em-
ployers engaged in commerce within the meaning of Sec 2(6) and (7) of
the Act and meet the National Labor Relations Board's applicable discre-
tionary jurisdictional standard I therefore find that the assertion of the
Board's jurisdiction in these cases will effectuate the policies of the Act.
TEAMSTERS LOCAL 670 (STAYTON CANNING)
The building in which Respondent's offices are situat-
ed has three other tenants: a pharmacy; a dental clinic;
and an eye clinic. The clinics and pharmacy are open for
business to the general public. The sign posted on the
front of the building has a large emblem of the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America which emblem covers
an entire side of the sign. The sign describes the clinic
and pharmacy, as follows:
TEAMSTERS LOCAL 670
DENTAL CLINIC -
EYE CLINIC
PHARMACY -
Likewise the clinics and pharmacy advertise to the
public in the telephone yellow pages as "Teamsters
Local 670 Labor Center Pharmacy"; "Teamsters Local -
670 Dental Clinic"; "Teamsters Local 670 Eye Clinic."
Even though the clinics and pharmacy are presented to
the public. as being a part of Respondent, they are sepa-
rate legal entities, who, like Respondent, rent space in
the building. The record also establishes that the persons
who make up the Respondent's governing body, its exec-
utive board, also are the clinics' and pharmacy's board of
directors, the governing body of those organizations.
Respondent since at least 1959 has on request provided
all laid-off employees whom it represents with work reg-
istration certificates, signed by an official of-Respondent,
which in essence certifies that the employee is registered
for work with Respondent and will be notified of job
openings communicated to Respondent. Pursuant to an
agreement between Respondent and the Employment Di-
vision of the State of Oregon, if employees who are
seeking unemployment compensation present such a cer-
tificate to the Employment Division they will be excused
from making the substantial job search otherwise re-
quired of unemployment compensation claimants by the
State of Oregon; they are excused by, the State of
Oregon from,submitting evidence that they have con-
ducted an independent search for work that week.
2. The strike and the strike settlement agreements
During the summer of 1982 Respondent was engaged
in individual negotiations with Stayton and Agripac for
new collective-bargaining contracts to replace the ones
which recently terminated. On July 25, 1982, Respond-
ent asked the Employers' employees to cease work and
strike because the contract negotiations had failed to
result in new agreements. The strike against Stayton
lasted 4 days and the strike against Agnpac lasted almost
2 weeks. Some of the employees failed to support the
strike; they either continued to work or returned to
work prior to the end of the strike. In addition, the Em-
ployers employed striker replacements. Somewhere be-
tween 600 and 700 of the aforesaid employees who
worked for the Employers during the strike submitted to
Respondent during the period of the strike signed state-
ments which in effect notified Respondent that'the sign-
ers only intended to pay Respondent the money required
under the contractual union-security' provision of the
governing contracts, but- would not be bound by Re-
913
spondent's membership obligations. This group of em-
ployees are referred to herein as financial core members.
Respondent 's strikes against the Employers ended
when the parties reached agreement on the terms of new
collective-bargaining contracts and strike settlement
agreements. The collective-bargaining contract and strike
settlement agreement reached by-Respondent with Agn-
pac were part of one package as was the case with the
contract and strike settlement agreement reached by Re-
spondent with Stayton. Although the language contained
in the Respondent-Agripac settlement agreement differed
in- certain respects from the language in the Respondent-
Stayton strike settlement agreement, in those respects
material to this case the agreements were identical. The
agreements read, in pertinent part, as follows:'
The parties have agreed that it is in the best in-
terests of the company,, the union, and all employ-'
ees that any bad feelings or disharmony in the plant
generated by the strike be eliminated as soon as pos-
sible in the interests of efficient operations; and that
no employee should suffer discrimination, harass-
ment or intimidation by virtue of choices made to'
support or not, to support the strike; and that every
employee is entitled to a working environment free
from acrimony and hard feelings.
The union and the company hereby agree that no
employee shall be discriminated against in any way
by virtue of lawful activity engaged in during or in
connection with the strike . . . .
Neither party shall discriminate against or seek any
penalty from any employee, including supervisory
employees, because of their choices or actions with
respect to financial core status or resignation.
3. The refusal to provide services for the financial -
core members
In December 1982, on a date not set 'forth in the
record, Respondent's executive board voted to refuse to
provide services to Respondent's financial core members
and on the same day Respondent's executive board, now
sitting 'as the board of directors of the clinics and 'phar-
macy located in Respondent's building, voted that the
clinics and pharmacy would also refuse to provide serv-
ices to the financial core members. Thereafter in Decem-
ber 1982-Respondent's, principal official, Secretary-Treas-
urer L. D. Day,.who is a ,member of Respondent's exec-
utive board, instructed Respondent's _office manager,
Grace Hayward, that the board of -directors ,had decided
that -the clinics and pharmacy located in the building
would no longer service Respondent's financial core
members and that Respondent would no longer issue
work registration, certificates to the financial core mem-
bers. Day also,, instructed Hayward to 'give the names of
Respondent's financial core members to the pharmacy
and the clinics., Day compiled such a- list whicli she
transmitted to the pharmacy and clinics.
It is undisputed that starting in December 1982 and
continuing thereafter it-,has been the usual practice for
the eye and dental- clinics and the pharmacy located in
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's building to refuse to do business with Re-
spondent's financial core members and for Respondent to •
refuse the requests of financial core members for work
registration certificates.
Due to the refusal of the clinics and pharmacy to do ,
business with the financial core members and due to the,,
refusal of Respondent to issue them work registration
certificates, they have suffered the following financial
consequences. The 'unemployed financial core members
refused work registration certificates are forced to con-
duct an independent search for work during each of the.
weeks they claimed unemployment compensation. The fi-
nancial core members would have been able to avoid in-
curring the expense associated with this weekly search
for work if they had ,been able to present work registra-
tion certificates from Respondent to the State of Oregon.
The financial core members denied access to the pharma-
cy in_ Respondent's building lost the 10-percent discount
they would have received if they had made their drug
purchases at the pharmacy. They also lost the use of the
money which they had to spend to purchase their drugs
from other pharmacies, inasmuch as' other pharmacies •
usually demand immediate payment, whereas the phar-
macy in Respondent's building in dealing with the Em-
ployers' employees -represented by the Respondent ac-
cepts-the employees' prescription cards which the ^ phar
macy submits to . the insurance carrier for reimburse-
ment .2 Likewise the -employees- employed by the. Em-
ployers who are eligible under the contracts for- health
and welfare benefits are not charged by, the clinics in Re-
spondent's building for ,the insured portion of their,serv- -
ices,3 thus, the financial core members who were forced
to use other eye and dental clinics which demanded- pay-
ment upon service were denied the .use of these moneys
from the date of payment to the date, on which ;the.ein
ployees were reimbursed by the administrator of the con-
tractual health and welfare trust fund. -
B. Discussion andConclusionary Findings
1. The dental -clinic ,' the eye 'Clinic ,' and-the -
pharmacy, acted as agents of the Respondent when ',"
they refused to do business with Respondent's
financial core members - -
.Insofar as the amended consolidated complaint .alleges
that Respondent violated the Act by refusing to allow.its;
financial core members to use the pharmacy and eye and
dental clinics, located in its building, the threshold ques
tion tis whether, is alleged in the complaint, the pliarma--
:2 The prescription drug plan which istincorporated-in the collective-
bargaining contracts between the Respondent and the Employers pro-
vides for' reimbursement of 90' percent of the' puce `of prescription drugs
The'employees eligible under the•contracts for such covefage and whose
prescriptions are filled at the pharmacy pay nothing because the pharma
cy.bills, the trust fund administrator ,for 90 percent of, the puce and ac-
cepts that sum as payment }n full' Respondent in it's'postheanng brief
iârges that_ the financial core members have' in fact s`uffer'ed a de mmimis•
loss-of less than the 10-percent 'discount The basis'for this argument,is
allegedly, contained in a document which is not a part,of the record in
this case Accordingly, I have not considered this argument
a Unlike the situation with the pharmacy in the Respondent' s building,
the clinics in the building do not' offer a discount--to. the employees cov,
ered by Respondent 's contracts with the Employers - r - ;
cy, and clinics have 'acted as agents of Respondent in re-
fusing to service the Respondent's financial core mem-
bers. The several factors set forth hereinafter, when con-
sidered together,-have persuaded me that the pharmacy
amd clinics, in refusing to service Respondent's financial
core members,,have acted as Respondent's agents..
Although the pharmacy and clinics are not owned or
operated by Respondent, they are held out to the public,
including Respondent's members, as being Respondent's
pharmacy and Respondent's clinics.
The board of directors of the pharmacy and the clin-
ics, the persons who decided that the pharmacy and clin-
ics would not- serve Respondent's financial core mem-,
bers, are comprised of the same persons who comprise
Respondent's governing body, its executive board.
The policy of refusing to service Respondent's finan-
cial core' members does not benefit the clinics or the
pharmacy. Respondent is the sole beneficiary. Indeed, I
think'that it is fair to presume that this policy' is. de'tri- -'
mental to the interest of the pharmacy and clinic 's inas--
much as'they have lost the business of Respondent's fi-
nancial ;core members . In analogous situations it has 'been
held by the Board and the courts that the'trustees of an
employee benefit 'trust `fund acted as agents of a' union
for the purpose's of the case if they acted, not as fiducia-
ries of'the fund's beneficianes, but for the benefit of the
union . Hospital' Employees ' (Sinai Hospital), 248 NLRB
631 (1980) (Board found the union violated Sec. 8(b)(3)
where union ' trustee, in denying the employer's request
for, bargaining ,information, "was not acting solely in the
interests of the employee participants .. '. but rather was
acting to support the interests of the Unions."); NLRB v.
Laborers Local 1140, 557, F.2d 16, '20 (8th Cir. 1976) (up-
holding finding of agency because the 'evidence showed
trustee "acted on behalf of the union" and "was motivat-
ed primarily by ,a desire to advance union goals"). Here,
it- is abundantly, clear that the board -of directors of the
clinics and pharmacy, who also comprised Respondent's
executive board, .when they directed A he • pharmacy and
clinics to stop serving Respondent 's financial core mem-
bers; , were acting 'to further Respondent's 'goals not those
of the clinic; or•pharmacy.
The conduct-of Respondent's principal officer, Secre-
tary-Treasurer Day,- indicates that Respondent exercises
cogtrol,.over. the, business policies of the pharmacy and
clinics, at least- over the type of business policy involved
in., the, case. For when Stayton's industrial relations man-
ager,. Jerry Butler, . complained to Day that employees
who -were sympathetic toward Stayton during the 1982,
strike ,were .being ,refused service" in, Respondent's phar-
macy,.;Day„ instead; of, taking ,the position that Respond-.
ent had no.control over the-pharmacy's business policies,
responded by stating that if in fact, the pharmacy was
doing, this.thatthe_ Would. see that it was stopped.
'Even, -though ;'the names--of- financial, core members
Tom Gunn and Merle Trumbly were on the pharmacy's
list, of, financial, core members who could not be serviced,
the 'pharmacy serviced them when it was directed to do
so by Respondent's office manager, Hayward, thus
graphically` demonstrating that the pharmacy was acting
at the direction' of Respondent in the matter of not serv-
TEAMSTERS LOCAL 670 (STAYTON CANNING)
ing Respondent's financial core members . (Tr. 251-253,
184-186.)
In refusing to serve the Respondent's financial "core
members-and their families the employees of the pharma-
cy and dental clinics have explained to the financial core
members or their families that it was Respondent which
directed- them to refuse to serve Respondent's financial
core members. Kim Hatfield, a financial core member,
was informed by a pharmacist that it was pursuant to
Respondent's order that the pharmacy could not serve
him. Hatfield's wife was advised by a pharmacist that
Respondent had made the decision that the pharmacy
not serve her husband. Roger Elmore, a financial core
member, was informed by a pharmacist that the reason
the pharmacy could not serve him was that Respondent
had told the pharmacy that it could not serve Respond-
ent's financial core members. And when Nancy Gunn,
whose husband is a financial core member, was refused
service by a pharmacist, the pharmacist explained to
Mrs: Gunn that "she was sorry that she had nothing to
do with it, that it all came from upstairs [referring to Re-
spondent's office]" and told Mrs. Gunn that "she wished
they would do their own dirty work upstairs." Emma
Jones, a financial core member, when advised by an em-
ployee of the dental clinic that the clinic could no longer
serve her, was told by the employee that the clinic had
received orders from Respondent not to serve Jones and
the other financial core members.
All the foregoing factors, taken in their totality, have
persuaded me that the pharmacy and the clinics were
acting in concert with Respondent, that Respondent's ac-
tions were intertwined with the actions of the pharmacy
and the clinics, that the clinics and pharmacy were pur-
suing Respondent's interests not the interests of the clin-
ics or the pharmacy, and that the clinics and the pharma-
cy were therefore acting on behalf of -Respondent and as
an agent of Respondent when they adopted a policy of
refusing to serve Respondent's financial core members.'
2. Respondent violated the terms of its strike
settlement agreements with the Employers by
refusing to allow the pharmacy and dental and eye
clinics in its building to serve its financial core
members and by refusing to issue them work
registration certificates
In the summer of 1982, when collective-bargaining ne-
gotiations for new contracts between Respondent and
the Employers failed to result in agreement , Respondent
struck the Employers in support of its bargaining posi-
tion. A substantial number of the Employers ' employees
did not support the strike and continued to work or
began to work as striker replacements. Several hundred'
of these employees signed and submitted in writing "fi-
nancial core statements" to Respondent in which they
notified Respondent that while they intended to pay Re-
spondent the dues required of them by the, union-security
° In its postheanng brief Respondent cites several cases in'support of
its contention that the evidence does not warrant the conclusion that the
dental and the eye clinics and the pharmacy acted as agents of Respond-
ent when they refused to serve Respondent 's financial core members. I
have considered those cases and am of the'opmion that they are factually
distinguishable in significant respects from the instant situation
915
clause in the governing collective -bargaining agreement,
they would not be bound by Respondent 's rules applica-
ble to full members . Respondent honored these "financial
core statements" and treated 'the employees who signed
them as having resigned from Respondent , if they were
previously members , and did not require the newly hired
striker replacement to join Respondent.
Prior to its strike against the Employers Respondent
did not represent a single employee who was a financial
core member . All of the employees who paid dues to
Respondent were full members . Nor is there any evi-
dence that employees , other than the aforesaid employ-
ees of the Employers who became financial core mem-
bers during the strike , have become financial core mem-
bers . And I will not make such a presumption. In short,
during all times material to this case the only employees
represented by. Respondent who held the status of finan-
cial core members were those employees of the Employ-
ers who decided to become financial core members so
that they could work during Respondent 's strike without
fear of being punished for violating Respondent 's mem-.
bership rules.
Respondent 's strike against the Employers ended when
the parties signed new collective -bargaining contracts
and strike settlement agreements . The strike settlement
agreements and the contracts were regarded by Re-
spondent and the Employers as a part of one package.
The strike settlement agreements, in pertinent part, pro-
vided that "no employee shall be discriminated against in
any way by virtue of lawful activity engaged in during
or in connection with the strike" and that "neither party
shall discriminate against or seek ' any penalty from any
employee . . . because of their choices or actions with
respect to financial core status or resignation."
Approximately 4-1/2'months after Respondent and the.
Employers reached agreement on"the terms of new con-
tracts and executed the strike settlement agreements, Re-
spondent adopted a policy of not providing the same
services to its financial core members at its full members.
More specifically Respondent denied the financial core
members work registration certificates and denied them
the use of the clinics and pharmacy located on Respond-
ent's premises . The discontinuance of these previously
enjoyed services resulted in a financial loss to those af-
fected , besides the inconvenience.
Respondent 's refusal to issue work registration certifi-
cate's to the financial core members and its ' refusal' to
allow the eye and dental clinics'and the pharmacy locat-
ed on its premises to serve them were in clear derogation
of the provisions in Respondent 's'strike_'settlement agree-
ment with the Employers , which stated that no employ
ee shall , be discriminated , against in any way,by virtue of
lawful activity engaged in during or in ' connection with
the strike '" - and that "neither party'- shall discriminate
against or seek ,any penalty from any, employee , . F.. be-
cause of- their choices or actions with respect to financial
core status or resignation ." As I have found - supra, `Re-
spondent 's only financial core members are those em-
ployees,who were employed by the..Employers during
the strike and who in connection with their work for the
916 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employers during the strike. opted. to become financial
core members. -
Respondent urges that its refusal to serve the financial
core members did not breach the terms of the strike set-
tlement agreements because the conduct did not affect-
their, "work environment" and was not motivated by
their strike-related activity. In support of the latter con-
tention Respondent points to the fact that its policy ap-
plies to all financial core members regardless of whether
they, worked for the Employers during the strike and
that the policy does not apply to Respondent's members
who worked during the strike. However, there is-no Ian-,
guage in the strike agreements which either directly or
by implication limits the coverage of the agreements to
conduct which adversely affects employees' work envi-
ronment. Quite the opposite, the language of the strike
settlement agreements - in this respect is without limita-
tion. Regarding Respondent's contention that its conduct
was not in derogation of the strike settlement agreements
because it was not motivated by the, financial core mem-
bers' strike-related activity,,, the record reveals -that Re-
spondent instituted this policy less than 5 months-after
the strike, that Respondent's only financial core members
when the policy was instituted were the Employers' em-
ployees. who had become financial core members in con-
nection with working during Respondent's strike, and
that, Respondent's office -manager-, Grace Hayward, ad-
mitted that one of the reasons Respondent was withhold„
ing services from the financial core. members was due, to
their failure to support Respondent's strike against -the
Employers.-' These circumstances persuade me that there
is sufficient evidence to warrant the inference that" the
Respondent's refusal to serve the financial core members
was prompted by their strike-related- conduct of becom-
ing financial core members so they could work for the
Employers during the, strike without fear of being disci-,
plined, by Respondent.- The fact that, Respondent has,-not
punished those eniployeesiwho chose to work during-the
strike, but did not resign their membership in Respond-
ent, does not detract from this inference? Nor is this in-
ference overcome by the fact that facially Respondent's
policy against serving financial core members applies to
all such' persons regardless of whether or not - they,
worked- for the Employers during the strike. For the'
only financial core members who exist are those who
worked for the Employers and became' financial' core
members so they could ,work for -ihe Employers during
the strike.
,6„ John Gunn, , a financial core , member, was told by.Office.Manager,
Hayward ;that ,the reasons Gunn could not use - Respondent's pharmacy;
and -clinics was that , besides sighing a - financial core statement„ that he
had crossed Respondent 's picket line Later, that same day. Respondent's:
busmess • representative , Marty - Dolan, informed Gunn that in order , for
Gunn to reinstate himself, into good.standing as a;member'of Respondent,
that he; would have to: explain - to Respondent. in-.wnting why. he had
signed'a,financial core statement and crossed Respondent 's picket , line ';I•
also not that- Nancy. Gunn, the wife of a financial core member , and Ro-,
salie Walker,,a financial core member,-when they were refused-services
by Respondent. were told by the persons employed by the Respondent
who communicated the refusal that Respondent was not providing serv-
ices for the, financial core, members because they had crossed the Re-,
spondent 's picket line
It is ' for all of the foregoing reasons that I find that
commencing in December 1982 and continuing thereafter
the Respondent by refusing to issue work registration
certificates to the financial core members employed by
the Employers and by refusing to allow them to use the
eye and•dental clinics and pharmacy located on its prem-
ises, acted in derogation of its strike-settlement agree-
ments with the Employers ,
3. Respondent violated Section 8(b)(1)(A)6
Respondent's refusal to allow the pharmacy and dental
and eye-clinics in its building to do' business with its fi-
nancial core members employed by the Employers and
its refusal to issue them work registration certificates, in
the circumstances of this case, violate Section 8(b)(1)(A)
of the Act. My reasons for this conclusion are as follows.
Respondent's conduct reasonably tends to coerce the
financial core members from exercising their right under
Section 7 ' of the Act 'to refrain from being members of
Respondent. For, besides the inconvenience' they have
suffered by being denied the use of the two clinics and
pharmacy and work registration certificates, the financial
core members, as I have described in detail supra, have
suffered f nancially as .a direct result of Respondent's
conduct. In other 'words, Respondent's conduct consti-
tutes a form of economic reprisal and as such is a form
of coercion, as that'term is used within the meaning of
Section 8(b)(1)(A) of the Act, which reasonably tends to
coerce the financial 'core members employed by the Em-
ployers from continuing ' to exercise their right- under
Section 7 of the Act to remain nonmembers of Respond-
ent. See General Motors Corp. v.' NLRB, 373 U.S. 734,
742 (1963) ("It is permissible to condition employment
upon membership; but membership, insofar as it has sig-
nificance to, employment -rights, may in turn be condi-
tioned' only upon payment of fees and dues. 'Member-
ship' as 'a' condition of employment is whittled down to
its financial core.") Also see NLRB v. Allis-Chalmers
Mfg. Co., 388 U.S 175, 197 fn. 3 (1967),-and Motor Coach
Employees v. Lockridge, 403 •U.S. 274, 284 (1971).
' Respondent's main defense to the violation of Section
8(b)(1)(A) is that its conduct in this case was privileged
under, the proviso to Section 8(b)(1')(A) because Re-
spondent was merely enforcing a union rule which
served Respondent's legitimate interests of discriminating
between Respondent's members and nonmembers. I have
carefully considered this argument and I am of the opin-
ion.that, in view of the Board's decision in San Jose Hos-
pital ,and its progeny,? it is without merit. In San Jose
Hospital. the respondent union fined and expelled, from
membership -the charging party who refused to answer
questions concerning, his union conduct during a strike
e, Sec% 8(b)(1)(A)lof the Act, makes it an unfair labor practice for a
union 'to restrain or coerce employees in the exercise of the rights
guaranteed in section 7 Provided, That this paragraph shall not impair the
not of a labor organization to prescribe its own rules with respect to the
acquisition 'or retention 'of membership therein "
J Operating Engineers . Local 39 (San Jose Hospital), 240 NLRB 1122
(1979) See also Retail Clerks Union Local 1364 (Food Employers Council),
240 NLRB 1127 (1979), Hospital Workers Local 250 (Dameron Hospital
Assn,), .248 NLRB- 1390 (1980), Hospital Workers Local 250 (Associated
Hospitals of East Bay), 254 NLRB 834 (1981)
TEAMSTERS LOCAL 670 (STAYTON CANNING)
against his employer, although the parties had agreed
that no employees would be disciplined by either-the
union or the employer for.any action connected with the
strike. Noting that the amnesty agreement was a product
of the parties' negotiation and that the discipline' imposed
by the union was in derogation of that agreement, the
Board held that the union had acted in contravention of
the basic policy of the Act of encouraging the practice
and procedure of collective bargaining. It also held that
the union's-conduct, in derogation of the strike amnesty
agreement, ran counter to the overriding national policy
of favoring. the peaceful resolution of labor disputes.
Thus, the Board concluded that, notwithstanding the
union's assertion that its conduct served its legitimate in-
terest in maintaining union solidarity' during a lawful
strike, such interests must give way to the national
policy.- Accordingly, the Board held that the conduct in
question was not protected by the proviso to Section
8(b)(1)(A). More specifically, the Board stated (San Jose
Hospital, supra, 240 NLRB'at 1124):
Respondent's conduct' .. . was clearly in deroga-
tion of the amnesty agreement . . . [and] therefore
was in contravention of the basic policy of the Act
of encouraging the practice and procedure of col-
lective bargaining . . . [and] the peaceful resolution
of labor disputes. Thus, notwithstanding [the
union's] assertion here that its conduct served its le-
gitimate interest in maintaining union solidarity
during a lawful strike, such interest must give way
to national policy. Accordingly . . . [the union's]
disregard for and violation of its. collectively bar-
gained-for amnesty agreement impairs congressional
policy embodied in the labor laws and . . . under
the principles of Scofield,.its disciplining of Davis is
not protected by the-proviso'to Section 8(b)(1)(A).
In the instant case, as described in detail supra, I have
found that Respondent's refusal to, allow, the pharmacy
and dental and eye clinics to do business with Respond-
ent's financial core members employed by the Employers
and its refusal to issue them work registration certificates
was in derogation of the terms of the strike-settlement
agreements entered into between the Respondent and the
Employers. I have also found that Respondent's conduct
of refusing to allow the pharmacy and dental and eye
clinics -in its building to do' business with its finanoiali
core members employed by the Employers 'and its refus-
al to issue them work registration certificates are coer-
cive -within the meaning ' of Section - 8(b)('1) of the Act'
and have the foreseeable effect of coercing Respondent's'
financial core members employed by the Employers
from exercising their statutory right to refrain from join-
ing Respondent and remain a' financial core member. In'
view of these circumstances and for the reasons set forth'
in San Jose Hospital, supra, I find that Respondent violat-
ed Section 8(b)(1)(A) of the Act when in derogation of
the terms of its strike settlement agreements with the
Employers it refused to allow.the pharmacy, and eye and,
dental clinics in its building to do business with its finan-
917
cial core members employed by the Employer and re-
fused -to issue them work registration certificates.8
In concluding that Respondent's conduct toward the
financial core members violated Section 8(b)(1)(A) of the
Act because .it breached the parties' strike-settlement
agreements, I have considered' that the complaint does
not contain this allegation Although the complaint al-
leges that Respondent violated Section 8(b)(3) of the Act
by denying its financial core members employed by the
Employers the use of the clinics and pharmacy and work
registration certificates in derogation of the terms of the
parties' strike-settlement agreements, it, does not allege
that this conduct violated Section 8(b)(1)(A) of the Act.
The complaint alleges that Respondent violated Section
8(b)(1)(A) by denying financial core members employed
by the Employers the use of the clinics' and pharmacy
and work registration certificates. Nevertheless, in the
circumstances, I believe the record warrants a finding
that Respondent violated Section 8(b)(1)(A) by virtue of
the conduct against its financial core members employed
by the Employers in derogation of the parties' strike-set-
tlement agreements. All of the elements essential to such
an allegation were fully litigated and' there is no indica-
tion that Respondent's defense has-been prejudiced due
to the fact that the complaint, while alleging that the
conduct in question violated Section 8(b)(3), did not
allege that- it violated Section 8(b)(1)(A).'See Associated
Home Builders v. NLRB, 352 F.2d 745; 751-754 (9th Cir.
1965); AMC Air Conditioning, 232 NLRB 283, 285-286
(1977). . .
4. Respondent violated- Section 8(b)(3) of the Act9
Where a labor organization during the term of a col-
lective-bargaining contract unilaterally without the em-
ployer's consent adopts-and enforces a union policy or-
rule which is in derogation of rights guaranteed the em-
ployees by the' terms of the contract, the union's action
violates Sections 8(b)(3) and 8(d) of the Act. See NLRB
v. Communications Workers Local 1170 (Rochester Tele-
phone), 474 F.2d 778, 780-782 (2d Cir. 1979); - Painters
New York District Council 9 v. NLRB, 453 F.2d 783,(2d
Cir. 1971), NLRB v. Teamsters Local 100, 526 F.2d 731
(6th Cir. 1975); Communications Workers Local 1122, 226
8 In view of my decision, I find it unnecessary to pass upon the allega-,
tibn that Respondent's conduct toward the financial core members would
have'violated Sec 8(b)(1)(A) of the Act even if it were not in derogation
of the parties' strike-settlement agreements ,
8 In its postheanng brief Respondent urges that since the dispute
which this allegation encompasses is cognizable under the grievance-arbi-
tration provisions in the parties' collective-bargaining contracts it' should
be resolved pursuant to those provisions I have not considered the'nients
of this contention because Respondent did not' raise the issue of deferral
in its pleadings or at'the hearing, but first raised it in its brief Thus, as
the issue was not litigated at the hearing, the record evidence before me
is insufficient for- a finding that deferral is warranted Maine Yankee
Atomic'Power Co', X258 NLRB 832 (1981) See also Wheeling-Pittsburgh
Steel Corp. v NLRB,i 618 F 2d 1009, 1014-16 (3d Cir 1980) I also note
that it is doubtful whether deferral to the contractual gnevance-arbitra-
tion procedures is appropriate here because the Employers have no obli-
gation to represent the financial core members before an arbitrator and it
is uncertain whether the interests of the Employers and the financial core
members are'the same See Operating Engineers Local 39 (San Jose Hospi-
tal), 240 NLRB 1122 fn 1 (1979)
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 97, 98 (1976); and Associated Home Builders v.
NLRB, supra, 352 F.2d at 750-753 (9th Cir. 1965). '
In the instant case the strike-settlement agreements be-
tween Respondent and the Employers are the product of
collective bargaining and are a part of the parties' collec-
tive-bargaining agreements. As described in detail supra,
during the term of the strike-settlement agreements Re-
spondent without the consent of the Employers acted
unilaterally in derogation of the employees' rights estab-
lished by the strike-settlement agreements, when, pursu-
ant to a newly adopted union rule, it refused to allow the
dental and eye clinic and pharmacy in its building to do
business with its financial core members employed by the
Employers and refused to issue them work registration
certificates. If the provisions in the strike-settlement
agreements which have been violated by Respondent's
conduct are a mandatory subject of bargaining then Re-
spondent's conduct violates Section 8(b)(3) and Section
8(d) of the Act.' 0
Section 8(d) of the Act defines 'the 'subject about
which employers and unions must bargain as "wages;
hours, and other terms and conditions of employment
. .. " However, this definition "does not immutably fix
a list of subjects for mandatory bargaining"; the broad
language of Section 8(d) encompasses, at a minimum, all
"issues that settle an aspect of the relationship between
the employer and employees." Chemical Workers v. Pitts-
burgh Glass, 404 U.S. 157, 178 (1971). Accord: NLRB 'v.
Wooster Division of Borg-Warner, 356 U S. 342, 350
(1950). Any determination of what is or what is not a
subject for mandatory bargaining must start with the pri-
mary purpose of the Act which is "to promote the
peaceful settlement of industrial disputes by subjecting
labor-management controversies to • the mediatory' influ-
ence of negotiation." Fibreboard Corp. v. NLRB, 379 U.S.
203, 211 (1964) While "the Act does not encourage a
party to engage in fruitless marathon discussions," it at
least requires him to submit a dispute to this salutory in-
fluence. 379 U.S. at 214. The root, question is whether
the dispute shall be resolved within "the framework [of
collective bargaining] established. by Congress as most
conducive to industrial peace" (id. at 211), or left outside
that framework to fester without negotiation and perhaps
break out in economic warfare. Given these' alternatives,.
it is reasonable to assume that Congress intended the 8(d)
definition-"wages, hours and other terms and condi-
tions of employment"-to be a- broad one." The Su-
10 Sec 8(d) of the Act prohibits midterm. unilateral modifications and
terminations of collective -bargaining agreements, but only with regard to
mandatory subjects of bargaining Chemical' Workers v P,ttsbuigh 'Glass,
404 U S 157,-185-188(1971) t- . ,
11 Thus, the original Wagner Act did not contain- a section like the
present 8(d) purporting to define collective bargaining It did, however,
state in Sec 9(a) that a majority union shall be the exclusive representa-
tive "for-the purposes of-collective bargaining in respect to rates of pay,'
wages; hours of employment or other conditions of,employment " Legis-
lative History of Labor-Management Relations Act, 1947 (G P 0,- 1948),
vol 2, p 1669 When the Taft-Hartley Act was'bemg considered by Cons
gress in 1947, the House added Sec 8(d) and sought to specifically enu-
merate various subjects to which collective bargaining would be limited
I Leg Hist 163-167, 313-314 This version of Sec 8(d) was opposed on
the ground,-inter alia, that what is a proper subject for collective bargain-
ing "should not be straitjacketed by legislative enactment " 1• Leg Hist
362 This reasoning apparently was persuasive in the Senate since it suc-
preme Court recognizes that Section 8(d) does not immu-
tably fix. a particular list of subjects for mandatory bar-
gaining inasmuch as the Court has repeatedly approved
the propriety of looking into industrial practices as an aid
in determining the scope of Section 8(d). E.g., Fibreboard
Corp. v. NLRB, 379 U.S. at 211 (1964).
Guided by the aforesaid principles I am of the opinion
that the sections of the strike-settlement agreements vio-
lated by Respondent's conduct are mandatory subjects of
bargaining. My reasons for this conclusion are as follows.
As I have found supra, Respondent's refusal to issue
work registration. certificates to its financial core mem-
bers employed by the Employers and its refusal to allow
them to use the pharmacy and eye and dental clinics lo-
cated in its building violates the portions of the parties'
settlement agreements which provide that "no employee
shall be -discriminated against in any way by virtue of
lawful activity engaged in during or in connection with
the strike" and that "neither party shall - discriminate
against or seek any penalty from any employee . . . be-
cause of their choices or actions with respect to financial
core status or resignations." These sections of the settle-
ment agreements settle an aspect of the employment rela-
tionship between the Employers and their employees.
The purpose of these sections was to assure that those
employees who worked during the strike would not be
the subject of adverse action by the Respondent because
they had chosen to work during the strike and in con-
nection with this choice had opted to become financial
core members so as to avoid being penalized by Re-
spondent for their refusal to support its strike. In other
words, the sections of the strike settlements which Re-
spondent violated involve a highly significant aspect of
the employment relationship between the Employers and
their employees, namely, the employees' decision wheth-
er or not to' work for the Employers ' during Respond-
ent's strike. - • -
Not only was the purpose of those sections of the
strike-settlement agreements which were violated by Re-
spondent's conduct directly related to a significant aspect
of the relationship between the Employers and their em-
ployees, but the manner in which Respondent violated
the agreements adversely affected the employees' exist-
ing terms and conditions of employment. Thus, one of
the employees' benefits of employment contained in the
parties' collective-bargaining agreement is' that the em-
ployees may choose their own provider with respect to
eye, dental, and drug services. Respondent's conduct re-
stricts this benefit insofar as the financial core members
are concerned by prohibiting them from using the serv-
ices of the pharmacy and eye and dental clinics located
in Respondent's building, even though these facilities are
available to everyone else.
Lastly,-in determining whether or not the strike-settle-
ment' agreements herein constitute a mandatory subject
of bargaining J note that the inclusion of provisions relat-
cessfully resisted the House version and won acceptance of the present
8(d) language, which, as can readily be seen, is substantially identical to
the Sec 9(a) language of the Wagner Act 2 Leg Hist 1541, 1668, 1669
The original Wagner'Act Sec 9(a) has remained in the Act to the present
day . • .
TEAMSTERS LOCAL 670 (STAYTON CANNING) 919.
ing to a strike settlement as a part of a collective-bar-
gaining contract is a widespread practice in all industries
as a means : of settling contract disputes which have re-
sulted in a strike. They appear to play a significant role'
in helping the parties to develop mutually acceptable
compromises during the course of the negotiations lead-
ing to a cessation of a strike and. a peaceful settlement of
the dispute, which is, of course, the primary purpose of
the Act. -
It is for all the foregoing reasons that I am persuaded,-
that the sections of the strike- settlement agreements vio-
lated by Respondent's conduct constitute mandatory sub-
jects of. bargaining.12 I therefore find that by violating
the . strike-settlement agreements Respondent violated
Section 8(b)(3) and Section 8(d) of the Act as alleged in
the complaint.13
CONCLUSIONS OF LAW
1. The Employers, Stayton Canning Company Cooper-
ative and Agnpac, Inc., each is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act. -
2. The Respondent, Teamsters Cannery Local No. 670,
affiliated with 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. By refusing to issue work registration certificates to
its financial core members employed by the Employers
and its refusal to allow them to use the pharmacy and
eye and dental clinics located in its building, in violation
of the terms of its strike-settlement agreements with the
Employers, the Respondent violated Section 8(b)(1)(A)
and (3) and Section 8(d) 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 violated the Act by re-
fusing to issue work registration certificates to its finan-
. 12 The question of whether the sections of the stnke-settlement. agree-
ments violated by the Respondent 's conduct are mandatory subjects of
bargaining was unfortunately not briefed by any of the parties I have not
been able to locate a case where the Board has specifically discussed this
precise issue However , in San Jose Hospital, supra, the Board seems to
have implicitly held that a strike-settlement agreement was a mandatory
subject of bargaining There, as I have described in detail supra, the
Board held that a respondent union's conduct was not 'protected 'by the''
proviso to Sec 8(b)(1)(A) of the Act because'the conduct was'm'deroga-'
tion of the parties ' stnke-settlement agreement , referred to as an amnesty
agreement In this regard the Board (240 NLRB at 1124) explained
Respondent 's conduct was clearly in-derogation of the amnesty
agreement [and] therefore was in 'contravention of the basid
policy of the Act of encouraging the practice and procedure"of col- '
lective bargaining - [and] the peaceful resolution of labor . disputes
Accordingly [the union 's] disregard for and violation of ,
it`s collectively bargained for amnesty agreement impairs congres-
sional policy embodied in the labor laws and under the pnnci '
pies of Scofield, its disciplining of Davis is not protected _ by the pro-
viso to Section 8(b)(1)(A)
13 The failure of the Employers to demand that Respondent bargain
about or cease and desist from its disputed unilateral conduct is not, as
contended by Respondent, a defense to this violation See Exxon Co
U.SA.,253NLRB 213fn 2(1980)
cial core members employed by Stayton Canning Com-
pany Cooperative and Agripac, Inc. and its refusal- to
allow them to use the pharmacy and eye and dental -clin-
ics in its building in violation of the terms of its strike-,
settlement agreements with the Employers, I shall rec-
ommend that Respondent cease and desist. from engaging
in this conduct and to make whole its-financial core,
members employed by the Employers-for any. financial
losses they may have suffered as a result of-Respondent's
illegal conduct, with interests as provided in Florida Steel
Corp., 231 NLRB 651 (1977).14 The identity of the finan-
cial core members affected by the Respondent's unfair
labor practices and the amount of financial losses they
may have suffered as the result of the unfair labor prac-
tices shall be left to the compliance stage of this proceed-
ing.
Respondent urges that the only financial core members
who suffered financial losses as a result of its unfair labor
practices whose losses should be remedied are those who
were specifically identified, during the. hearing in this
case. I have rejected this contention because Respond-
ent's unfair labor practices were not directed toward sev-
eral employees but against a whole class of employees _
numbering in the hundreds. Under the circumstances
leaving the determination of the identity of the employ-
ees who suffered financial losses as a result of Respond-
ent's unfair labor practices for the compliance ,stage of
this proceeding represents an orderly and efficient means
for processing a backpay order of this kind,, particularly,
since the Respondent waited -until -the, hearing had
opened in this case before objecting to this • procedure.,
See - NLRB v. Iron Workers Local 433, 600 F.2d .770,; 778
(9th Cir. 1979); Iron Workers Local'480, 235,NLRB 1511;
1514 (1978); Iron Workers Local 373, 232 NLRB:504, 506
(1977); Electrical Worker.-Systerri Council T=61BEW, 2361'
NLRB 1209, 1210 (1978); Sav-On Drugs, 253 =NLRB 816,
fn. 2 (1980). As the, Court' in'=Iron= Worke'rs' Local 433,
supra, 600 F.2d at 778, 'explained:
--
'Although-the identification' of the individual' discn--
minatees may require more litigation than is typical
for'backpay proceedings, we think' the Board' acted
iii its discretion 'in reserving the issue until after en-
forcement.
Because the determination of whether unfair labor
practices have occurred is itself subject to judicial
review, there is' always a substantial risk that exten-
sive proceedings to determine the amount of habil-
ity may be rendered superfluous by a reversal of the.
underlying violation ! .' We think that leaving the
• t iF ^ 1, •. , ,.
identification of the 'discriminateesl and the backpay
due them to,-the„ compliance; stage of,th"e,proceed
ings represents Ian orderly and 'efficient'meatis-for.,
processing backpay `"orders in this kind of case.
14 See generally Isis Plu»ibiǹg'Co,138 NLRB'716 (1962)
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On these .findings of fact and conclusions of law. and
on the entire record, I issue the following recommend-
ed"
ORDER
The- Respondent, Teamsters Cannery Local No. 670,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Salem , Oregon, its officers, agents , and representatives,
shall - -
1. Cease and desist from
(a) Refusing to issue work registration certificates to
its financial core members employed by Stayton Canning
Company Cooperative and Agripac, Inc. and refusing to
allow them to use the pharmacy-and eye and dental clin-
ics located in its building, in violation of the terms of its
strike-settlement agreements with the Employers.
• (b) Refusing to -bargain- with Stayton Canning Compa-
ny Cooperative and Agripac, Inc by engaging in the
above-described conduct -without affording the Employ-
ers, a timely opportunity to bargain within the meaning
of-Section 8(d) of the Act.
(c) In any like or related manner interfering with, re-
straining,, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Make whole its financial core members employed
by Stayton Canning Company Cooperative and Agripac,
Inc. for any financial losses they may have suffered as
the result of its unlawful refusal to issue them work reg-
istration certificates and to allow them to use the phar-
macy and eye and dental clinics in' its building, with in-
terest.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll-records, social security payment records, timecards,
personnel records and reports, and all -other records nec-
essary to analyze the amount of backpay due under the
terms of this Order. -
(c) Post at Respondent's business offices and meeting
halls copies of the attached notice marked "Appen-
dix."16 Copies of the notice, on forms provided by the
Regional Director for Region 19, after being signed by
the Respondent's authorized representative, 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 cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Mail to.the Regional Director for Region 19 signed
copies of the aforementioned notice for posting by Stay-
ton Canning Company Cooperative and Agripac, Inc., if
they are willing, in places where notices to employees
are customarily posted. Copies of the notice, to be fur-
nished by the Regional Director shall, after being signed
by Respondent as indicated, be returned to the Regional
Director.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the -Re-
spondent has taken-to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found herein. _
15 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 pur-
poses
16 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "