The Borden Co.

.802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE BORDEN COMPANY, MARICOPA DIVISION and LOCAL UNION No. 274 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS . Case No. 01-CA-1731. November 8,1954 Decision and Order On January 15, 1954, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommended that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the General Counsel and Charging Union filed exceptions to the Intermediate Report together with supporting briefs, and the Respondent filed a brief in support of the Intermediate Report. 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations contained in the Intermediate Report. [The Board dismissed the complaint.] MEMBER PETERSON took no part in the consideration of the above Decision and Order. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed on July 1, 1953,1 by Local Union No. 274 of the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, herein called the Union, the General Counsel of the National Labor Relations Board, herein -respectively called the General Counsel and the Board, by the Regional Director for Twenty-first Region (Los Angeles, California), issued his complaint, dated October 26, alleging that The Borden Company, Maricopa Division,2 herein called Respond- ent, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (5) and (1) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint and the charge, together with notice of hearing thereon, were duly served upon Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that Respondent, in violation of Section 8 (a) (5) and (1) of the Act: (1) Unilaterally and without prior consultation with the Union, the authorized and recognized repre- sentative of the employees here involved, instituted a change in the workweek of said employees; (2) refused the Union's request to discuss the change of said em- ployees' workweek prior to the institution of the change; and (3) refused the Union's request, after the said employees' workweek had been changed, to discuss with the Union the problems arising therefrom. On November 5, Respondent duly filed an answer denying the commission of the alleged unfair labor practices. 1 Unless otherwise noted all dates refer to 1953 2 At the hearing the name of Respondent was corrected to read as above. 110 NLRB No. 127. THE BORDEN COMPANY 803 Pursuant to due notice , a hearing was held at Phoenix , Arizona, on November 24, before the duly designated Trial Examiner. The General Counsel , Respondent, and the Union were represented by counsel and participated in the hearing. Full op- portunity to be heard , to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded the parties. At the opening of the hearing, Respondent's counsel moved to dismiss the complaint on the ground that the complaint failed to allege facts constituting a cause of action . Decision thereon was reserved. At the close of the General Counsel 's case-in-chief, Respondent's counsel moved to dismiss the complaint for lack of proof. Decision thereon was reserved. The motions are disposed of in accordance with the findings, conclu- sions, and recommendations hereinafter set forth. At the conclusion of the taking of the evidence, Respondent's counsel argued orally. The parties then were advised that they might file briefs with the Trial Examiner on or before December 14. Briefs have been received from the General Counsel and from Respondent 's counsel which have been carefully considered. Upon the entire record in the case and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS OPERATIONS The Borden Company, Maricopa Division, a New Jersey corporation , is an integral part of a multistate enterprise engaged in the processing , selling, and distribution of milk and milk products . These proceedings , however, involve only certain em- ployees of Respondent's Phoenix , Arizona, plant. For the 12-month period ending June 30 , Respondent purchased for and had shipped to its Phoenix , Arizona, plant, from points outside the State of Arizona, bottles, cartons, milk cans, sugar, and other such articles and equipment valued in excess of $500,000. Upon the above undisputed facts, the Trial Examiner finds that Respondent is, and during all times material herein was, engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Local Union No. 274 of the International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers , affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of Respondent's Phoenix, Arizona, plant. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The pertinent facts For about the last 10 years Respondent and the Union have had collective-bar- gaining agreements covering certain persons employed at Respondent's Phoenix plant. The last two of such agreements had been negotiated on an industrywide basis but with separate contracts between Respondent and the Union. The 1952-1953 agreement , which covered the period ending April 30, provided for written notice by either party desiring to terminate or change its terms be given the other party within a certain specified time. On March 5 , the Union submitted certain written proposals to Respondent and other employers to the industrywide contract for modification of the existing con- tract. Included in the proposals was a suggestion that Section 1 (b) of the retail route drivers supplemental agreement be modified. This supplemental agreement was executed at the same time the industrywide 1952-1953 agreement was entered into and covers Respondent's retail route drivers whom the Union represents. The Union proposed that section 1 (b) which then read, "Six (6) days shall constitute a work week." be modified to read, "Five consecutive days shall constitute a work week with a 7-day delivery. All trucks shall be loaded and ready to go when route salesman reports for work." For many years prior to June, Respondent had maintained a 7-day customer de- livery schedule on its retail routes under which each customer was served on an "every-other-day" basis. Each retail route driver worked 6 days a week with 1 day off each week, which day was a day other than Sunday. In June, a public controversy arose in the Phoenix area over the question of Sunday work which caused Respondent's officials to consider the advisability of eliminating Sunday retail deliveries. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 11, the Union, after it had learned indirectly that Respondent was about- to discuss with its retail route drivers the discontinuance of Sunday deliveries, wrote Respondent asking that the proposed change in deliveries be discussed with the Union's officials rather than with the drivers directly. Under date of June 24, Re- spondent informed the Union of its unwillingness to discuss the proposed change- maintaining that under the then existing contract the discontinuance of Sunday de- liveries was a matter involving the exercise of management's prerogatives and hence not a proper matter of collective bargaining. Between June 25 and 27, Respondent informed its retail customers and the public generally that Sunday deliveries would be discontinued after the June 28 delivery. On June 29, Respondent instituted, without prior consultation with the Union, a customer delivery schedule eliminating Sunday deliveries and scheduling deliveries to customers on a "three-days-a-week" basis. However, all retail route drivers have continued to work 6 days a week with 1 day off. All such employees now have the same day off each week; namely, Sunday. All other employers who are signatories to the current industrywide contract have- continued to maintain the 7-day retail customer delivery schedule. Under date of July 2, the Union wrote Respondent requesting a meeting to discuss the discontinuance of the Sunday deliveries and also to discuss the effect which the change had upon the employees involved Under date of July 6, Respondent replied that under the terms of its agreement with the Union the elimination of Sunday deliveries was permissible. The letter reads in part as follows: Naturally, if you desire any further explanation of the six-day delivery week and its effect upon the employees involved, we will be happy to meet with you. And, of course, we are always ready to entertain and process as a grievance any dispute that arises out of the interpretation or application of the Agreement. For example, if you feel that the effect of the six day delivery week upon any of our employees has been such as to amount to a deviation from any of our obliga- tions under the Agreement, we will be happy to discuss such matter with you in; accordance with our obligation under the Agreement. . . . At the initial industrywide bargaining conference regarding the 1953-1954 con-- tract, which took place on or about March 25, George S. Sebestyen, the Union's sec- retary-treasurer, said, while discussing the Union's proposal to change section 1 (b) of the retail route drivers supplemental agreement, referred to above, that the Union wanted some guarantee that the employers, including Respondent, would not deviate from the established 7-day retail delivery schedule. At the next joint union-employers conference, held on or about April 2, which was. also attended by a representative of Respondent, the employers rejected th. Union's. above-referred-to proposal maintaining that they did not want any provision in the- contract which would restrict any further than already restricted their right to sched- ule customer deliveries. Thereafter the Union's proposal to modify section 1 (b) was never brought up nor discussed again at any subsequent meeting prior to the execution of the current 1953-1954 contract. The current retail route drivers supple- mental contract between Respondent and the Union, which was executed at the same time the 1953-1954 industrywide contract was entered into, section 1 (b) reads as it did in the 1952-1953 supplemental. B. Concluding findings The General Counsel contended at the hearing and in his brief that Respondent violated Section 8 (a) (5) of the Act on June 29, and thereafter, by unilaterally and without consultation with the Union instituting a 6-day delivery schedule for retail customers in place of the 7-day delivery schedule previously in effect, although the Union had requested discussion of the matter prior to June 29. Respondent, on the other hand, argued that by the reason of the provisions of the current agreement between the parties here involved, dated June 1, and by virtue of the provisions of Section 8 (d) of the Act, it was under no obligation to bargain on the question of changes in customer delivery schedule subsequent to the date of the execution of said agreement and prior to the commencement of the period during which either party may propose to the other modifications of the agreement. Respondent's argument , in the main, is bottomed on the theory that since the- current contract, arrived at after "give and take" of negotiations, is a completely integrated document covering rates of pay, wages, hours of employment , and other conditions of employment covering the employees represented by the Union it didl not violate the Act when it instituted a new, customer delivery, schedule on June 29„ without prior consultation with the Union. THE BORDEN COMPANY 805 In support of its position , Respondent points to the following provisions of the current retail route drivers supplemental agreement. Section 1 (a) It is understood and agreed that no products shall be delivered [to] retail customers before 7 a. m. Section 1 (b) Six (6) days shall constitute a work week. and to the following provisions of the current industry -wide agreement to which Respondent is a signatory: Section 3 (a) . . . The Union does not and will not claim any share or voice in the management of business except to represent employees in matters covered by this agreement. - Section 3 (c) Any dispute arising out of the interpretation or application .of the terms of this Agreement shall be subject to arbitration... Section 16 . . . It' is understood and agreed that all matters subject to collec- tive bargaining have been covered in this Agreement and it may not be opened before 1954 for change in its terms, or addition of new subject matter, except as may be mutually [agreed] upon by the parties. The evidence, as epitomized above, clearly shows that the agreement in question limited Respondent's prerogative to schedule retail deliveries as Respondent saw fit to the extent that no deliveries could be made prior to 7 a. in. Respondent , there- fore, was free to schedule or reschedule the deliveries in any manner it desired. Furthermore , by virtue of the provisions of Section 8 (d) of the Act,3 Respondent's rejection, after negotiations, of the Union's proposal to modify section 1 (b) of the retail route drivers supplemental agreement discussion of the matter of rescheduling deliveries was foreclosed during the life of said agreement . Moreover, the contract is free from doubt that the parties waived any right either had to require the other to bargain on any matter during the life of the contract , whether or not such matter was contained therein or was discussed prior to its execution . In addition, the con- tract provides in detail for grievance and arbitration procedures to be followed for the binding settlement of "any dispute arising out of the interpretation or applica- tion of the terms" of the agreement . Respondent, in its letter of July 6, suggested that the Union meet with it in order to discuss the rescheduling matter and its effect upon the retail route drivers or avail itself of the contract's grievance pro- cedure. The Union accepted neither suggestion. Upon the record as a whole the Trial Examiner is convinced, and finds, that the .allegations of the complaint that Respondent violated Section 8 (a) (5) and (1) of the Act, are not sustained by the evidence . Accordingly, the Trial Examiner rec- ommends that the complaint , in its entirety, be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Borden Company , Maricopa Division, at its Phoenix, Arizona, plant, is engaged in and at all times material herein has been engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Local Union No. 274 of the International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers , affiliated with American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The allegations of the complaint that Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act have not'been sustained. [Recommendations omitted from publication.] S The poi Lion of this section pertinent to the instant proceeding reads as follows : The duties imposed upon employers [ to bargain collectively ] . . . shall not be con- strued as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period , if such modification is to become effective before such terms and conditions can be reopened under the pro- visions of the contract.