General Teamster Local Union 126

406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Teamster , Warehouse and Dairy Employees, Local Union 126 p d Inland Trucking Co and Wesley Medahn Co-Partners d/b/a Oshkosh Ready-Mix Co., Cook & Brown Lime Co , and Inland Trucking Co and Wesley Medahn Co-Partners d/b/a Waupun Ready-Mix Case 30-CB-204 June 4 1969 DECISION AND ORDER B5 MEMBERS FANNI\G BROW' A\D LAGORIA On February 7 1969 Trial Examiner Frederick U Reel issued his Decision in the above-entitled proceeding finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed as set forth in the attached Trial Examiner's Decision Thereafter, Charging Parties Oshkosh Ready-Mix Co and Waupun Ready-Mix' filed exceptions to the Trial Examiners Decision and Respondent filed cross-exceptions and a brief in support of the Trial Examiners Decision A reply brief was also filed by Charging Parties Oshkosh Ready-Mix Co and Waupun Ready-Mix Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel The Board has reviewed the rulings of the Trial Examiner made at the hearing and tends that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Trial Examiners Decision, and the entire record in this case including the exceptions, cross-exceptions and briefs and hereby adopts the findings conclusions and recommendations of the Trial Examiner 1 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the complaint herein be and it hereby is dismissed in its entirety 'While this matter was pending before the Board one of the Charging Parties Cook & Brown Lime Co filed a motion to withdraw as charging party No opposition to this Motion has been filed with the Board Accordingly the motion is hereby granted 'As it is unnecessary to our decision herein we do not pass on the Trial Examiner s analysis of Dolly Madison Industries Inc Richmond Dairy Division Case 5 CA 3475 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U RErt Trial Examiner This proceeding heard at Fond du Lac, Wisconsin , on December 3 and 4, 1968' pursuant to a charge filed the preceding May 2 and a complaint issued October 29 2 presents questions arising out of the efforts of the Respondent in the course of bargaining for new contracts covering employees of the Charging Parties to obtain wage rates equivalent to those paid similar employees in another locality Upon the entire record ' including my obseivation of the witnesses and after due consideration of the briefs filed by each of the parties, I make the following FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYERS AND TFIE LABOR ORGANIZATION INVOLVED The Charging Parties in this proceeding are each engaged in the sale and delivery by truck of ready-mixed concrete to building and construction sites and each of them annually receives materials valued in excess of $50,000 which originate outside the State of Wisconsin, in which these concerns conduct their businesses Each of them is therefore an employer engaged in commerce within the meaning of the Act They will be referred to collectively herein as `the Employers Respondent, herein called the Union is a labor organization within the meaning of Section 2(5) of the Act At all times material herein each of the Employers recognized the Union as the statutory bargaining representative for an appropriate unit of that Employer's employees II THE ALLEGED UNFAIR LABOR PRACTICES In 1965 each of the Employers had executed a contract with the Union to expire in the spring of 1968 Late in March 1968 bargaining negotiations commenced for new contracts From the outset of these negotiations the union representative Don Wetzel emphasized that a key union demand was to increase the wage rates in the new contracts to the point where they equaled the rates paid for similar work in the neighboring cities of Appleton Neenah and Menasha where a sister local of the Union represented the employees The question presented by this litigation is whether the Union in pursuing this aim violated Section 8(bX3) of the Act At the time of the bargaining sessions in this case the wage rate for comparable employees in the Appleton area was 22 cents per hour higher than the ratt, in Oshkosh (home of two of the Employers) and 47 cents per hour higher than in Waupun (home of the third) The Appleton employees were represented by Local 563 of the Teamsters while the Union has represented employees in Oshkosh Fond du Lac, and Waupun and other locals of the Teamsters represented employees in Sheboygan and in Green Bay 'All dates herein refer to the year 1968 except where otherwise specifically noted `Throughout the hearing this case was consolidated with Case 30-CB-217 involving the same Respondent but a different Charging Party and presenting issues similar to those raised here At the conclusion of the hearing upon the motion of Charging Party in that case and in the absence of opposition from the other parties thereto I dismissed the complaint in Case 30-CB-217 'Pursuant to leave granted at the close of the hearing the Charging Parties submitted their proposed Exhibit ; after the hearing closed That exhibit is hereby received in evidence over the objection of Respondent going to relevancy 176 NLRB No 52 GENERAL TEAMSTER , LOCAL UNION 126 Although the Union's demand for parity with Appleton, and the Employers' resistance to that demand, was a constant stumbling block during the negotiations, the specific clause attacked in this litigation was not presented to the Employers until July 10, after several bargaining sessions. The clause in question reads as follows: In the event the Construction Materials Suppliers Labor Agreement entered into between the Fox Valley Construction Materials Suppliers Association or its successors, and General Drivers and Dairy Employees Union Local No. 563, I.B.T., provides for a wage rate, on or after October 1, 1970, for ready mixed concrete truck drivers, in excess of that provided in . . . this Section, then the wage rate to be paid to drivers, under this Agreement, on or after October 1, 1970, shall be the same as that provided for under the said Fox Valley Construction Materials Suppliers Labor Agreement. General Counsel contends that the Union insisted that this clause be included in any contract it reached, and that this insistence on what General Counsel contends is a nonmandatory subject of bargaining violated the Act. I find, however, that the Union did not insist on this clause, and that, even if it had so insisted, such conduct would not have violated the Act. 1. So far as this record shows, the clause quoted above first appeared late in June in a contract executed by the Sheboygan local of the Teamsters with a Sheboygan company. Wetzel learned of this clause at that time, and promptly used it in his then pending negotiations in Fond du Lac and Oshkosh.4 He was successful in getting Lakeview Sand and Gravel Co., a Fond du Lac concern, to agree to this language early in July, and soon thereafter, on July 10, presented it to the Employers here involved. As previously noted, however, the parties had been in negotiations for several months, and the Union's demand for parity with the Appleton rates had been a subject of discussion before this language was presented. During the negotiations preceding the presentation of the clause in question, the Union had scaled down its original wage demands. By mid-April the Union's demand was for an increase of 80 cents per hour the first year, 55 cents the second, and 50 cents the third, or a total increase of $1.85 over the 3 years. Wetzel testified, and I credit his testimony, that this demand was intended to encompass the 22 cents needed to achieve parity with Appleton plus what he regarded as a fair increase in rates, based on a recently executed contract by another union, the Laborers, which called for $1.55 over 3 years. The contract which the Union executed with Lakeview in Fond du Lac calls for an increase of $1.55 over 3 years (45 cents the first year, 50 the second, and 60 the third) plus the parity clause quoted above. Describing his negotiations with Lakeview at the end of June, Wetzel testified: We were still sitting at the point of $1.85 and the employer and myself were arguing to the point of the Laborers only getting $1.55. I told him we had to have the 22 cents differential, so I gave them the parity clause as an alternative. They could either give us the 22 cents which we were demanding, or they could give us the $1.55 and parity. Then they would have until the end of the agreement to find out if there was a wage 'Somewhat similar language , providing for immediate application of Appleton rates upon a contract being reached in that area, had been used in a contract executed the preceding April between the Green Bay local of the Teamsters and a Green Bay employer, but Wetzel had no knowledge of this, He never presented the Green Bay language to the Employers. 407 increase or prepare for it, and this would pick us up into the area which our people wanted. Armed with the Lakeview contract, Wetzel then resumed negotiations in Oshkosh. He testified, and I credit his testimony, that he did not insist on the Lakeview contract with the parity clause, but offered the Employers that alternative or the $1.85 over 3 years. Referring to a proposal advanced by the Employers' attorney, Mueller, that the contract provide for a lowering of rates, as well as an increase, depending on what settlement was reached in the Appleton negotiation, Wetzel testified: Q. (By Mr. Levy) What position, if any, did you take about the manner in which the Oshkosh area wages could be raised to Appleton scale? A. Well, Mr. Mueller was - we took the position we wanted the 22 cents plus $1.55 Mr. Mueller then said why don't we go for what he called an open-end; he says, if it's higher we'll go higher, if it's lower we'll go lower. I said, - it would fluctuate up or down, more or less, he gave me the impression he was willing to go along with this aspect. I asked Mr. Mueller if we went to something like this was the $1.55 there for our people, and he sort of, like, smiled and looked at me, and I didn't get what I considered a definite answer. So, then the next thing I threw at the company, I says, "Why don't we just forget about parity, if this is your big problem, and just give us $1.85 and we won't have to worry about anything, then you won't have any language which you feel is illegal, or anything else, we'll just get $1.85?" Q. (By Mr. Levy) And what was his response? A. He sort of laughed and said "No." Wetzel admitted that in dealing with another Fond du Lac employer, Ready-Mix Concrete, Inc., he had insisted on the Lakeview contract, which contained the parity clause. I credit his testimony that in Oshkosh, however, he was prepared to accept "either the parity clause, or $1.85, or, as a minimum, $1.77," or the "parity ... up or down" as proposed by Mueller. (The reason Wetzel took a different position in the Fond du Lac Ready-Mix situation was that he thought he had reached a firm agreement there adopting the Lakeview language.) To be sure, the negotiations between the parties led to both a lockout and a strike, and the Union's insistence on obtaining some form of parity with Appleton rates was a major cause of those events, although the parties were also apart on other matters and were in disagreement over wage rates quite apart from the parity issue. I find, however, that the Union did not insist on the parity clause quoted above as a condition to entering into any contract but merely proposed it as one alternative means of achieving the wage parity with Appleton rates. 2. Even if the Union had in fact insisted on the parity clause, I would find no violation in its having done so. Manifestly, the parity clause dealt with wage rates, a mandatory subject of bargaining upon which the Union could insist to and beyond the point of impasse. As the Supreme Court noted in U.M.W. v. Pennington, 381 U.S. 657, 664, 665, fn. 1, a union may lawfully seek to obtain the same wage rates from all the employers in a given industry. General Counsel argues that the clause in this case is outside the foregoing general rule because it would bind the parties to wage rates set by others. This may be a reason for the Employers' refusal to accept the clause, but does not change its basic character as a wage demand. Indeed it is not unusual for collective agreements to 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provide for a fluctuating wage structure to be affected by the Cost of Living Index published by the United States Department of Labor. The clause at issue would in effect give such a wage-setting power not to the Government but to the Appleton local and Appleton employers acting jointly. Finally, the bargaining history of the parties to this case establishes that the Oshkosh rates normally were set after the rates were agreed to in Fond du Lac, and that the Oshkosh rates conformed to those in Fond du Lac. In the instant case, however, a Fond du Lac company had already accepted the questioned clause before it was presented to the Oshkosh employers. Hence these latter employers were really asked to do no more than accept the Fond du Lac rates which they had customarily done. To be sure, one of those rates embodies the Appleton parity clause, but when this became operative it would be the Fond du Lac rate. I see no violation in urging Oshkosh employers to accept, as they had in the past, rates acceptable in Fond du Lac. For that matter I would see no violation if the Union asked to have the Oshkosh employers abandon their adherence to Fond du Lac rates and substitute a standard paid in Appleton or Chicago or New York. Insistence on such demands may be unwise, and the Employer is under no obligation to yield to wage demands he considers excessive, but the fact that the rate in question is determined in another locality, and is the product of forces other than those immediately involved in the negotiations does not render it any the less a term or condition of employment upon which either party may insist. I find nothing to the contrary in U.M. W. v. Pennington , 381 U.S. 657. To be sure, in that case the Supreme Court observed (381 U.S. at 666): But there is nothing in the labor policy indicating that the union and the employers in one bargaining unit are free to bargain about the wages, hours and working conditions of other bargaining units or to attempt to settle these matters for the entire industry. On the contrary, the duty to bargain unit by unit leads to a quite different conclusion. The union's obligation to its members would seem best served if the union retained the ability to respond to each bargaining situation as the individual circumstances might warrant, without being strait jacketed by some prior agreement with the favored employers. The Court noted the several Board decisions declaring that an employer may not condition the signing of a collective-bargaining agreement on the union's organization of other employers in the industry' and commented (381 U.S. at 667): Permitting insistence on an agreement by the union to attempt to impose a similar contract on other employers would likewise seem to impose a restraining influence on the extent of collective bargaining, for the union could avoid impasse only by surrendering its freedom to act in its own interest vis-a-vis other employers, something it will be unwilling to do in many instances. Once again the employer's interest is a competitive interest rather than an interest in regulating its own labor relations, and the effect on the union of such an agreement would be to limit the free exercise of the employees' right to engage in concerted activities according to their own views of their self-interest. In 'American Range Lines. Inc. 13 NLRB 139, 147, Samuel Youlin. 22 NLRB 879, 885 , Newton Chevrolet . Inc., 37 NLRB 334, 341. sum, we cannot conclude that the national labor policy provides any support for such agreements. While the Court' s language would seem to condemn agreements under which a union undertook to impose on other employers the terms reached in a particular contract, it does not deal with an agreement that terms reached elsewhere should be imposed on the contract being executed. The difference is significant. In the situation the Court condemns the subsequent bargaining is straitjacketed by the terms already reached, or in the Court's words the union is "surrendering its freedom to act in its own interest vis-a-vis other employers ...." In the instant situation the subsequent bargaining is free and competitive. Moreover, in the instant case the subsequent bargaining which would affect the terms of the contract being negotiated was not to be done by either of the parties to the instant contract. In Dolly Madison Industries, Inc., Richmond Dairy Division, Case 5-CA-3475, now pending before the Board on exceptions to the Trial Examiner's Decision, Local 592 of the Teamsters and the General Counsel attack as violative of Section 8(a)(5) company insistence on a proposal that if the union made a contract more favorable to a competitor with respect to rates of pay, hours of labor, and other conditions of employment, such "more favorable" terms (from the employer's viewpoint) "shall immediately and automatically" become applicable as amendments to the contract there being negotiated. Trial Examiner Blake, relying on Pennington , held insistence on such a clause violative of Section 8(a)(5). Assuming that her views are sustained, the case seems completely distinguishable from that before us for one of the reasons just indicated with respect to Pennington, namely that in Dolly Madison the contract would prevent the contracting union from having the full freedom of negotiation it should enjoy with other employers, whereas here the Union is not itself involved in the subsequent negotiations, and the parties to the subsequent negotiations (the Appleton employers and the Appleton local) are free to bargain in their respective interests without concern for the impact that their eventual bargain may have on the Oshkosh rates.' Likewise distinguishable are the authorities relied on by General Counsel and by the Charging Parties. Thus, Southern California District Council, 144 NLRB 978, involved an attempt to apply terms of the contract there being negotiated to employees outside the bargaining unit. Metropolitan District Council of Philadelphia, 137 NLRB 1583, concerned an attempt to force an employee to adopt a "package" which included nonmandatory subjects of bargaining, and which was to be administered by an outside source. Here the only issue involved was wages, a mandatory subject of bargaining, and the employers would not have yielded administration of the contract to an outside source, but only the settling of one of its terms. Cases dealing with performance bonds or other nonmandatory subjects of bargaining likewise have no relevance here. Finally, cases holding that an employer may not be compelled to bargain with a minority union, 'The other distinction I find from Pennington is applicable to both the instant case and to Dolly Madison, namely that in Pennington the terms for the subsequent bargaining were fixed by the first bargain, whereas in this case and in Dolly Madison the initial bargaining was affected by, but did not itself affect, the later bargaining Affirmance of the Trial Examiner in Dolly Madison would not compel reversal here for the reason stated in the text above; reversal of her decision would seem to lead to affirmance here. GENERAL TEAMSTER, LOCAL UNION 126 and cases holding that he must be free of pressure in choosing his own bargaining representatives , miss the mark. The Employers here are not being asked to bargain with the Appleton local or to let the Appleton employers be their bargaining representative . The Union's demand is for a specific term of the contract to be established by an outside event. I therefore conclude that even if the Union here had insisted on the parity clause, it would not have violated the Act in so doing . The Employers, of course, remain ;ree to resist this or any other economic demand. CONCLUSIONS OF LAW 409 1. Insistence on the parity clause set forth in the complaint would not violate the Act. 2. The Union did not insist on the parity clause or on the acceptance of any contract without affording the Employers an opportunity to bargain thereover. RECOMMENDED ORDER The complaint should be, and hereby is, dismissed.