T-K City Disposal, Inc.

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD T-K City Disposal, Inc. and Bobby G. Robinson. Case 13-CA-9958 May 21, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On January 29, 1971, Trial Examiner Max Rosen- berg issued his Decision in the above-entitled proceed- ing, finding that Respondent had not engaged in the alleged unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General filed exceptions to the Trial Examiner's Decision with supporting brief and the Respondent filed a brief in opposition to General Counsel's excep- tions. 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 powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions,' and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the com- plaint herein be, and it hereby is, dismissed in its en- tirety. ' We note and correct the following minor error in that section of the Trial Examiner's Decision entitled "Findings of Fact and Conclusions" which in no way affects the result in this case The record does not support the Trial Examiner's finding that Rogers and Lindley were among those who approached Tewes at the picket line on the morning of July 2 ' These findings and conclusions are based, in part, upon the Trial Ex- aminer's credibility findings, to which the General Counsel excepts It is the Board's established policy, however, not to overrule a Trial Examiner's resolutions with respect to credibility unless, as is not the case here, the preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd 188F 2d 362 (C A 3) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAx ROSENBERG, Trial Examiner: With all parties repre- sented, this case was tried before me in Chicago, Illinois, on December 14, 1970, on a complaint filed by the General Counsel of the National Labor Relations Board and an an- swer filed thereto by T-K City Disposal, Inc., herein called the Respondent.' At issue is whether Respondent violated Section 8(a)(1) and/or (3) of the National Labor Relations Act, as amended, by refusing to reemploy former employees Bobby G. Robinson, Melvin Walters, William Rogers, and Dexter Lindley on July 6, 1970. Briefs have been received from the General Counsel and the Respondent which have been duly considered. Upon the entire record made in this proceeding and my observation of the witnesses who testified on the stand, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS I THE RESPONDENT'S BUSINESS Respondent, an Illionis corporation with its place of busi- ness in Waukegan, Illinois, is engaged in the business of garbage collection and disposal. During the annual period material to this proceeding, Respondent furnished garbage collection and disposal services to Waukegan, Illinois, valued in excess of $200,000, which municipality, annually, pur- chased goods and materials valued in excess of $100,000, of which goods and materials valued in excess of $50,000 were transported to said municipality directly from States of the United States other than the State of Illinois. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commmerce within the meaning of Sec- tion 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Chauffeurs, Teamsters and Helpers Union, Local No. 301, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called the Union, is admittedly a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES The General Counsel contends that Respondent violated Section 8(a)(1) and/or (3) of the Act when it refused to reemploy Bobby G. Robinson, Melvin Walters, William Rog- ers, and Dexter Lindley on July 6, 1970, because they en- gaged in protected, concerted activities.' Respondent asserts that it denied reemployment rights to these men solely on the ground that they precipitated and participated in an un- protected, "wildcat" strike at its operations on July 1. The facts giving rise to this litigation are not essentially in dispute and I find them to be as follows. For some time prior to June 30, Respondent and other scavenger companies in the Lake-McHenry counties of Il- linois performed garbage collection services for Waukegan under contract with that entity. During this period, Respond- ent and its companions were members of an employer- association which bargain collectively with the Union over labor agreements covering their employees, the latest of which expired on June 30. Prior to the terminal date, the parties commenced negotiations for a new compact. Henry J. Tewes, Jr., Respondent's president, who attended only a few of these sessions, requested that Robert B. Barnes, the Un- ion's secretary-treasurer and chief negotiator, communicate with the former as soon as an agreement was ironed out. On June 30 the association and the Union reached a con- sensus on another contract. On the evening of June 30 the Union called a meeting of its members to vote on the accept- ance or rejection of the proposed agreement. This gathering ' The complaint, which issued on September 30, 1970, is based upon charges filed on July 13, 1970, and served July 14, 1970 ' Unless otherwise indicated, all dates fall in 1970 190 NLRB No. 96 T-K CITY DISPOSAL 463 was attended by 13 of Respondent's employees, including alleged discriminatees Bobby G. Robinson, Melvin Walters, William Rogers, and Dexter Lindley. Barnes opened the meeting by reading the terms of the negotiated contract. When he concluded this chore, Walters obtained the floor and inquired whether a cost-of-living clause could be added to the compact. Barnes responded that "this is their [the association's] final offer, and you either accept it or reject it." Dexter Lindley and William Rogers registered some undis- closed form of opposition to the agreement. The members were then polled. The tally of ballots revealed that 15 had voted to accept the contract, while 13 employees of Respond- ent voted to reject it. After the ballots were counted, Robin- son, who was the union steward at Respondent's installation, stood up and announced that "We ain't going to work under this contract." At the conclusion of the union meeting, Barnes telephoned Tewes to report that "You've got a contract, you will be working tomorrow. We had a little problem selling it to the men, but you have a contract and the men will be working tomorrow morning." During this conversation, Barnes in- dicated that the "problem" stemmed from the opposition of Respondent's employees to certain terms of the proposed pact, but Barnes did not mention the issues which had been a thorn of contention at the union convocation, nor did he disclose the identity of Respondent's employees who raised those issues. Upon receiving this intelligence, Tewes re- marked that "That's all I care about is we're going to work in the morning."3 The contract, as ratified, was programmed to run for a period of 16 months. On the morning of July 1, 21 of Respondent's 24 employees engaged in a "wild-cat" strike. The parties stipulated that this work stoppage constituted an unprotected activity within the meaning of Section 7 of the Act and that the strikers could have lawfully been terminated for engaging therein.' With the inception of the strike on July 1, Barnes appeared on the scene. In the presence of Tewes, Barnes engaged in a heated debate with Robinson during which the latter protested that Respondent's employees "got a bad deal" in the contract negotiations because of the lack of a cost-of-living bonus in the agreement. Robinson also complained that he, as the union steward for Respondent's work complement, should have been appointed to the Union's negotiating team. Barnes exclaimed, "For Christ sake, get these boys back to work. We got a contract. We always live by our contract. It was ac- cepted and there is no reason why you should do this." After ' In this connection, the parties stipulated and I find that, pursuant to their agreement with the city of Waukegan, the members of the employer- association pledged that the municipality would be privileged to assume control over their equipment and perform the garbage collection duties in the event that the association, or any member, defaulted in performance for a period of more than 3 days, and that the local government would be entitled to abrogate the contract if the default persisted for more than 30 days ' By virtue of a stipulation accompanying the submission of briefs to me, the General Counsel and Respondent agreed that the collective-bargaining agreement between Respondent and the Union which expired on June 20, and the collective-bargaining agreement which was ratified by the Union membership on June 30, 1970, and signed on or about July 15, 1970, which was retroactive to July 1, 1970, both provided that It is understood and agreed by both parties to this Agreement that all individuals, members of the respective contracting parties, shall be bound by, and shall comply with the terms and provisions of this Agreement, as jointly agreed upon Should any controversy arise not provided for in these Articles, it shall be submitted to a committee of five (5) for arbitration Two (2) to be selected by the Union, and two (2) by the Employer, and the fifth (5th) by the first (4) During such time as the matter is pending, there shall be no lockout or strike The decision of said committee to be final further discussion, Barnes added that "I thought we had this settled from the wildcat strike from last night, and after talking to him [Robinson] at the Union meeting, I thought everything was settled, and they were going back to work, and forget it because I told them after sixteen months, we got another contract coming and forget it." Barnes went on to advise Robinson that "I thought we had this settled from last night. I told you fellows last night, don't pull no wildcat strike again, because you have got a contract now. You've got to go to work, and I thought this thing was all settled, and they was going to go on to work the next morning." Robinson retorted that he had "Union business today" and angrily announced that he intended to consult with an attorney about the matter. Barnes replied, "As of now, I am relieving you as a steward, because four weeks ago you pulled a wildcat strike, last night you gave us problems at the meeting and you talked about it last night, and I thought I had settled that you guys was going to work today.... Now, you have got a strike and I am relieving you as steward. It's your problem to get these men back to work and get them working, as steward." Tewes testified and I find that, during the colloquy between Barnes and Robinson, which he overheard, he learned for the first time that Robinson, Walters, Rogers and Lindley were the employees who had actively opposed certain of the contract provisions on the previous evening and who had triggered the unprotected work stoppage on July 1. After Robinson departed, Tewes, concerned about the pe- nalties which lay in store under the service contract with Waukegan if the abortive work stoppage continued, asked Barnes "Where do we go from here? I haven't got any men. " Barnes thereupon contacted the Union's area Joint Council and its attorney for consultation, after which Barnes informed Tewes that the latter possessed the right to dis- charge or rehire any employee it chose because of his engage- ment in the unprotected strike. Upon receiving this advice, Tewes dispatched a telegram on the afternoon of July 1 to each of his employees who had not reported for work on that day. In this telegram he notified the men that Respondent would unconditionally rehire all strikers who appeared for duty on the morning of July 2. He also apprised them that those who decided not to return to their jobs would be ter- minated forthwith. A similar message was conveyed to the Union. On the morning of July 2, two employees accepted Re- spondent's offer to return to work that day. However, 15 other employees, including the discriminatees, declined the invitation. Robinson, in consort with Walters, Rogers, and Lindley, as well as the other strikers, approached Tewes on the picket line that morning. Robinson told Tewes "that the men were very unhappy with the contact. He [Tewes] said there's nothing he can do about the contract because the contract is binding.... And I asked him if we could negoti- ate a contract with him, separate from the other garbage companies, and he says, no, as far as he's concerned, this is binding." Robinson also proposed that Respondent remove itself from the association-wide unit and bargain with its employees independently. To this suggestion, Tewes replied that it would be unlawful for him to do so. On the afternoon of July 2 Tewes learned from the "grape- vine" that the striking employees would return to work on the following morning. That evening he met with his superin- tendent, Carl Bech, and together they culled the employment rolls to determine which of those employees they would rehire on July 3. At this sessibn, Tewes and Bech decided not to rehire six employees, including the alleged discriminatees Robinson, Walters, Rogers, and Lindley. According to Tewes, his reasons for not rehiring these men were manifold, namely, because "they weren't as good a workers and they 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD didn't show up as much. They had been active in the start of a wildcat strike a month before that, and they were active in this one, that's for sure. Robinson was the steward for us, and that's supposed to keep the' men working, not take them off on strike." When queried by the General Counsel whether the fact that the alleged discriminatees had opposed the proposed labor contract at the union meeting on June 30, Tewes replied, "That was one of the reasons, also. I said trouble with the Union and trouble with the strike." The following morning, July 3, the remaining strikers ap- peared at the garage where they were informed by Tewes and Bech that they had all been discharged on July 2, and that Respondent had determined to rehire nine of the remaining employees as new employees. Later that afternoon, the 15 strikers sent a telegram to Respondent stating that they un- conditionally were offering to return to work. On July 6, Respondent rehired 9 or 10 strikers as new employees. Robin- son, Walters, Rogers, and Lindley were not among this group, and this happenstance has triggered this litigation. The General Counsel concedes that the strike in which the four alleged discriminatees participated was unprotected within the purview of the Statute and that Respondent could have lawfully terminated them for engaging in this activity. However, it is his thesis that Respondent discharged these individuals, not because they precipitated or participated in an unauthorized work stoppage, but because they were penal- ized for engaging in protected, concerted activities, i e., for opposing the adoption of the collective-bargaining agreement on the evening of June 30. I find no merit in this contention. It is undisputed that Tewes did not learn the identity of the opposition faction until the morning of July 1, and his only concern was whether he had a contract and whether he would have a full work complement to fulfill his service agreement with Waukegan. While Tewes listed as one of the bases for refusing to rehire Robinson, Walters, Rogers, and Lindley the fact that they had opposed the ratification of the collective agreement on June 30, I am convinced that this basis was in reality bottomed on the fact that the opposition of the men caused the unauthorized strike. I am fortified in this conclu- sion by the circumstance that, on July 1, and again on July 2, Tewes implored all the strikers, including Robinson, Wal- ters, Rogers, and Lindley, to return to work without any strings attached. It seems obvious that the "problems" which arose at the union meeting on June 30 did not, in light of Tewes statements and conduct on July 1 and 2, form the predicate for his ultimate decison to terminate the four men on July 6 In N.L.R.B. v Draper Corporation,' the court observed: It is perfectly clear not only that the "wild cat" strike is a particularly harmful and demoralizing form of indus- trial strife and unrest, the necessary effect of which is to burden and obstruct commerce, but also that it is neces- sarily destructive of that collective bargaining which it is the purpose of the act to promote. Even though the majority of the employees in an industry may have se- lected their bargaining agent and the agent may have been recognized by the employer, there can be no effec- tive bargaining if small groups of employees are at lib- erty to ignore the bargaining agency thus set up, take particular matters into their own hands and deal inde- pendently with the employer. The whole purpose of the act is to give to the employees as a whole, through action of a majority, the right to bargain with the employer with respect to such matters as wages, hours and condi- tions of work.... A Union selected as bargaining agent is thus made the exclusive representative of all the em- ployees for the purpose of collective bargaining.... The employees must act through the voice of the majority or the bargaining agent chosen by the majority. Minority groups must acquiesce in the action of the majority and the bargaining agent they have chosen; and, just as a minority has no right to enter into separate bargaining arrangements with the employer, so it has no right to take independent action to interfere with the course of bargaining which is being carried on by the duly author- ized bargaining agent chosen by the majority. The proviso to section 9 [of the Act], preserving to individu- als and groups of employees the right to present griev- ances to the employer, negatives by necessary inference the right on their part to call strikes for the purpose of influencing the bargaining being carried on by the chosen representatives of all the employees. In short, Tewes was aware that Robinson had triggered a "wild cat" strike about a month prior to the ratification of the new agreement on June 30. He also learned that Robinson and his cohorts had precipitated the second "wild-cat" work stoppage on July 1 after Robinson had announced at the union meeting the preceding night that "We ain't going to work under this contract " I accordingly find that Tewes' selection of Robinson, Walters, Rogers, and Lindley for ter- mination on July 3 was motivated solely by his conviction that these men had called the unauthorized strike on July 1. I therefore conclude that, by so doing, Respondent did not offend the terms of either Section 8(a)(1) or (3) of the Act.' CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Bobby G. Robinson, Melvin Walters, William Rogers, and Dexter Lindley on July 6, 1970, Re- spondent did not engage in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. RECOMMENDED ORDER It is hereby recommended that the complaint herein be, and it hereby is, dismissed in its entirety. ' 145 F 2d 199, 203 (C A 4) See also Harnischfeger Corp v NL R B., 207 F 2d 575, 578-80 (C A 7) ' See,TheKrogerCo (Cleveland Division), 177 NLRB No 104, enfd sub nom Silbaugh v NLRB, 429 F 2d 761 (C A D C)