Bristol Consolidators, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bristol Consolidators, Inc., and Richard A. Rinehart International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, General Teamsters Union Local No. 564 and Richard A. Rinehart. Cases 6-CA-10307 and 6-CB-4064 December 6, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On June 14, 1978, Administrative Law Judge Mel- vin J. Welles issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his remedy' and recommended Order, as modified herein.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondents, Bris- tol Consolidators, Inc., Greenville, Pennsylvania, and International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Gen- eral Teamsters Union Local No. 564, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph B, I, (c): "In any like or related manner restraining or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act." 2. Substitute the attached Appendix B for that of the Administrative Law Judge. APPENDIX B NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT act as the collective-bargaining representative of the employees of Bristol Con- solidators, Inc., unless and until we have been certified by the National Labor Relations Board as the exclusive bargaining representative of such employees. WE WILL NOr give any force or effect to our contract with Bristol Consolidators, Inc., execu- ted on December 14, 1977, or to any modifica- tion, extension, renewal, or supplement thereto. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WIL. jointly and severally with Bristol Consolidators, Inc., reimburse their present and former employees, except those who joined us prior to their employment by the Company at its Greenville, Pennsylvania, warehouse, for any in- itiation fees, dues, or other moneys paid or with- held from them pursuant to the aforesaid agree- ment or any agreement superseding it. INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, GENERAL TEAMSTERS UNION LOCAL No. 564 DECISION SAIFEMENT OF THE CASE MELVIN J WELLES. Administrative Law Judge: This case was heard at Mercer, Pennsylvania, on December 8, 1977, based on charges filed June 14, 1977, and amended August 25, 1977, and a complaint issued August 26, 1977, alleging that Respondent Company violated Section 8(a)(1), (2), and (3) and Respondent Union violated Section 8(b)(1)(A) and (2) of the Act. The General Counsel and Respondent Company have filed briefs. Upon the entire record in the case, including my obser- vation of the witnesses, and upon consideration of the briefs, I make the following: FINDINGS OF FACT See Isis Plumbing & Heating Co., 138 NLRB 716 (1962) for rationale on interest payments. 2 In par. B,I. of his recommended Order, the Administrative Lawss Judge inadvertently failed to include the narrow cease-and-desist language "in an) like or related manner" which the Board traditionally provides in cases involving 8(aXI) violations. We shall modify the recommended Order and notice accordingly. 1. THE BUSINESS OF IHE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Respondent Employer is a Pennsylvania corporation, with its principal office in Pittsburgh, Pennsylvania, and a 602 BRISTOL CONSOLIDATORS. INC. warehouse facility at Greenville, Pennsylvania, where it is engaged in the business of transporting merchanidse for G. C. Murphy Co. During the 12-month period prior to issuance of the complaint herein, the Company performed services valued in excess of $50,000 for G. C. Murphy Company; during the same period, G. C. Murphy received directly from outside the Commonwealth of Pennsylvania goods valued in excess of $50,000 and sold products valued in excess of $500,000. I find, as the Company admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent Union is, as it admits, a labor organization within the meaning of Sec- tion 2(5) of the Act. I. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The facts of this case are not in dispute. The Company operated a warehousing facility at Bristol, Pennsylvania, until mid-December 1976. At that location it received bulk merchandise and then, through another company, J & S,' also owned by John Ghaznavi, president and owner of Bristol Consolidators, delivered the merchandise to various retail stores. It serviced J. C. Penney and Thrift Drugs. The Company had a contract with Local 470 for its Bristol warehouse which does not cover any drivers. The contract, which had been submitted to and approved by the Eastern Conference of Teamsters before it became "binding," con- tains a provision to the effect that provisions of the Phila- delphia supplement to the National Master Freight Agree- ment were incorporated by reference.2 A letter, referred to by several witnesses as an "addendum," was written by Executive Director of Motor Transport Labor Relations Joseph McCann, on August 12, 1974, and addressed to the Company and Local 470, indicating the agreement of the parties that the Company would notify Local 470 of any possible closing of the Bristol warehouse, that the Compa- ny would afford first opportunity to transfer to any new warehouse opened in the geographical area of the Eastern Conference of Teamsters to Bristol employees, and that Local 470 would be the bargaining representative of any such newly opened warehouse, "subject ... to any appro- priate jurisdictional award by any body having authority over such union jurisdiction." In August 1976, business at Bristol dropped off consider- ably. As a result, President Ghaznavi sought new business. He was told by G. C. Murphy Co. that he would get freight from them if he relocated to Greenville, Pennsylva- nia. Ghaznavi notified his employees that he would be re- locating to Greenville, and that he would take any employ- ee there who wanted to move. Some of the employees indicated their desire to do so. Ghaznavi also notified the Union of these plans. He spoke with the cosecretary of the IJ & S employed drivers; Bristol Consolidators did not. J & S was under contract at its Pennsylvania location (this Compan) also operated at several other locations in various States) with Local 470 of the Teamsters. This latter contract provides for various grievance procedures and re- quires that transfers of operations be approved by a Conference Area Com- mittee. Eastern Conference of Teamsters Grievance Committee, Hutchinson (apparently an employer representative on that committee), about his plans, and Hutchinson told Ghaznavi that he had to negotiate with any Teamsters lo- cal that had jurisdiction in the location he was selecting. On November 11, 1976, Ghaznavi met with Charles Mervine, then business agent of Teamsters Local 564, the Respondent Union here. Ghaznavi and Mervine discussed "terms" of a contract, including changes from the Local 470 contract then in force to meet "local conditions." A few days later, on November 14 or 15, Mervine told Ghaz- navi he should "go ahead and have the terms that have been negotiated . . . printed up as a contract." Some time in December 1976, a contract was executed between the Company and Local 564, effective January 2, 1977, and running to January 2, 1980. This contract contained a 61- day union-security provision.3 In the middle of December 1976, operations at Bristol closed. The Company moved all equipment, furniture, etc., to Greenville and also purchased new equipment. It did not actually begin operations at Greenville, because of complications with beginning work for G. C. Murphy, un- til about January 17. Early in January some employees from Bristol had reported to Greenville but left, telling Ghaznavi they could not wait and no longer wanted em- ployment. As a result, no former Bristol employee worked for the Company at Greenville after operations began. Among the all new employee staff, hired by new Company Manager Cagiano, there were at first only three warehouse- men. About the end of January, more warehousemen, as well as drivers, were hired, and by the time of the hearing in the instant case, there were about 25 warehousemen, II drivers, 3 clericals, and a maintenance man employed. Both Company Manager Cagiano and Union Business Agent Mervine testified that the new employees were told they were obligated to join Local 564 after 61 days. Al- though not all employees joined Local 564 and there was never any request for an employee's termination as a result of his not joining, many employees did join, and some exe- cuted dues checkoff authorizations. After the complaint herein was issued, Local 564 stopped collecting dues on the advice of Eastern Conference of Teamsters officials. B. Discussion 1. Contentions of the parties The General Counsel contends that the execution of the contract containing a union-security clause between Re- spondent Company and Respondent Union on November 14 or 15, covering Greenville, Pennsylvania, warehouse- men and truckdrivers, when Local 564 did not represent a majority of the Company's employees at Greenville, which had not yet begun to operate, violated Section 8(a)(1), (2), and (3) of the Act and that the Union violated Section 8(b)(1)(A) and (2). Respondent Company 4 contends, in defense, that it "did merely that which the labor agree- Unlike the previous contract with Local 470. the new contract with Local 564 covered Iruckdnsers as well as wvarehousemen 4Respondent Union did not file a brief hbut denied. In its answer toi the complaint. hasing sviated the Act in an, way 6(13 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments that it had entered into provided," i.e., that it had a continuing contract with Local 470 and the Eastern Con- ference of Teamsters, terms of which provided for a contin- uing bargaining relationship with an appropriate local of the Teamsters, for any newly opened operation within the Eastern Conference's jurisdiction. As a predicate to the foregoing contention, the Company asserts that its move to Greenville "was merely a relocation of an existing facility." To bolster this contention, the Company adverts to the facts that all equipment was moved from Bristol to Green- ville and that all employees at Bristol were offered the op- portunity to transfer to Greenville. The Company further contends that it had a statutory obligation to bargain about the "relocation" of its ware- house facilities. Had it "attempted to avoid bargaining with the Union pursuant to its agreement, when it relocat- ed its operations to Greenville, it would have been subject to an unfair labor practice based on a repudiation of those agreements and an attempted avoidance of the bargaining relationship." Also, asserts the Company, when Ghaznavi and Mervine "negotiated" the new agreement, the Compa- ny was operating under the assumption that, at least initial- ly, Greenville would be manned by transferees from Bristol and that only "through a quirk of fate" did this not eventu- ate. As a corollary to this argument, the Company asserts that some of the initial work force had transferred from other Teamster locals and that the General Counsel did not meet his burden of showing that "such transferees did not constitute a majority of the work force." I reject this latter argument out of hand, for the fact that some new employees may have been members of other locals at other employers would in no event serve to indicate their desires for union representation at the Greenville location of this company. Finally, the Company argues, alternatively, that the Greenville operation "constituted an accretion to the existing bargaining unit." 2. Conclusions Most of Respondent Company's arguments are well founded in law but founder on the facts of this case. It is true, of course, that a company about to "relocate," 5 and possessed of a contract with a union containing clauses such as the Company's contract did, is in something of a dilemma. At a minimum it is obligated to consult and bar- gain with the incumbent bargaining representative con- cerning the relocation and its consequences and violates Section 8(aX5) of the Act if it refrains from doing so. I have little doubt but that this Respondent was in good faith in believing its obligations extended to the point of negotiating a new agreement with a constituent member, Local 564, of the Eastern Conference of Teamsters. Good faith alone, unfortunately, is not a defense in situations of this kind. It is not a defense to recognize a minority union, even in the belief that it is or would be a majority union, International Ladies' Garment Workers Union, AFL-CIO I am not convinced that the term "relocate" is a "word of art" and, in any event, use it here merely to show that the Company was moving from one location in Pennsylvania to another, a literal definition of the term regardless of whether the employees, or some of them, did or might have moved along with the Company. [Bernard-Altmann Texas Corp.] v. N.LR.B., 366 U.S. 731, 736 (1961). It is not a defense that the Company may have believed that the Greenville facility was an "accretion" to the Bristol facility, if it in fact was not. And it is not a defense that the Company may have relied upon advice from officials of an employer association or the Eastern Conference of Teamsters in negotiating and executing the new agreement. Thus, it is a fact that the new contract was executed before a single employee was hired for Greenville. It is also a fact that no employee from Bristol ever began work at Greenville. 6 These facts alone suffice to establish a prima facie case under Bernard-Alhmann, supra. The Company's actions in this case would be much more difficult to assess vis-a-vis the Act's unfair labor practice provisions had it relocated only its warehousing operations and had it continued to recognize Local 470 at the new location for the warehousemen. I suspect that under Board law, as illustrated by cases such as General Cinema Corpo- ration and Its Wholly Owned Subsidiary, Gentilly Woods Cinema, Inc., 214 NLRB 1074 (1974), enfd. in relevant part 526 F.2d 427 (5th Cir. 1976), and Hudson Berlind Corpora- tion, 203 NLRB 421 (1973), enfd. 494 F.2d 1200 (2d Cir. 1976), the Company would have violated the Act even in that hypothetical situation. But here-the contract being with a different union, albeit a constituent member of the Eastern Conference of Teamsters, and covering a different unit, for it includes truckdrivers--even the surface appeal of a company continuing to recognize an incumbent for the same unit at a new location is lacking. These critical differences between the hypothetical situation posed above and the facts here also serve to make unavailing the de- fenses advanced by Respondent Company and to render its reliance on various Board and court cases misplaced. Thus, the First Circuit's decision in N.L.R B. v. Die Sup- ply Corporation, 393 F.2d 462 (Ist Cir. 1969), involved a move of only 4 miles and was preceded by the company's refusal to bargain with an incumbent union about the move and its effects, including a deliberate concealment by the company of its plans to move. Furthermore, the court agreed with the Board that the operations at the two loca- tions "were substantially the same." Similarly, in The Coop- er Thermometer Company, 160 NLRB 1902 (1966), enfd. in relevant part 376 F.2d 684 (2d Cir. 1967), the company had first unlawfully refused to bargain about a contemplated move, a majority of employees at the old location sought to transfer to the new one, and the new plant was "no more than a continuance" of the old plant (id. at 1915). All other cases cited by Respondent are equally distinguishable from the instant situation. Some involved "runaway" shops, with the move being specifically for the purpose of avoiding the obligation to bargain; others were similar to cases such as Die Supply and Cooper Thermometer; another involved the subcontracting of unit work without bargaining. The fact that the addendum to the contract between Re- spondent Company and Local 470 provided that any newly opened warehouse would be represented by Local 470, or any other local with jurisdiction over any such new loca- 6 Ghaznavi's own testimony was that only a few of the Bnstol employees evinced an) real interest in transferring to Greenville. 604 BRISTOL CONSOLIDATORS, INC. tion, also provides no defense to Respondent Company's recognition of Respondent Local 564. Although there is nothing invalid per se about such clauses, the Board has made clear that their implementation is only lawful when "the employees affected are not denied their right to have a say in the selection of their bargaining representative." Houston Division of the Kroger Co., 219 NLRB 388, 399 (1975). See also Woolwich, Inc., 185 NLRB 783, 784 (1970); Schreiber Trucking Companv. Inc., 148 NLRB 697, 703 (1964). The Company's argument that the Greenville operation constituted an accretion has no legal merit. In the first place, there was nothing for the new warehouse to accrete to, for it did not open until the Bristol warehouse had closed. Secondly, the new operation, as noted above, in- cluded truckdrivers, and no truckdrivers had been em- ployed by Bristol Consolidators at the Bristol warehouse. Nor are there present here any of the kind of considera- tions (and there is no need to enumerate them) the Board looks to in determining whether or not a new operation is an accretion to an existing one. All things considered, I am impelled to find that the Respondent Company violated Section 8(a)(1), (2), and (3) of the Act, despite its "good faith," and that Respondent Union, by accepting such recognition and because the con- tract contained a union-security provision, violated Section 8(bXIXA) and (2) of the Act. Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSION OF LAW Respondent Employer and Respondent Union, by exe- cuting a contract containing a union-security provision covering the Employer's facility at Greenville, Pennsylva- nia, at a time when no employees had been hired and said labor organization did not represent a majority of the em- ployees, have engaged in unfair labor practices within the meaning of Section 8(aX 1), (2), and (3) on the part of Re- spondent Employer and Section 8(b)(IXA) and (2) on the part of Respondent Union, affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In view of the fact that the provisions of the unlawfully executed agreement contained a mandatory union-security clause, Respondents will be required jointly and severally to reimburse all present and former employees, except those excluded below, for all initiation fees, dues, or other moneys paid or checked off pursuant to the unlawful union-security agreement with interest thereon to be com- puted as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). Reimbursement, however, will not ex- tend to any such employees who may have voluntarily joined and been members of Respondent Local 564 prior to their employment by Respondent Company. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER7 A. The Respondent, Bristol Consolidators, Inc., Green- ville, Pennsylvania, its officers, agents, successors, and as- signs, shall: I. Cease and desist from: (a) Recognizing or dealing with Respondent Local 564 as the bargaining representative of its employees unless and until Local 654 has been certified by the Board as the exclusive bargaining representative of such employees. (b) Assisting Respondent Local 564 in any other man- ner to become the collective-bargaining representative of its employees. (c) Giving effect to, performing, or in any way enforcing the collective-bargaining agreement with Local 564 entered into on or about December 14, 1977, or to any modifica- tion, extension, renewal, or supplement thereto; provided, however, that nothing herein shall require Respondent Em- ployer to vary or abandon any wage, hour, seniority, or other substantive feature of its relations with its employees which have been established in the performance of any such agreement or to prejudice the assertion by such em- ployees of any rights they may have thereunder. (d) Encouraging membership in, or activities on behalf of, Respondent Local 564 by discriminating against its em- ployees with respect to their hire, tenure, and terms and conditions of employment. (e) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Withdraw and withhold all recognition from Re- spondent Local 564 as the representative of its employees for the purposes of collective bargaining unless and until said labor organization shall have been duly certified by the Board as the exclusive representative of such employ- ees. (b) Jointly and severally with Respondent Local 564, reimburse each of its present and former employees, except those who joined said labor organization prior to their em- ployment by Respondent Company at Greenville, Pennsyl- vania, for any and all initiation fees, dues, and other moneys, if any, paid by or withheld from them pursuant to the terms of the aforesaid collective-bargaining agreement. (c) Post at its Greenville, Pennsylvania, warehouse cop- ies of the attached notice marked "Appendix A." s Copies In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become Its findings. conclusions, and Order. and all objections thereto shall be deemed waived for all purposes s In the event that this Order is enforced hb a judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National labor Relations Board" shall read "Posted Pursuant to a Judg- Continued 605 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of said notice, on forms provided by the Regional Director for Region 6, shall, after being duly signed by Respondent Company's representative, be posted immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. B. The Respondent, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, General Teamsters Union Local No. 564, its offi- cers, representatives, and agents, shall: 1. Cease and desist from: (a) Acting as the exclusive bargaining representative of the Respondent Company's Greenville, Pennsylvania, em- ployees for the purpose of collective bargaining unless and until it shall have been certified by the Board as the exclu- sive representative of said employees. (b) Giving any force or effect to the collective-bargain- ing agreement with Respondent Company executed on or about December 14, 1977, or to any modification, exten- sion, renewal, or supplement thereto. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Jointly and severally with Respondent Company, reimburse each of Respondent Company's present and for- mer employees at the Greenville, Pennsylvania, warehouse, except those who joined Respondent Local 564 prior to their employment by Respondent Company, for any and all initiation fees, dues, and other moneys, if any, paid by or withheld from them pursuant to the terms of the afore- said collective-bargaining agreement. (b) Post at its offices or meeting halls copies of the at- tached notice marked "Appendix B."9 Copies of said no- tice, provided by the Regional Director for Region 6, shall, after being duly signed by Respondent Union's representa- tive, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 9 See fn. 8. supra. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT recognize or deal with Local 564 of the Teamsters as the representative of our employees un- less and until it has been certified by the National Labor Relations Board as the exclusive bargaining representative of our employees. WE WILL NOT give any force or effect to the Decem- ber 14, 1977, agreement made with Local 564 or to any renewal, extension, modification, or supplement thereto. WE WILL NOT assist Local 564 in any other manner to become the representative of our employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL withdraw and withhold all recognition from Respondent Local 564 as the representative of our employees for the purposes of collective bargain- ing unless and until the said labor organization shall have been duly certified by the Board as the exclusive representative of such employees. WE WILL. jointly and severally with said Local 564, reimburse all present and former employees, except those who joined Local 564 prior to their employment at our Greenville warehouse, for any initiation fees, dues, or other moneys paid or withheld from them pursuant to the aforesaid agreement or to any agree- ment superseding it. BRISTOL CONSOLIDATORS. INC 606