Brotherhood of Teamsters, Local 70

674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America and California Trucking Association, Inc. Case 20-CB-2242 December 21, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On August 4, 1971, Trial Examiner Herman Corenman issued the attached Decision' in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, the General Counsel filed an answering brief, and the Charging Party filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record' and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Oakland, California, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. 1 The Respondent's request for oral argument is denied, since in our opinion the record, including the transcript, exhibits, and exceptions and briefs, adequately presents the issues and the positions of the parties TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERMAN CORENMAN, Trial Examiner: Upon charges filed May 12, 14, and 18, and June 2, 1970, by California Trucking Association, Inc., herein called CTA, with the office of Region 20 of the National Labor Relations Board, herein called the Board, the General Counsel of the Board issued a complaint on June 9, 1970, against Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, herein called Respondent or Local 70, alleging that it is engaging in unfair labor practices within the meaning of Section 8(b)(1)(B) and Section 8(b)(3) of the National Labor Relations Act, herein called the Act. The Respondent filed an answer denying that it violated the Act. Pursuant to notice, a hearing was held before me on October 29, 1970, January 11, 12, 15, 19, 26, 27, and 28, and February 1, 2, 3, 4, 5, and 11, 1971, at San Francisco, California. All parties were represented by counsel and were afforded opportunity to adduce evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs were received from all parties on June 1, 1971, and they have been carefully considered.' Upon the entire record2, in this case, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS The complaint alleges, the answer admits, and I find, that at all times material herein CTA has been a voluntary association of employers existing for the purpose, inter alia, of representing and assisting through the procedures of multiemployer collective bargaining its employer-members in negotiating and entering into labor contracts with the collective-bargaining representatives of their employees, including the Respondent. During the past year, a substantial number of employer-members of CTA engaged in freight transportation enterprises furnishing interstate transportation services and transporting commodities in interstate commerce. During the past year, the employer- members of CTA referred to above, in the course and conduct of their business operations, received in excess of $50,000 for transporting freight in interstate commerce. At all times material herein, CTA and its employer-members have constituted an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1 Exhibits 20 through 260 were not received from the court reporter until June 16, 1971. 2 The Respondent's letter of June 9, 1971, requesting that the hearing be reopened so that Respondent can subpena records from employers concerning the existence of contracts with the Respondent as testified to by Respondent's president, Mr Muniz, at the hearing is hereby denied, inasmuch as the General Counsel in his letter of June 22, 1971, in opposition to Respondent's request to reopen the hearing, concludes as follows- Counsel for the General Counsel agrees whole-heartedly with Respondent's Counsel that " it seems strange" that the individual contracts [which counsel for the Respondent at the hearing agreed to supply to the court reporter as exhibits ] have "disappeared." Without accepting Respondent's explanation for non-production of the contracts, Counsel for the General Counsel will not press further for production of the documents, and requests that the Trial Examiner accept Mr. Mumz's uncontradicted testimony that Respondent entered into individual contracts with certain members of C.T.A. on various dates after the current National Master Freight Agreement and Joint Council 7 Supplement Agreement became effective The letters from the parties relating to my denial of Respondent's request to reopen the record may be found in a postheanng exhibit which I have labeled for identification as Trial Examiner's Exhibit 194 NLRB No. 106 BROTHERHOOD OF TEAMSTERS, LOCAL 70 675 II. THE LABOR ORGANIZATION INVOLVED The pleadings establish, and I find, that the Respondent is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues In essence, the overriding issue in this case is whether the Respondent is bound by the National Master Freight Agreement and its Joint Council No. 7 Supplement, effective for the contract period April 1, 1970, to June 30, 1973. In its answer, at paragraph III the Respondent admits the allegations of paragraph X of the complaint that Respondent "has refused to accept and be bound by terms" of the April 1, 1970, to June 30, 1973, agreement aforesaid. In justification for its refusal to be bound, Respondent alleges in its answer "that at no time was authority given by said Respondent Union to any person, firm, or organiza- tion to bargain on its behalf and at no time was it bound by any agreement negotiated or purportedly negotiated as referred to herein " Paragraph IV of the Respondent's answer admits the allegations of paragraph XI(b) of the complaint that "at all times since on or about April 3, 1970, Respondent has refused to accept, execute or give full force and effect to the new National Master Freight Agreement and the new Supplemental Agreement referred to in paragraph IX above [in the complaint], in order to force or require C.T.A. and/or its employer-members to bargain with Respondent on an individual basis rather than through T.E.I., their designated bargaining representative." In justification of this admitted conduct, the Respondent in paragraph IV of its answer alleges that at "no time was authority given by said Respondent Union to any person, firm, or organiza- tion to bargain on its behalf and at no time was it bound by any agreement negotiated or purportedly negotiated as referred to herein." It also alleges as a defense for its conduct above described that "as of the date of the filing of this answer, no signed copy of any agreement referred to herein has been furnished to Respondent." Although Respondent makes this admission above- outlined in paragraph IV of its answer, nevertheless it denies that it has caused and engaged in strikes, work stoppages, and picketing at the premises of CTA employer- members in order to force or require CTA and/or its employer-members to bargain with the Respondent on an individual basis rather than through TEI, their designated bargaining representative, or that it engaged in the other conduct alleged in paragraph XI(a), (c), and (d) of the complaint.3 By virtue of the denials in Respondent's answer, at issue 3 During the hearing the General Counsel was permitted , over the objection of Respondent , to amend par XI(a) of the complaint to read as follows During the period from on or about April 2, 1970, to on or about July 31, 1970, Respondent, by its officers, agents and representatives, including those named in Paragraph V above, has threatened, caused and/or engaged in strikes, work stoppages and picketing at the premises of C T A's employer-members, including but not limited to Transcon Lines, Delta Lines, Navajo Freight Lines, Pacific Motor also is the authority of the National Negotiating Committee of Trucking Employers, Inc., herein called TEI, to act as collective-bargaining agent for CTA and its employer- members, as well as the authority of the National Freight Industry Negotiating Committee of the International Brotherhood of Teamsters to negotiate for, and in behalf of, Local 70 with TEI and to bind it through the negotiation of the National Master Freight Agreement and its Joint Council 7 Supplement for April 1, 1970, to June 30, 1973. Also in issue is whether agreement was reached for a new National Master Freight Agreement and Joint Council 7 Supplement, and if so, whether the Respondent is bound by it. If the Respondent is bound by the National Master Freight Agreement, and its Joint Council Supplement, it is clear that its conduct admitted by it in paragraphs III and IV of its answer is violative of Section 8(b)(1)(B) and (3) of the Act. If, on the other hand, the Respondent is not bound by the aforesaid agreement and was not a member of the multiunion group which bargained for the April 1, 1970, to June 30, 1973, National Master Freight Agreement with the TEI, in that event, its conduct admitted by it in paragraph III and IV of the answer would not constitute unfair labor practices within the meaning of the Act. B. Background The Respondent is affiliated with the International Brotherhood of Teamsters, herein sometimes called the International or IBT, and is bound by and governed by the International constitution. The Respondent is the majority representative of the truckdrivers and helpers of approxi- mately 66 motor carriers in Alameda County, California, who are members of the CTA and who have authorized the CTA and TEI to represent them in nationwide collective bargaining with the National Freight Industry Committee of the International Brotherhood of Teamsters. The Respondent has approximately 8,500 members. Its office is in Oakland, California. The Respondent, by written powers of attorney given respectively in October 1963 by its then president, A. N. Leishman, and secretary-treasurer, William Rodger, and in November 1966, by its then president, S. F. Royster, and its secretary-treasurer, A. N. Leishman, authorized the National Over-the-Road and City Cartage Policy and Negotiating Committee4 to negotiate for, and in behalf of, the Respondent a National Master Freight Agreement, together with riders, supplements or addenda. The union negotiating committees did negotiate National Master Freight Agreements for the 3-year terms 1964 to 1967 and 1967 to 1970. The Respondent concedes that it was bound by the 1964 to 1967 and the 1967 to 1970 National Master Freight Agreements and Joint Council 7 Supplements which were negotiated by the TEI, for and in behalf of the Trucking, Ringsby System, DiSalvo Trucking Company, and Santa Fe Trail Transportation Company, in order to force or require C T A and/or its employer-members to bargain with Respondent on an individual basis rather than through T E I , their designated bargaining representative 4 The name of this national negotiating committee was shortened for the 1970 to 1973 negotiations to "National Freight Industry Negotiating Committee " 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CTA and its authorizing members, and by the National Over-the-Road and City Cartage Policy and Negotiating Committee for and in behalf of the Respondent and other Teamster locals, as the representatives of employees of authorizing motor carriers. C. The 1970 Negotiations The 1970 negotiations took place chiefly in Washington, D.C., and again, as in the previous negotiations for a National Master Freight Agreement involved the same two parties, on the one side, the nationwide multiemployer group which had authorized TEI to represent it, and on the other side, the National Freight Industry Negotiating Committee affiliated with the International Brotherhood of Teamsters. Approximately 66 motor carriers in the Alameda, California, area, whose Teamsters employees were represented by Local 70, were among the hundreds of motor carriers nationwide who had authorized the CTA and/or TEI to represent them in these national negotia- tions. Contrary to its practice in the two previous negotiations of the National Master Freight Agreements in 1964 and 1967, the IBT did not solicit powers of attorney from its affiliated unions for the 1970 negotiations. This fact was publicized by a letter dated December 7, 1970, and was announced by the International Brotherhood of Teamsters General Vice President Frank E. Fitzsimmons, who also served as chairman of the National Freight Industry Negotiating Committee at the first meeting in Washington on January 7, 1970, where, among other matters, creden- tials were exchanged between the TEI and the National Freight Industry Negotiating Committee. The aforesaid December 7, 1970, letter (G.C. Exh. 57) read in part as follows: We have not solicited new powers of attorney this year from the various local unions that are party to the National Master Freight Agreement and supplements that are applicable to their members. Under the provisions of Article 16, Section 4(a) of the Internation- al Constitution, all of the local unions that are presently party to-such agreements are required to remain parties to such agreements. You already have a list of such local unions.5 The National Master Freight Agreement for the term April 1, 1967, to March 31, 1970 (Resp. Exh. 5), which Local 70 concedes was binding on it by its terms at section 4, provided that: The employees covered under this Master Agreement and the various Supplements thereto shall constitute one bargaining unit. It is understood that the printing of this Master Agreement and the aforesaid Supplements in separate Agreements is for convenience only and is not intended to create separate bargaining units. Sometime prior to December 22, 1969, the local unions affiliated with Joint Council of Teamsters No. 7, including Local 70, had requested permission of general vice president of the International, Frank Fitzsimmons, to be excluded from the multiunion multiemployer collective- 5 Art 16, sec 4(a) of the International's constitution (G C Exh 49) provides in part as follows Local Unions which are parties to such contracts may not withdraw bargaining unit covered by the National Master Freight Agreement and appropriate supplements thereto, and had requested permission to bargain as a single unit with their appropriate employers. But after conversations held between representatives of the local unions, including the Respondent, and General Vice President Fitzsimmons and International representatives, the effect of which was to recognize the advisability of a Joint Council No. 7 Committee to deal with matters contained in the appropri- ate Supplemental Agreement, the local unions decided to remain part of the multiunion bargaining unit covered by the National Master Freight Agreement. Following the aforesaid discussions, nine of the local unions, one of which was Local 70, the Respondent, by its chief officer and director and secretary-treasurer, Al Leishman, signed a document dated December 22, 1969, acknowledging their discussions with Fitzsimmons and which concluded with the following language: (See G.C. Exh. 24) Therefore, the undersigned Local Unions herein desire to withdraw their prior request for a separate bargaining unit and remain part of the multi' union bargaining unit covered by the National Master Freight Agreement. Under date of November 24, 1969, the National Freight Industry Negotiating Committee directed letters (G.C. Exh. 20) signed by Frank E. Fitzsimmons, chairman of the committee, to all employers covered by the National Master Freight Agreement of its "desire to negotiate changes and revisions in the terms and conditions of such agreement-for the contract period commencing April 1, 1970, as provided in Article 37 thereof." (Resp. Exh. 5) Article 37, section 2, of the 1967-70 National Master Freight Agreement provides as follows: Where no such cancellation or termination notice is served and the parties desire to continue said agreement but also desire to negotiate changes or revisions in this agreement, either party may serve upon the other a notice at least 60 days prior to March 31, 1970, or March 31 of any subsequent contract year, advising that such party desires to revise or change terms or conditions of such agreement. Preliminary to the commencement of contract negotia- tions, General Vice President Frank Fitzsimmons, in October 1969, upon the recommendation of each of the National Area Conference directors affiliated with the International designated a number of prominent leaders from each area familiar with the problems in the respective areas to serve on the National Freight Industry Negotiating Committee. Leaders from the states comprising the Western Conference included the secretary-treasurers of three Teamster locals affiliated with Joint Council 7, namely Alex Leishman from the Respondent Local 70 at Oakland, California, Tim Richardson from Local 85 at San Francisco, and Fred Hofmann from Local 287 at San Jose, California. These three executive officers were named to the Joint Council 7 Committee. The National Freight Industry Negotiating Committee solicited new contract proposals from the hundreds of locals throughout the United States who had been covered from such bargaining unit except upon six (6) months' notice and for good cause shown to the satisfaction of the appropriate Conference BROTHERHOOD OF TEAMSTERS , LOCAL 70 by the National Master Freight Agreement and the appropriate supplements. The committees which included the representatives of Joint Council 7, among whom was Leishman, then boiled these many proposals down to a set of proposals for submission to the TEI at the forthcoming contract negotiations. These boiled down proposals were submitted to a convention of two representatives from each of the hundreds of locals covered by the National Master Freight Agreement, who met at the Palmer House in Chicago, Illinois, on December 8, 1969. The meeting was chaired by General Vice President Frank Fitzsimmons. The representatives attending approved the presentation of these proposals by the National Freight Industry Negotiat- ing Committee at the forthcoming bargaining negotiations with TEI. Among the hundreds of representatives from the various locals who attended this Palmer House meeting was Al Leishman, Respondent Local 70's secretary-treasurer and principal officer. The first meeting between the National Freight Industry Negotiating Committee and the TEI was held on January 7, 1970, at the Hilton Hotel in Washington, D.C. At this meeting, General Vice President Fitzsimmons read the roster of local unions, approximately 350 in number, represented by the National Freight Industry Negotiating Committee. The TEI in turn present- ed the list of employers they represented. Included in the list of locals named by Fitzsimmons was the Respondent Local 70. Secretary-Treasurer of Local 70 Alex Leishman attended this united meeting and made no objection to Local 70 being represented by the National Freight Industry Negotiating Committee. The two negotiating parties made an exchange of written proposals, but there were no other negotiations at this first meeting. Leishman, having been appointed a member of the Joint Council 7 negotiating committee, participated in the preparation of the proposals submitted by the National Freight Industry Negotiating Committee to the TEl at the Washington Hilton Hotel on January 7, 1970. Because of their experience and familiarity with problems in the California area, Gordon Kirby from the CTA and Motor Carrier Officials Lawlor, Preston and Anderson, whose firms were members of CTA, were designated by the TEI to serve on the employer committee, and Hofmann from Local 287, Leishman from Local 70, Richardson from Local 85 and IBT General Organizer King were selected by the National Committee to serve on the union committee to negotiate changes in the Joint Council 7 Supplemental Agreement. This Joint Council 7 committee met in Washington, D.C., on February 17, 18, 19, 24, 25, and 26, and on March 9, 10, 11, 12, and 13, 1970, to negotiate a Joint Council 7 supplement to the National Master Freight Agreement. As a designated representative, Al Leishman attended all of these meetings and actively participated in the Joint Council 7 negotiations, and through his vigorous representation achieved his position especially on matters which affected the Respondent Local 70, which was affiliated with Joint Council 7. Except for five monetary items which, under the ground rules only the National Committee could negotiate, the employer and union committees for a Joint Council 7 supplement reached agreement on all other items which they were authorized to negotiate. Accordingly, the Joint 677 Council 7 Supplemental Agreement was memorialized in writing and signed at Washington on March 13, 1970 (G.C. Exh. 17), by the members of the union and employer committees, including Al Leishman who signed as a member of the union committee. The so-called five dead- locked items or money items; namely, holidays, vacation, health and welfare, pensions, and funeral leave, were referred back to the National Committee. Union and employer negotiators of the Joint Council 7 Supplemental Agreement attended a meeting of the National Negotiating Committee in Washington on April 17, 1970, to resolve the Joint Council 7 deadlocked items. Leishman attended along with the Joint Council 7 union committeemen. The deadlocked items were resolved by the National Committee. The employer and union negotiators of the National Master Freight Agreement concluded a tentative National Master Freight Agreement on April 2, 1970. Among other changes in the National Master Freight Agreement, the tentative agreement provided for a general wage increase of $1.10 per hour during the contract berm, increases in payments to the health and welfare funds,) and pension funds, an extra holiday, and improved vacation benefits. Sometime in the latter part of April or early May 1970, the terms of the tentative agreement, and its appropriate supplements (G.C. Exhs. 25, 25(a), 25(b), and 25(c)) were submitted nationwide to the hundreds of thousands of employees covered by the National Master Freight Agreement and their appropriate supplements for approval or refection. This national referendum was supervised by the U.S. Department of Labor. The balloting resulted in ratification of the tentative agreement. The tentative nature of the agreement was described in the cover letter from General Vice President Fitzsimmons to all involved members as follows: PLEASE NOTE: Employers have agreed that this monetary agreement may be reopened for further negotiations by the Union if the employers covered by this agreement enter into a more favorable monetary settlement with local unions which are not a party to the National Master Freight Agreement. The Chicago locals which did not belong to the multiumon multiemployer unit were successful in procuring an overall increase of $1.65 per hour over a 3-year contract term. Consequently, as per the tentative agreement, negotiations were reopened on the National Master Freight Agreement on wages in early July 1970 and resulted in an improved wage agreement in which the employer represent- atives agreed to pay a $1.85 per hour increase during the April 1, 1970, to June 30, 1973, contract term. Following final settlement of the Joint Council 7 Supplement by the National Committee on April 17, 1970, the union and employer representatives of the Joint Council 7 Committee met on June 19 at the offices of the Western Conference of Teamsters to finalize the language of the Joint Council 7 Supplemental Agreement in keeping with the agreement already reached. Leishman attended this meeting along with other union committeemen. A final meeting of the Joint Council was held on July 29, 1970, at the offices of the Western Conference of Teamsters in Burlingame, where the representatives reviewed the print- 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er's galley proofs and finalized vacation and health and welfare language. Although notified, Mr. Leishman did not attend the July 29 meeting. Joseph Diviny, president of Joint Council 7, signed the Joint Council 7 Supplement August 10, 1970, on behalf of the affiliated local unions, including Local 70. The president and secretary of CTA signed in behalf of the members who employed persons performing work under the various local unions' jurisdic- tions. The various locals affiliated with Joint Council 7, with the cooperation of the CTA, had copies of the Joint Council 7 Supplemental Agreement punted. Respondent Local 70 refused to cooperate in printing of the Joint Council 7 Supplement. Consequently, the CTA alone procured their printing. Local 70's Renunciation of the National Master Freight Agreement and Strikes and Work Stoppages To Force CTA Members To Bargain Individually Although the 1967 to 1970 contract, which contained a no-strike clause, had not been terminated, and had been opened only for negotiations of modifications, and despite the absence of an impasse in negotiations, Respondent Local 70 began strike and picketing activity against CTA members in Alameda County on April 1, 1970. This strike activity, picketing and resulting work stoppages affected practically all CTA members in Alameda County whose Teamsters employees were represented by Respondent Local 70. Local 70 picketing continued at most carrier terminals during the first 3 days of April 1970. The Alameda County Superior Court of the State of California issued a temporary restraining order enjoining Local 70's strike and picketing; and on April 7, 1970, the aforesaid state court issued a preliminary injunction enjoining Local 70 from picketing and other strike activity. In support of its preliminary injunction, the Court stated in its order as follows: The Court [has] concluded that the strike and work stoppage activity of defendant Local 70 and its agents is presently premature under the procedures for the negotiation of revisions and changes to the collective bargaining agreement of the parties, and that such strike and work stoppage activity is in violation of the agreement of the parties respecting such negotiating procedures. Respondent Local 70's strike activity in April was carried on without sanction from the International and under date of'Apnl 6, 1970, the following telegram was sent to counsel for the CTA by Einar Mohn, International Director Western Conference of Teamsters: (See G.C. Exh. 7) The following telegram was sent to all Freight Locals as of this date April 6 1970: Quote Under Article 37 of the National Master Freight Agreement and the notice- given by your Local Union and the National Freight Negotiating Committee the 1967-1970 Freight Contract was continued while the parties negotiated for requested amendments. On April 2 the National Negotiating Committee, as your duly authorized agent under the International Constitution entered into a tentative agreement with the employers covering the National Master Freight Agreement and monetary issues, retroactive to April 1, with only the area supplements to be completed, including your area, all subject to a ratification vote as provided by the International Constitution. No Local Union has the authority under the International Constitution for conduct its own ratification vote on this agreement. If your members are not working, you are instructed to return them to work immediately, and not to take any further action with respect to the Freight Agreement until you hear from this office. As soon as negotiations of the area supplements are completed you will be given all the necessary information to discuss with your members at a union meeting before the ratification vote is conducted. During the strike activity in early April 1970, James Muniz, president of Local 70, in a radio interview with the news media, announced that the purpose of the strike was to negotiate a better contract. Muniz referred to the demands of the Chicago locals in the trucking industry in the Chicago area, and he lamented the fact that other areas were now forging ahead of the Bay Area locals who, Muniz stated, once had the prime pickup and delivery contract in the nation. On May 18, 1970, following the counting of the ballots in the national referendum, it was officially announced by the negotiating parties that the National Master Freight Agreements and all appropriate supplements had been ratified by the membership nationwide. It was made clear by the conduct of Respondent Local 70 sometime before May 18, 1970, and presumably while the national referendum was being conducted that it was seeking to break away from the multiunion multiemployer bargaining unit and attempting to undertake separate bargaining with CTA motor carriers whose employees it represented. Thus, under date of May 13, 1970, Local 70 officers Leishman and Muniz directed identical letters to CTA and all its member-employers which read as follows: (G.C. Exh. 9) Enclosed herewith, please find copy of our communi- cation of this date to General Vice President, Frank E. Fitzsimmons, of the International Brotherhood of Teamsters. We are prepared to negotiate the terms and conditions of an agreement, including supplemental agreement, as you see fit. Please notify this Local Union immediately of a convenient time and place for negotiations. The enclosed letter, which was a copy of the May 13, 1970, letter, directed by Local 70 to International General Vice President Frank E. Fitzsimmons, read as follows: We hereby take this opportunity to notify you that the membership of this Local Union has' instructed the officers to determine whether or not they are bound by the terms of the so-called Master Freight Agreement. We have determined, and our findings are as follows: 1. This Local shall not be and does not consider itself bound by any negotiated terms or conditions of any Supplemental Agreement affecting the territorial jurisdiction or members of Local No. 70. BROTHERHOOD OF TEAMSTERS, LOCAL 70 679 2. This Local Union was promised and understands that all negotiations were to be conducted, presently and for the future, on the basis of full autonomy to negotiate and by itself to ratify the terms of any such Supplemental Agreement. 3. No extension agreement was ever signed to the knowledge of this Local Union which is binding upon this Local Union and no copy of such extension agreement was ever furnished to this Local Union after the expiration date of the present Master Freight Agreement on or about March 31, 1970. 4. The ratification or voting procedures are com- pletely inadequate, and do not have adequate safe- guards and are contrary to any understanding this Local Union has; namely, no separate negotiations and ratification procedures are being conducted on behalf of this Local Union and ballots were sent to individuals who were not employed under any pre-existing Master or Supplemental Agreement, and many members who are employed or were employed under those agreements were not, in fact, sent ballots. 5. It is our belief that a Power of Attorney was required for each new contractual negotiations and no such Power, of Attorney was granted by this Local for the 1970 negotiations, and the membership of this Local Union at no time authorized any officer or agent thereof to execute any such Power of Attorney. 6. It is our desire to fully cooperate, with the International Brotherhood of Teamsters and to fully comply with all constitutional and contractual provi- sions which may be lawfully binding upon us. At the same time, we will exhaust all peaceful legal limits open to us and we will reserve the right to take appropriate action to enforce our lawful demands dealing with the requests of the membership of Local No. 70. 7. In accordance with the above-mentioned princi- ples, we are instructing our members not to return the ballots forwarded to them because we believe that their return would imply that we consider ourselves bound by the negotiations, and we wish to re-emphasize that we do not consider ourselves bound by those negotiations. If you have any questions or comments, please do not hesitate to call upon us; and because of the urgency of this matter, if we do not hear from you within forty- eight (48) hours, we will assume full agreement with the principles and statements made herein. In reply to Local 70's May 13, 1970, letter directed to him, General Vice President Fitzsimmons dispatched the following telegram to Local 70 on May 18, 1970: I have just received your letter dated May 13, 1970, in which you stated that you have determined that you are not bound by the so-called Master Freight Agreement. I am in complete disagreement with every reason stated for such conclusion. You are clearly bound under the International Constitution and since the contract has now been approved any strike or other action which you may take will be in violation of the current agreement. A detailed letter will follow with respect to this matter. The aforesaid May 18 telegram was followed on May 19, 1970, by a letter from General Vice President Fitzsimmons to Secretary-Treasurer Leishman and President Muniz of Local 70. The letter read as follows: In response to your letter dated May 13, 1970, I have already wired you as per the attached. In further reply, please be advised as follows: 1. Under the Constitution of the International Brotherhood of Teamsters, Article XVI, Section 4, and appropriate resolutions adopted by the General Execu- tive Board, the various Supplemental Agreements including the supplemental agreement applicable to Local Union 70 and known as the Joint Council No. 7 Supplemental Agreement, are all part and parcel of the National Master Freight Agreement, are voted up or down with the Master Freight Agreement, and, once accepted, are binding upon all Local Unions and their members. 2. We have no knowledge of any promise made to Local 70, or of any understandings entered into with Local 70, that Local 70 would have the authority to ratify or reject the Joint Council 7 Supplement by separate vote. No person has been authorized by this office or by the General Executive Board to enter into any such understanding with Local 70. Such under- standing would be in complete violation of the Constitution of the International Brotherhood of Teamsters. 3. There never has been an extension agreement entered into with respect to the 1967-1970 National Master Freight Agreement, since such extension agreement was not necessary. Article 37 of the National Master Freight Agreement for the period from 1967 to 1970 provided the Unions with a right either to terminate or to continue the Agreement and ask for amendments. A decision was made to continue and ask for amendments. The notices which Local 70 was directed to send to its employers, as well as notices which were sent by the National Negotiating Commit- tee and the Western Conference of Teamsters on behalf of Local 70 to Local 70's employers all clearly set forth the intention of the Local Union and the National Negotiating Committee to continue the existing Agree- ment but to negotiate amendments. That Agreement, therefore, was never terminated and, accordingly, no extension agreement was necessary. 4. The ratification and voting procedures provided for by the International Constitution have previously been challenged in court proceedings and had been sustained as being legal and valid. The actual voting was conducted under the supervision of the United States Department of Labor. There may have been some errors made in the sending of the ballots. If so, this resulted from the failure of the Local Union to provide the International Union with an accurate up-to-date mailing list. Wherever such errors were called to the attention of the National Negotiating Committee and the U.S. Department of Labor, they were rectified immediately. In any event, the margin of votes favoring the adoption of the Agreement was sufficiently large so that any few errors which may have been made would have had no effect on the outcome of the referendum. 5. No new power of attorney is or was required for 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the negotiation of the National Master Freight Agreement. Even though powers of attorney were solicited in the past, this was not necessary under the Constitution. The Constitution provides the manner in which Local Unions first determine whether there shall be a national agreement. Once that determination is made, as it was made for the 1964-1967 contract,,the Constitution provides a manner in which a Local Union may seek permission to withdraw from the national bargaining unit. Local 70, together with the other Locals in Joint Council 7, at one time did seek such permission to withdraw within the time permitted by the Constitution. However, thereafter, all said Locals, including Local 70, by appropriate resolution withdrew said request and specifically agreed to remain part of the national unit. Local 70, therefore, is bound by the provisions of the Constitution relating to the National Agreement. By reason of all the foregoing, it is clear that Local 70 is a part of the national bargaining unit, and is bound by the national negotiations. Since the National Master Freight Agreement together with the Joint Council 7 Supplement have now been duly ratified by the membership in accordance with the provisions of the International Constitution, it is my duty to advise you that Local Union 70 and its members are bound by said Agreement and Supple- ment, and that any strikes or work stoppages to amend or alter said Agreement and Supplement would be in violation of said Agreements, and unauthorized by the International Union. Events Following Shortly Before and After the May 18, 1970, Announcement That the Contract Had Been Ratified by the Membership It was agreed to, and announced, by the employer and, union negotiators that monetary items would be retroactive to April 1, 1970, and other provisions would be placed into effect May 18, 1970, the date ratification was announced. Accordingly, many CTA members started placing into effect modified provisions contained in the Joint Council 7 Supplement; in particular the revised seniority clause which lengthened the time period in which a casual employee could obtain seniority status as well as the clause dealing with the revised bidding procedure. Under the, new bid procedure, the employees were given the opportunity to bid job classification and shift, but not for routes, which were to be assigned by the employer. Thus in June 1970, when Transcon Lines, a CTA member, notified Local 70 that it was placing into effect the revised bid procedures set forth in the Joint Council Supplemental Agreement, Leishman and Muniz of Local 70 replied in a letter dated June 11, 1970, as follows: In response to your communication of June 9, 1970, we object to the procedure outlined therein and will not tolerate any changes. Such changes are not required by any real or imaginary agreement. The document you refer to in the first paragraph of your letter has never been seen by us. If you have any copies signed by a representative of this local union, please forward a copy to us. When Ringsby Truck Lines, another CTA member, began to place into effect the new bid procedure, Local 70's business agent, Roy Nunes, warned the Ringsby's terminal manager that the terminal would be struck if the new bidding procedure, was instituted, and in the following week, Local 70 struck Ringsby for 2 hours until the company agreed to Local 70's demands on the bidding procedure. On this occasion, Nunes told Ringsby that Local 70 would not adhere to the new contract and that Ringsby would have to retain the bidding procedure under the old contract; that Local 70 was not a party to the new contract. Nunes also told Ringsby's terminal manager that Local 70 was going to negotiate or try to negotiate separately with some of the companies, including Ringsby. The record shows that following the State Court Preliminary Injunction dated April 7, 1970, many of the CTA motor carvers whose employees were represented by Local 70 found themselves being picketed by altered Local 70 picket signs to disguise the identity of Local 70 which was under State Court injunction not to picket or strike. Thus a work stoppage began on May 8, 1970, at the Navajo Freight Lines Terminal in Oakland, a CTA member; the Local 70 picket sign altered to read Local 705 by the addition of a hand letter "5" after the preprinted "70." On that same day, Local 70's Business Agent Chuck Mack told Navajo Terminal Manager Atchison that "the pickets were there, that Local 70 was going to honor the picket line and that they would not work." Local 70's disguised picketers of Navajo which began on May 8, 1970, continued with interruptions through May 18 or 19; the pickets carrying signs reading Local 705, 208, 457, 104, and 170.6 On June 1, 1970, Local 70's business agent, Chuck Mack, called Navajo Terminal Manager Atchison by telephone and asked what Atchison's intentions were regarding a new contract. Atchison told Mack that Navajo was bound by the National Master Freight Agreement and the supple- ments and planned to live up to those agreements. Mack replied that Local 70 did not recognize the National Master Freight Agreement or the Supplement Agreement, that he was going on vacation and he wished Atchison would wait before implementing the new contract until he returned from vacation so he could personally shut Navajo down.? On June 1, 1970, Local 70's business agent, Lou Riga, met with officials of the Delta Lines, a C.T.A. member, at the Emeryville, California terminal in the presence of three Local 70 union stewards. Riga told the group that Local 70 was not going to recognize the new supplement or the National Master Freight Agreement, and that he had been instructed by Local 70's president, Muniz, to inform the employer that if the Delta Lines attempted to place into effect either of these agreements, Delta would be struck by Local 70. Delta's director of labor relations, Bacigalupi, replied that as far as Delta Lines was concerned, it was 6 Terminal Manager Atchison phoned a member of the executive board note that Local 70's business agents carry the contracts and are accepting of Local 170, which is a Massachusetts Local, and was told that Local 170 and insisting on all the monetary and other benefits of the National Master had no dispute with Navajo. Freight Agreement and Joint Council 7 Supplement 7 Although Respondent claims that there is no contract, it is ironical to BROTHERHOOD OF TEAMSTERS, LOCAL 70 681 bound by both of the agreements and would live up to them. On June 15, 1970, Local 70's business agent, Leroy Nunes, and its president, James Muniz, visited C.T.A. member, Transcon Lines terminal, and talked to Terminal Manager Gary Bowen in the presence of five Local 70 union stewards and told him to pull down from the bulletin board the bids that he had posted under the new bidding procedure provided for in the new Joint Council 7 Supplement. Muniz told Bowen he was not to implement any "so-called new agreement, but to abide by the old agreement until such time as Transcon Lines would negotiate with Local 70 directly for a contract." Muniz told Terminal Manager Bowen that if he didn't pull down the bids and if he attempted to comply with the new supplement, that Local 70 would take positive action against Transcon, and it would be sorry. Muniz also told Bowen that it was harassing all of the carriers to get them to negotiate directly with Local 70 for a contract. The bid sheets were mysteriously removed, without authority, from the company bulletin board, and Bowen made no attempt to post them again in the face of Muniz' threat "to take positive action." The Encmal terminal at Alameda, California, a C.T.A. member, was harassed by Local 70 picketing with both Local 70 signs and Local 70 altered signs on May 18, 1970. On that same day, Local 70's business agent, Leroy Nunes, phoned Encinal Terminal Manager Brosnan and requested amnesty for drivers in Local 208. The letter of amnesty was picked up the following morning by another Local 70 business agent. But on the following day, May 19, picketing continued. Terminal Manager Brosnan phoned Local 70's business agent, Larry Diaz, and inquired why the pickets had not been removed. Diaz told Brosnan that Local 70 was also requesting amnesty for members of Joint Councils 42 and 7 and ILWU Locals 6 and 10. Brosnan agreed to give the amnesty except as to the ILWU locals because they were with another division of Encinal. Brosnan asked Diaz what would happen if Encinal pulled out of the C.T.A., Diaz replied that Encinal's troubles would be over. On July 6, 1970, Local 70's business agents, Frietas and Sarmento, visited the Oakland Terminal of the Santa Fe Trail Transportation Company, a C.T.A. member, and engaged Terminal Manager Crispen in conversation. The two business agents told Crispen that the Company had an employee named Martinez at the Oakland Terminal who had worked 15 days and had established seniority. Crispen replied that the new contract (Joint Council 7 Supplement) which the Company was following stated that the employee's seniority status shall occur when he works 30 days in probationary or a trial basis, hence Martinez had no seniority. Crispen suggested to the two business agents to take the matter up through the grievance procedure of the contract. The two business agents threatened to picket the terminal. At the end of this conversation, Business Agent Frietas went out and placed pickets at the terminal, and, as a consequence, the employees walked off the job. The picketing and work stoppage continued during the balance 8 The uncontradicted evidence also shows, and I find, that Local 70 picketed and struck the Oakland terminal of the Pacific' Motor Trucking Company in early April 1970 for several days, at which time the Local 70's of the week until the following Monday morning. On the morning of July 8, 1970, Local 70's business agent, Frietas, visited the Santa Fe Oakland Terminal while it was being picketed by Local 70. Frietas told Crispen that if the Company did not stop complying with the new contract, that he would also place pickets at the Santa Fe terminal in Richmond, California, and if it was necessary at the Company's Los Angeles terminal . Crispen again told Frietas to follow the grievance procedure of the contract, but Frietas refused. On that same day, Local 70 also picketed the Santa Fe Richmond terminal. A work stoppage by Local 70 members employed at the Oakland terminal of the Pacific Motor Trucking Company, a C.T.A. member, began on May 8, 1970. The picketing and work stoppage lasted 10 days . On the first 2 days, the pickets carried signs marked Local 208 and on subsequent days the signs were changed with crayons to read 104, 170, and other numbers.8 In keeping with Local 70's strike action against almost all of C.T.A. members in the East Bay area for several days in the first part of April 1970, Local 70 also picketed and struck the Oakland Terminal of DiSalvo Truck Lines with the use of Local 70's signs altered to read 170 in the period May 16 to 18, 1970 . Additionally, in late June or early July 1970, Local 70's business agent, Dick Sarmento, ordered DiSalvo's president, Charles J. Lawlor, to remove from the company bulletin board a bid sheet following the bid procedure of the new Joint Council 7 Agreement. When Lawlor phoned Sarmento and told him he was not going to remove the bulletin, Sarmento threatened to close down the DiSalvo Truck Lines ; and Sarmento came over to the Oakland Terminal of DiSalvo and pulled the bid sheet off the bulletin board. Analysis and Conclusion Concerning Respondent Local 70's Conduct since April 1, 1970 It is established without contradiction, and in fact is admitted by the Respondent's answer, that at all times since April 3, 1970, it has refused to accept and be bound by the terms of the National Master Freight Agreement and its supplement applicable to members affiliated with Joint Council 7, including Respondent Local 70. I find that as a member of the multiunion-multiemployer group, the Respondent was bound by the agreements of the National Freight Industry Negotiating Committee and the Joint Council 7 Committee. As a member of the multibargaining group, the Respondent's acts disavowing its obligations as a member of the multiunion group, coming after negotiations for a new contract had been all but completed, was untimely under Board and court law. The conduct of the Respondent in renouncing and refusing to be bound by negotiations of its representatives thereby constituted a refusal to bargain in violation of Section 8(b)(3) of the Act. Additionally, the evidence is uncontradicted that the Respondent in early April 1970 struck and picketed and/or threatened to strike almost all of the C.T.A. members whose employees represented by Local 70 were covered by the National Master Freight Agreement and Joint Council business agent phoned Terminal Manager Hellwig and told him Local 70 was "going to close down all the terminals in Oakland because they were not satisfied with the negotiations that were going on " 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7 Supplement and struck and picketed, among others, bargaining unit C.T.A. members, Transcon Lines, Delta Lines, Navajo Freight Lines, Pacific Motor Trucking, Ringsby System, DiSalvo Trucking Company, and Santa Fe Transportation Company on various dates above recited in greater detail in April, May, and June, 1970, for an objective of forcing C.T.A. bargaining unit employers to bargain with them individually and break away from the multiemployer unit. I find that the above-described conduct of the Respon- dent Local 70, by its officers, agents, and members, in engaging in strikes, picketing, work stoppages and in threats thereof, in concert with other labor organizations against C.T.A. member employers, who belonged to the multibargaining unit, and who were hence bound by the negotiations of their group representative, C.T.A. and T.E.I., restrained and coerced the aforesaid employers in the selection of their representatives for the purpose of collective bargaining or the adjustment of grievances within the meaning of Section 8(b)(1)(B) of the Act,9 and constituted a refusal to bargain in violation of Section 8(b)(3) of the Act.10 Respondent Local 70's Status as a Member of the Multiunion-Multiemployer Bargaining Unit The record discloses without contradiction that Respon- dent Local 70 became a part of the multiunion-multiem- ployer bargaining unit in the negotiations for the 1964-67 and the 1967-70 contracts. In those negotiations, Local 70 together with hundreds of other locals expressly authorized the National Over-the-Road and City Cartage Policy and Negotiating Committee, appointed by the International, to represent them in collective bargaining with the employer group. Contracts were consummated which the Respon- dent concedes were binding on them. Negotiations for a 1970 to 1973 agreement began no later than January 7, 1970, and were practically consummated on April 2, 1970. But the Respondent made no unequivocal move to disassociate itself from the multiunion unit until it notified the C.T.A. employer-members and the International by its letters of May 13, 1970, of its withdrawal from the unit. The withdrawal, made after collective-bargaining negotiations had begun and were all but completed, was untimely and violated Section 8(b)(3) of the Act. Although the Respon- dent executed no power of attorney to the National Freight Industry Negotiating Committee to negotiate the 1970-73 contract as it did in the negotiations culminating in the 1964-67 and 1967-70 contracts, it took no unequivocal action to withdraw prior to the commencement of negotiations. On the contrary, it manifested a clear intention to remain in the multiunion-multiemployer bargaining unit by its action of December 22, 1969, in acknowledging in writing that it was not withdrawing from the bargaining unit. Moreover, its May 13, 1970, withdraw- al was in contravention of the International constitution by which it was bound and by the terms whereof it was prohibited from withdrawing from the bargaining unit "except upon 6 months notice and for good cause shown ... approved by the General Executive Board of the International Union." But even if no effect were to be given to the International's constitutional provision relating to withdrawal from the bargaining unit, it would be sufficient to conclude that Respondent Local 70 was a member of the multiunit and its withdrawal was untimely and, therefore, in violation of the Act under Board and court law. Field and Sons, Inc., 189 NLRB No. 59; Intercity Petroleum Marketers, Inc., 173 NLRB 1420; N.L.R B. v. Sheridan Creations, Inc., 357 F.2d 245 (C.A. 2); Hearst Consolidated Publications, Inc., 156 NLRB 210; Retail Associates, Inc., 120 NLRB 388 ; Publishers Association of New York City, et al. v. N.L.R.B., 364 F.2d 293 (C.A. 2); Anderson Lithograph Co., 124 NLRB 920, enfd. sub nom. N.L.R.B. v. Jeffries Banknote Co., 281 F.2d 893 (C.A. 9); Detroit Window Cleaners Union, 126 NLRB 65 ; Milk & Ice Cream Dealers of Greater Cincinnati, 94 NLRB 23 ; York Transfer & Storage Co., 107 NLRB 139. The ground rules for withdrawal from a multiemployer- multiumon bargaining unit were set forth by the Board in Retail Associates, Inc., 120 NLRB 388, 395 , where it spoke as follows: We would accordingly refuse to permit the withdrawal of an employer or a union from a duly established multiemployer bargaining unit, except upon adequate written notice given prior to the date set by the contract for modification, or to the agreed-upon date to begin the multiemployer negotiations . Where actual bargain- ing negotiations based on the existing multiemployer unit have begun, we would not permit, except on mutual consent, an abandonment of the unit upon which each side has committed itself to the other, absent unusual circumstances . It is -clear that under the ground rules to be promulgated, we would reach the same result as found in the present case. In The Evening News Association, Etc., 154 NLRB 1494, the Board recognized the right of a labor organization to withdraw from multi-bargaining in the same manner and to the same extent as had been granted to employers, namely that the withdrawal be unequivocal and timely, that is before the agreed-upon date to begin the multiemployer negotiations . In the instant case, it is clear that Local 70's withdrawal was untimely. In N.L.R.B. v. Sheridan Creations, Inc., 357 F.2d 245, 248 (C.A. 2), the court expressed its agreement with the Board's ground rules for withdrawal from a multi-bargaining unit as follows: Multi-employer bargaining is based on the consent of the parties to treat with one another through the agreed units. A shift in membership after negotiations have begun has lively possibilities for disrupting the bargain- ing process . In a case such as this, good faith withdrawal of a small unit might in practice have minimal or no effect. However, the potential for disruption is sufficient to justify the Board in adopting a uniform rule for all cases that withdrawal is not timely once bargaining has begun. We cannot say that no such potential exists, or that its incidence would be so infrequent that the 9 Hoisting & Portable Engineers Local 701, etc., 141 NLRB 469; Ice 893, 896 (C A 2); United Association of Journeymen, etc, Local 525, 135 Cream, Frozen Custard, etc, Teamsters Local 717, 145 NLRB 865, Local NLRB 462, 471 294, International Brotherhood of Teamsters, 126 NLRB 1, enfd. 284 F 2d 10 Ibid BROTHERHOOD OF TEAMSTERS, LOCAL 70 683 Board's judgment that the uniform rule is needed is without a reasonable foundation or arbitrary in nature. The Respondent's May 13, 1970, Letter to the International and the International's May 19, 1970, Reply to Letter The Respondent's May 13, 1970, letter to International General Vice President Frank E. Fitzsimmons, asserting justification of its refusal to be bound by the terms of the 1970 to 1973 National Master Freight Agreement, expresses in part the same defenses that the Respondent Local 70 asserts in this case. Inasmuch as the content of the Respondent's May 13, 1970, letter have been set forth earlier in this decision, I will not repeat it here. It is sufficient to note that International General Vice President Fitzsimmons' reply letter of May 19, 1970, convincingly refutes the contentions made in the Respondent's May 13, 1970, letter. The facts and arguments set forth in Mr. Fitzsimmons' May 19 reply letter are amply supported by the record in this case, and the Respondent's assertion in its May 13, 1970, letter that it was to have full autonomy in the negotiation of a supplemental agreement and that the ratification or voting procedures were inadequate and contrary to their understanding, does not have support in the record. I am in total agreement with the statement of facts and legal conclusions in Mr. Fitzsimmons' May 19 reply letter to the Respondent. The Existence of a Signed Agreement Although the Respondent's May 13, 1970, letter to International General Vice President Fitzsimmons conced- ed, by implication, the existence of a National Master Freight Agreement and a Joint Council 7 Supplement, its refusal to be bound by the terms thereof were not grounded on a contention that there was no signed agreement. But during the hearing, Respondent's counsel contended there was an absence of evidence that the National Master Freight Agreement or the Joint Council 7 Supplement had ever been signed. The Respondent's brief on this point closes with the following contention: Inasmuch as the General Counsel has yet to produce an executed bargaining agreement, setting forth the terms and conditions which he now seeks to enforce against Local 70, it is respectfully submitted that there has been a failure of proof and the General Counsel has failed to meet his burden. The Respondent's contention aforesaid, I conclude, is without merit. There is overwhelming and uncontradicted evidence in the record as to the terms of both the National Master Freight Agreement and the Joint Council 7 Supplement. The terms of these contracts may be found in the following documents in the record: The Joint Council 7 Supplement (G.C. Exh. 17) signed March 13, 1970, by all of the members of the employer committee and the union committee, including the signatures of Mr. Al Leishman, Local 70's secretary-treasurer; the Joint Council 7 Supple- ment in completed form (G.C. Exh. 18) signed by Joint Council 7 President Joseph J. Diviny and by CTA executive officers on August 10, 1970, acknowledging that the agreement had in fact been signed by March 13, 1970, by the Joint Council 7 Committee. Other documents evidenc- mg the terms of the Joint Council 7 Agreement are in evidence as General Counsel's Exhibits 36 and 37. General Council Exhibit 36 is the working guide showing all language changes in the Joint Council 7 Supplement and was used as a ready reference until the contract was finally punted in booklet form. General Counsel's Exhibit 37 is the punted booklet containing the complete terms of the Joint Council No. 7 Local Pickup and Delivery Supplemental Agreement for the period April 1, 1970, to June 30, 1973, which I find is binding on Local 70 as fully as if Local 70 had signed it, and I find that Local 70 officials are required by the Act to sign it, if requested. See Section 8(d) of the Act; also H. J. Heinz Co. v. N.LR.B., 311 U.S. 514; 61 S. Ct. 320. Evidence that the National Master Freight Agreement was executed by the employer and union members of the National Committee is found in General Counsel's Exhibit 19, as well as in the printed booklet that is circulated nationwide and is the National Master Freight Agreement for the contract term April 1, 1970, to June 30, 1973. This printed booklet is found in the record marked General Counsel's Exhibit 26, and on page 81 thereof bears the printed names of the national negotiators for the employees and for the employers. Additional evidence of the terms of both the National Master Freight Agreement and the Joint Council 7 Supplement may be found in the material sent out to the hundreds of thousands of Teamsters members throughout the nation setting forth the terms of the new National Master Freight Agreement and the appropriate Joint Council Supplement mailed to the affected employees in the national referendum conducted under the supervi- sion of the United States Department of Labor in late April and early May 1970. These documents setting forth the contract terms of both the National Master Freight Agreement and the Joint Council 7 Supplement are found in the record as General Counsel's Exhibits 25, 25a, 25b, and 25c; and on May 18, 1970, it was officially announced that the members in nationwide balloting had ratified the contracts.ii But aside from the fact that there is uncontradicted evidence in the record of executed contracts, the Act does not require that a collective-bargaining agreement be in writing or executed by the parties. In Hamilton Foundry Co. v. Foundry Workers, 193 F.2d 209 (C.A. 6), cert. denied 343 U.S. 966, it was held that a contract may be validly entered into even though the written instrument evidencing the terms of the contract has not been executed by the parties. Accord Rabovin v. N.L.R.B., 195 F.2d 906 (C.A. 2); Roadway Express Inc. v. General Teamsters, etc., Local 249, 330 F.2d 859 (C.A. 3). In Rabovin, supra, the Court stated the law as follows: 11 As I have found earlier in this Decision, ratification of the agreement larger wage package were reopened following the success of the Chicago was made with the understanding that if the Chicago locals, who were not locals which were not in the bargaining unit, and as a result of additional part of the multibargaining unit, were able to secure a larger wage package negotiations in July 1970, an increased wage package was negotiated by the than the multigroup had negotiated, wages could be reopened for further national negotiators negotiation As I have found earlier in this Decision, negotiations for a 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "There is nothing in the Act which compels the conclusion that collective bargaining contracts must be firmly attested by the parties; rather Section 8(d), codifying the rule of H. J. Heinz, Co. v. N.L.R.B., 311 U.S. 514, 61 S. Ct. 320, specifically provides for a written agreement `if requested by either party'-clear evidence that a writing is not mandatory as a matter of law." From a practical standpoint, it is significant to note, and cannot be overlooked, that all of the other local unions affiliated with Joint Council 7 have fully accepted and have acknowledged themselves bound by the terms of both the National Master Freight Agreement and the Joint Council 7 Supplement. Only Local 70 contends that it is not bound; but with apparent inconsistency, it accepts and insists on all of the benefits, monetary and otherwise, which flow from the contract terms; and although the Respondent at the hearing contends there is no contract, still Local 70 business agents are known to carry with them copies of the National Master Freight Agreement and the Joint Council 7 Supplement.12 The Role of Al Leishman as a Member of the National Freight Industry Negotiating Committee As I have found earlier in this Decision, Mr. Al Leishman, Local 70's secretary-treasurer and the principal executive officer of that local, was designated by General Vice President Frank E. Fitzsimmons, upon the recommen- dation of Einar Mohn, the director of the Western Conference of Teamsters, to serve on the negotiating committee. Appropriately, Leishman was designated to serve on the Joint Council 7 Committee which negotiated the Local 7 Supplement Agreement with which Joint Council Local 70 and approximately eight other locals were affiliated. Leishman, together with Mr. Tim Richardson, secretary-treasurer of Local 85 in San Francisco, and Mr. Fred Hoffman, secretary-treasurer of Local 287 in San Jose, were the only three officials selected from the approximately nine locals comprising Joint Council 7. They were selected because of their knowledge, experience and skills and because they were executive officers of large and powerful locals in the Bay Area. Mr. Mumz testified that Local 70 had never authorized Leishman to represent it in negotiations and did not authorize Joint Council 7 to bargain in its behalf. Muniz also testified that Local 70 did not authorize Mr. Joseph Diviny, president of Joint Council 7, to execute the Joint Council 7 Supplemental Agreement. Presumably, Mr. Muniz means to state that no formal action was taken by the Local 70's membership resulting in the preparation in each instance of a formal document expressly granting the authority to Leishman, to Joint Council 7 or to Mr. Diviny, its president. Section 2(13) of the Act provides, however, that: "In determining whether any person is acting as an agent of another person responsible for his acts, the question of whether the specific acts performed were actually author- ized or subsequently ratified shall not be controlling." It is clear that Local 70 acquiesced in Mr. Leishman's role 12 Under date of July 9, 1970, a temporary restraining order issued by the United States District Court of the Northern District of California against Local 70, upon application of the Board's Regional Director for as a member of the National Freight Industry Negotiating Committee and his role in negotiating the Joint Council 7 Supplemental Agreement. Local 70 acquiesced in his signing the December 22, 1969 document (G.C. Exh. 24) along with other Joint Council 7 affiliated local unions acknowledging their membership in the multiunion-em- ployer group and made no move to disclaim it while bargaining proceeded through the months of January through April 1970. It permitted Leishman to attend the several prenegotiation conferences in 1969 concerned with collating and boiling down union proposals to be submitted to the employer group. It permitted him to actually participate as a member of the negotiating committee to bargain the terms of the Joint Council 7 Supplemental Agreement which was to be binding on all of its affiliated locals, including Local 70, a procedure which demanded Leishman's presence in Washington through much of January, February, and March, and in April 1970. During all of this activity on the negotiating committee, Mr. Leishman's salary was paid by the Local 70 as well as his expenses. Moreover, Local 70 President James Mumz also attended the March 31, 1970, negotiations in Washington and gave a report to the membership on the status of the negotiations. But even if Leishman had not been selected by General Vice President Fitzsimmons to serve on the negotiating committee for a National Master Freight Agreement and Joint Council 7 Supplement, I would nevertheless find, under the facts in this case, that Local 70 was part of the multiunion-multiemployer bargaining unit and hence bound by the 1970-73 National Master Freight Agreement and its Joint Council 7 Supplement. In this connection, it is pointed out that, approximately six of the local unions affiliated with Joint Council 7 were unrepresented by committeemen from their respective local unions. Yet, they correctly considered themselves bound by the negotiated agreements because of their membership in the multiunion- multiemployer bargaining unit. I have concluded that Local 70 enjoyed no different status than the other local unions affiliated with Joint Council 7 and that Local 70 was bound by the negotiated agreements just as they were. But inasmuch as Local 70 had its chief executive officer, Leishman, present in Washington, and who actively and effectively participated in the negotiations and who made it a point especially to advance the interests of Local 70 in the negotiation of the Joint Council 7 Supplement, there is even greater reason to bind Local 70 with the results of the bargaining. The Existence of Minor Variations in Contract Terms at the Local Level Does Not Destroy the Multiunion-Multiemployer Bargaining Unit The existence of slight variations in the contract terms between some of the affiliate locals of Joint Council 7 does not destroy the multiunion-multiemployer bargaining unit. It is clear, and I have found, that at least since 1964 there has been a national multiunion bargaining unit of which Local 70 has been a part, by reason, among other things, of Region 20, pursuant to Sec 10(j) of the Act On July 20, 1970, the restraining order was continued in force and effect by the court. BROTHERHOOD OF TEAMSTERS, LOCAL 70 685 its affiliation with Joint Council 7 and also with the International, by whose constitution it is bound. Since 1964, all agreements nationwide have been merged into the National Master Freight Agreement and its several supplements throughout the nation. These supplements, together with the National Master Freight Agreement,, constitute a single contract covering the trucking industry. This fact is clearly stated at article 2, section 2, of the National Master Freight Agreement, providing in part as follows: (See G.C. Exhs. 2 and 26 for the years 1967-70 and 1970-73 respective.) There are several segments of the Trucking Industry by this agreement, and for this reason, supplemental agreements are provided for each of the specific types of work performed by the various classifications of employees controlled by this Master Agreement. All such Supplemental Agreements are subject to and controlled by the terms of this Master Agreement and are sometimes referred to herein as Supplemental Agreements. It is not disputed that with respect to some local unions affiliated with Joint Council 7, there are differences in health and welfare plans, Saturday work, overtime, and other matters. These differences are historical variations that prevailed before joint bargaining, and it was agreed and understood that these historical variations at the local level would not be prejudiced by group bargaining. Thus, article 2, section 5, of the National Master Freight Agreement (G.C. Exh. 26) provides: Riders or Supplements to this agreement providing for better wages, hours and working conditions, which have previously been negotiated by Local Unions and Employees affected and put' into effect, shall be continued. No new Riders or Supplements to this Agreement shall be negotiated by any of the parties hereto except in those instances agreed to by the parties hereto. Article 6, section 1, of the National Master Freight Agreement also provides in part: The Employer agrees that all conditions of employment in his individual operation relating to wages, hours of work, overtime differentials and general working conditions shall be maintained at not less than the highest standards in effect at the time of the signing of this Agreement- Allowance for historical differences may be found in the Joint Council 7 Supplemental Agreement to the National Master Freight Agreement 1967-70 at Article 60 of the Supplemental Agreement which reads as follows: All past practices existing between the Employer and the Local Union established prior to July 1, 1961, shall remain in force and effect, except as nullified or changed in this agreement from the agreement which was in effect June 30, 1961. The Joint Council 7 Supplemental Agreement for the period April 1, 1970 to June 30, 1973 (G.C. Exh. 37), contains the following language on "Past Practices" at article 62: Within 60 days of the issuance of this Supplemental Agreement to the affected Unions and the Employers, all past practices mutually agreed to shall be reduced to writing and signed by said Employer and signed by said Employer and Local Union. Failure of the parties to comply with this requirement shall result in the alleged practice becoming null and void. Any and all existing Agreements will be subject to renewal approval in writing by both parties within the 60 day period named. It is well settled by Board precedent that the existence of local differences does not operate to destroy the multibar- gaining unit. See for example The Kroger Co., 148 NLRB 569, where the Board in holding a multiemployer unit to be appropriate, notwithstanding a history of individual adjustments, said as follows: Petitioner further contends that the history of individu- al adjustments negates the establishment or existence of a multiemployer unit. We do not agree. The necessary implication of this argument is that in multiemployer bargaining a union and an individual employer member of the group are automatically precluded from negotiat- ing separately on limited matters of peculiar concern to the individual employer, unless such employer with- draws from the group. This is patently unrealistic. The problems of each member of a multi employer group are understandably not always identical. While it may be to the best interest of the employers and labor organizations involved to bargain as a group about all matters of general concern-the obvious reason for the formation and continuation of any multiemployer unit-it may likewise be in the best interest of all concerned not to burden the group negotiations with the limited problems of an individual employer. Hence, we do not believe that the exercise of a mutually recognized privilege to bargain individually on limited matters, as in the present case, is inconsistent with the concept of collective bargaining in a multiemployer unit... . The fact that in past bargaining over a 17-year period 14 limited individual adjustment arose from apparently dozens of agreements, all of which were jointly negotiated, does not, in itself, establish a future unequivocal intent not to be bound by group action generally. In this respect the situation here is not unlike the one where bargaining in a multiplant unit leaves certain matters for local determination at each separate plant. Cf. General Motors Corporation, Cadillac Motor Car Division, 120 NLRB 1215, 1220-21, and cases cited in footnote 10 thereof. See also Radio Corporation of America, 135 NLRB 980, where the Board in dismissing an 8(a)(5) case against RCA found that RCA had not refused to bargain with a newly certified local of the IBEW by insisting that both parties were bound by the national agreement, even though "such important issues as rates of pay, work to be performed and area craft rates were left to negotiation in the local agreement." Local 70 conduct, in (1) renouncing and refusing to be bound by the National Master Freight Agreement and its Joint Council 7 Supplement, (2) in demanding individual bargaining of CTA members, (3) in striking and picketing to compel individual bargaining from such CTA members 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in derogation of their collective-bargaining representatives and (4) in negotiating separate and different contracts with some CTA employer-members in derogation of the National Master Freight Agreement and its Joint Council Supplement,13 thereby violated Section 8(b)(1)(B) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the TEI and CTA and its members, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has violated Section 8(b)(1)(B) and 8(b)(3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Respondent, Local 70, is a labor organization within the meaning of Section 2(5) of the Act. 2. TEI, CTA, and its employer-members named in Appendix A attached hereto, and each of them are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. Respondent represents, and at all times material herein has represented, a majority of the truckdrivers and helpers employed by employer-members of CTA, named in Appendix A hereto attached, within the Respondent's geographical jurisdiction. 4. Respondent Local 70 at all times material herein was and is a member of a multiunion-multiemployer bargaining unit in which the multiunion group was represented in collective bargaining by the National Industry Freight Negotiating Committee affiliated with the International Brotherhood of Teamsters; and the multiemployer unit consisted, among others, of TEI, CTA, and its employer- members named in Appendix A attached hereto; and the aforesaid multiunion-multiemployer bargaining unit is a unit appropriate for the purposes of collective bargaining within the meaning of the Act. 5. By refusing to be bound by the National Master Freight Agreement and the Joint Council 7 Pickup and Delivery Supplemental Agreement for the contract term 13 Only one of the separate "contracts" which Mr Muniz testified he negotiated with individual CTA employer-members is in evidence It is G.C. Exh. 26 and reads as follows: Frank's Trucking agrees to negotiate a local pickup and delivery agreement with Teamsters Local 70 of the National Brotherhood of Teamsters If it is finally determined that Local 70 is party to National Master Freight Agreement, or if Local 70 agrees that it is party to the National Master Freight Agreement, then, at that time, any agreement April 1, 1970, to June 30, 1973, which had been negotiated for the aforesaid appropriate bargaining unit, the Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(3) of the Act. 6. By demanding separate and individual bargaining with each of the CTA employer-members named in Appendix A and by striking and picketing some of them for the purpose of breaking them away and separating them from the multiemployer bargaining unit, the Respondent has restrained and coerced, and is restraining and coercing, employers in the selection of their representatives for the purposes of collective bargaining or the adjustment of grievances in violation of Section 8(b)(l)(B) of the Act, and has refused to bargain in violation of Section 8(b)(3). 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:14 ORDER Respondent, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to give full force and effect to the National Master Freight Agreement and its Joint Council 7 Local Pickup and Delivery Supplemental Agreement for the contract term April 1, 1970, to June 30, 1973. (b) Recognizing or giving force and effect to individual contracts negotiated with separate employer-members of CTA. (c) Requesting and demanding, and seeking separate bargaining and collective-bargaining-agreements from the CTA employer-members listed on Appendix A attached hereto and from any other employer-members of the CTA who belong to the multiemployer group represented by CTA and TEI. (d) Picketing, striking, and threats thereto, restraining and coercing CTA employer-members named in Appendix A, in the selection of their representatives for the purposes of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Notify in writing the CTA and each of its employer- members named in Appendix A that it will adhere to and be bound by the terms of the National Master Freight Agreement and its Joint Council 7 Local Pickup and Delivery Supplemental Agreement for the contract term April 30, 1970 to June 30, 1973, and sign said agreements upon request. (b) Notify in writing all CTA employer-members named in Appendix A with whom it has negotiated separate that may have been negotiated between Frank's Trucking and Local 70 shall become null and void. 14 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. BROTHERHOOD OF TEAMSTERS, LOCAL 70 agreements that they are null and void, and the Respondent will cease giving effect to them. (c) Post at its union offices in Oakland, California, and distribute to its membership by mail or other means, copies of the attached notice marked "Appendix B." 15 Copies of said notice, to be furnished by the Regional Director for Region 20, after being duly signed by a representative of the Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Deliver to the Regional Director for Region 20 signed copies of said notice in sufficient numbers to be posted by each of the CTA employer-members named in Appendix A attached hereto, at their places of business, if said employers are willing. (e) Notify said Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.16 Enterprise Transport Company Frank's Trucking Fraser Trucking Co., Inc. Garrett Freightlines, Inc. Haslett Company Hills Transportation Company, A Subsidiary of Containerfreight Corporation IML Freight, Inc. Illinois-California Express, Inc. L & V Trucking, Inc. Lodi Truck Service M & N Truck Line Manufacturers Distribution Terminal March Transport Co. Moore Truck Lines Morris Draying Company 15 In the event that the Board's Order is enforced by 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 16 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 20; in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A CTA MEMBERS FOR WHOM WE HOLD AUTHORIZATION TO REPRESENT COVERING LOCAL 70 PICKUP & DELIVERY SUPPLEMENTAL AGREEMENT A & B Garment Delivery of San Francisco, Inc. Alltrans Express California, Inc. Associated Freight Lines Atlas Freight Lines Atthowe Transportation Co. Beckman Express & Warehouse Co. Bigge Drayage Co. C-Line Express, Inc. California Motor Transport Co. Camall Trucking, Inc. Coast Drayage dba Coast Lines Consolidated Freightways Corporation of Delaware Crescent Truck Lines Ronald L. Day Transportation Co. Delta Lines, Inc. Di Salvo Trucking Company East Bay Drayage & Warehouse Co. Encinal Terminals Navajo Freight Lines, Inc. Northwestern Drayage & Warehouse O.N.C. Motor Freight System Pacific Intermountain Express Co. Pacific Express Transportation Pacific Motor Trucking Company Peters Truck Lines Ringsby-Pacific, Ltd. Ringsby Truck Lines, Inc. Ruddway Drayage, Inc. Safe Transportation Company The Santa Fe Trail Transportation Company Security Transportation Company Senna Trucking Co., Inc. Shippers Express Company Sterling Transit Co., Inc. Stewart Drayage Lines System 99 T.I.M.E.-DC, Inc. Transcon Lines Tri-County Freight United Truck Line Valley Copperstate System Walton Drayage & Warehouse Co., Inc. Warren Transportation Co. Wells Cargo, Inc. Western Gillette, Inc. Willig Freight Lines Yellow Freight System, Inc. 687 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 refuse to abide by and give full force and effect to the National Master Freight Agreement and its Joint Council 7 Local Pickup and Delivery Supplemental Agreement for the contract term April 1, 1970, to June 30, 1973, and we will sign the same on request. WE WILL NOT request, demand, or seek a separate collective-bargaining agreement from CTA employer- members named in Appendix A attached to and made a part of the Trial Examiner's Decision or from any other employers belonging to the multiunion -multiemployer bargaining unit involved in this case. WE WILL NOT recognize or give force , effect, or validity to individual contracts negotiated by us with separate employer-members of CTA who are named in Appendix A attached to the Trial Examiner's Decision or with separate employers who are part of the multigroup bound by the National Master Freight Agreement and its Joint Council 7 Local Pickup and Delivery Supplemental Agreement. WE WILL NOT by strikes, picketing, or threats thereof, restrain or coerce the CTA employer-members named in Appendix A attached to the Trial Examiner's Decision or any other CTA employer-member who belongs to the multiemployer group, in the selection of their representatives for the purposes of collective bargaining or the adjustment of grievances. WE WILL notify in writing the CTA and each of its employer-members named in Appendix A attached to the Trial Examiner's Decision that we will adhere to and are bound by the terms of the National Master Freight Agreement and its Joint Council 7 Local Pickup and Delivery Supplemental Agreement for the contract term April 1, 1970, to June 30, 1973. WE WILL notify in writing all CTA employer- members named in Appendix A attached to the Trial Examiner's Decision with whom we have negotiated separate collective-bargaining agreements, that they are null and void and that we will cease giving effect to them. Dated By BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS LOCAL No. 70, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335.