Local 295, Teamsters

26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 295, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America and Emery Air Freight Corporation. Case 29-CB-942 May 22, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On December 29, 1971, Trial Examiner Frederick U. Reel issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Respondent Union filed exceptions and supporting briefs. 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, conclusions, and recommendations, as modified herein.' The Trial Examiner found, and we agree, that the Respondent Union violated Section 8(b)(3) of the Act by insisting that the Company sign a contract which contained terms and conditions different from those on which the parties had previously agreed. As a consequence, the Trial Examiner recommended that the Union be ordered to cease and desist from its unlawful conduct, but failed to provide for affirmative relief. The General Counsel filed limited exceptions to the Trial Examiner's Decision because of the asserted inadequacy of the relief provided. The General Counsel contends that, in this case, the policies of the Act can best be effectuated by requiring that the Union sign an agreement which the Trial Examiner concluded the parties had in fact negotiated and that it post an appropriate notice. We agree that the Board should grant affirmative relief to remedy the unlawful conduct herein found. It would be improper, however, to require that the Respondent Union sign a "contract" when the parties themselves have not agreed on all of its terms. In this case, the parties executed a "supplemental agreement" containing the terms and conditions upon which their recently expired contract was to be renewed. However, as found by the Trial Examiner, neither the details pertaining to a jointly adminis- tered severance fund, which was to be newly established, nor the precise wording of the sick leave I The Respondent's request for oral argument is hereby denied as in our opinion the record in this case , including the exceptions and briefs, provision were spelled out in the supplemental agreement. It was agreed that the Respondent Union would thereafter present to the Company a complete printed contract for execution by the parties. This instrument was to be based on the terms of the old contract as modified by the supplemental agreement, with appropriate language reflecting final agreement on the severance fund and sick leave provisions. However, no further negotiations took place with respect to these provisions. Notwithstanding, the Union confronted the Company with a printed "contract" several months later which it insisted that the Company sign. This instrument departed sub- stantially from the understandings reached and memorialized in the supplemental agreement. These departures from prior understandings consti- tuted a reneging of a type which violated the Respondent's bargaining obligations, and the law requires a remedy. However, it is also clear that negotiations had not yet ripened into a mutual obligation to sign a completed contract because, as found by the Trial Examiner, both parties even now "have a right, indeed a duty, to bargain over details of the new severance fund." Thus, the unlawful conduct with which we are here concerned is not the Respondent Union's refusal to sign an agreement but rather its unilateral withdrawal from understandings previously reached. It is this change of position, unaccompanied by the give-and-take of negotiation, which constitutes a violation of the Union's statutory duty to bargain. This is the wrong that was committed and the one which demands redress. Accordingly, we shall require the Union affirma- tively to bargain in good faith and in such a manner as to implement the understandings previously reached and recorded in the supplemental agree- ment. We shall also provide for the signing and posting of an appropriate notice. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Local 295, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Insisting, after reaching agreement on contract terms with Emery Air Freight Corporation, that the Employer sign an agreement containing terms dif- adequately presents the issues and positions of the parties 197 NLRB No. 9 LOCAL 295, TEAMSTERS 27 fering from those on which the parties had reached agreement. (b) In any like or related manner refusing to bargain collectively with Emery Air Freight Corpora- tion for employees in a bargaining unit *Comprising all truckdrivers, helpers, and platform men employed by that Company at its facilities at LaGuardia and John F. Kennedy Airports and in New York City. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain with Emery Air Freight Corporation in good faith and in such a manner as to implement the understandings previously reached and recorded in their supplemental agreement. (b) Post at its business offices and meeting halls copies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by the Respondent Union's authorized repre- sentative, shall be posted by the Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Deliver signed copies of said notice to the Regional Director for Region 29 for posting by Emery Air Freight Corporation, if willing, at loca- tions where notices to employees are customarily posted. (d) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. WE WILL NOT, in any like or related manner, refuse to bargain collectively with Emery Air Freight Corporation for employees in a bargain- ing unit comprising all truckdrivers, helpers, and platform men employed by that Company at its facilities at La Guardia and John F . Kennedy Airports and in New York City. WE WILL, upon request, bargain with Emery Air Freight Corporation in good faith and in such a manner as to implement the understandings previously reached and recorded in our supple- mental agreement. Dated By LOCAL 295, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND 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 compli- ance with its provisions may be directed to the Board's Office, Fourth Floor, 16 Court Street, Brooklyn, New York 11201,Telephone 212-596-3535. TRIAL EXAMINER'S DECISION 2 In the event that this 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 read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board, having found after a trial that we violated Federal law, has ordered us to post this notice. WE WILL NOT, after reaching agreement on contract terms with Emery Air Freight Corpora- tion, insist that the employer sign an agreement containing terms differing from those as to which we have reached agreement. STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner : The issue in this case, heard at Brooklyn, New York, on October 26 and 27, 1971, pursuant to a charge filed the preceding April 23 and a complaint issued May 28, is whether Respondent, herein called the Union, violated Section 8(b)(3) of the Act by insisting that the Charging Party, herein called Emery or the Company, sign a contract embodying terms different from those on which the parties had previously agreed and by refusing to sign a contract embodying the terms on which agreement had been reached. Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed by each of the parties, I make the following: i I hereby correct the transcript to show that the exhibit received at p 71 was Resp Exh 3 Resp Exh 2 was never offered or received General Counsel's motion to correct other errors in the transcript, unopposed, is herewith granted 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED Emery, a New York corporation engaged as a common carrier in and around New York City in the business of interstate air freight forwarding and related services, annually derives gross revenue in excess of $50,000 from its interstate air freight forwarding services and is therefore an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act and is the collective-bargaining representative of Emery's employees in a unit consisting of all truckdrivers, helpers, and platform men employed by Emery at certain facilities. II. THE UNFAIR LABOR PRACTICES A. Background-Relations Between the Company, the Union, and the Industry before 1970 For a number of years the Union has been the bargaining representative not only of truckdnvers and similar employees employed by the Company but also of similar employees employed by other freight forwarders in the New York City area. A number of these employers, but by no means all, bargained with the Union through an employer association. The Company was among those not belonging to the association, and the Company conducted its own independent negotiations with the Union. Never- theless, apparently because of the strength of the Union and the competitive situation, the Company, the other nonmembers of the employer association, and the associa- tion members would eventually sign contracts with the Union containing identical terms. For example, in 1967 the Company had capitulated to certain union demands and had signed a contract at a time when the association was still considering whether to do so. The practical result of the Company's action was to force similar capitulation by the association, a fact remembered with some resentment by association members during the 1970 negotiations. The Company, the largest operator in the industry, would exchange views with members of the employer association in preparation for negotiations with the Union, but the Company acted alone in conducting its actual negotiations with the Union. The formal contracts would be prepared in printed form by the Union and would leave blank the name of the employer. In November 1967, the Company and the Union signed a typewritten "Memorandum of Agreement" which extended for 3 years, with specified modifications, the agreement expiring November 30, 1967. The last paragraph of that "Memorandum of Agreement" stated that its terms, shall be incorporated in a formal agreement to be hereafter executed, and the terms of said formal agreement shall be uniform as to all employers under contract with the Union in the air freight industry. B. The 1970 Negotiations A 3-year contract between the Company and the Union expired November 30, 1970, the same date on which the Union's contracts with other employers and with the employer association terminated. In mid-September 1970, the Union submitted to the Company proposals for a new contract and late that month the Company submitted its counterproposals. In October, the Company submitted another proposed contract. The Union wrote the Company in November rejecting these proposals and the Company presented a third proposal in mid -November. After a meeting between the parties on November 17, they agreed to extend the expiring contract for a few weeks , with the understanding that the new agreement would be retroac- tive to November 30. The next bargaining session was held at the Union's office on December 8 or 9. At that session the Union presented the Company with a ' two-page supplemental agreement which, together with the recently expired contract, represented the Union's proposal for the new contract. On that occasion , Thomas Gahegan, the compa- ny representative, asked Harry Davidoff, the union representative, "what else is coming," and Pavidoff replied "there isn't anything else . . . this is it." Davidoff further stated that the Union would call a strike unless the Company signed the agreement by the following Monday, December 14. At a later meeting on December 11, Davidoff repeated this threat, adding that all the other employers in the industry were going to sign the supple- mental agreement and most had already done so. At Gahegan's request Davidoff then showed him several of the contracts, identical to that now offered the Company, which other employers had already signed. Davidoff stated at this meeting that "there isn't going to be any change in the black book," referring to the expired contract which was to be renewed as modified by the "Supplemental Agreement." Gahegan some days later signed the supple- mental agreement on behalf of the Company. When James Brown, the Company's regional manager, handed Davidoff the signed agreement, the former observed, "I'm glad it will be another three years before we have to go through this again." The document labeled "Supplemental Agreement" which the parties signed in December 1970 was markedly similar in form to the "Memorandum of Agreement" they had executed in 1967 . Both documents made certain revisions, primarily of an economic character, in the expiring agreement and otherwise provided for its renewal. However, the 1970 "Supplemental Agreement" did not contain the clause quoted above from the 1967 "Memoran- dum of Agreement" reciting that a formal agreement would be executed which would be uniform for all employers in the industry. A fair reading of the 1970 "Supplemental Agreement" suggests that some language remained to be drafted before a completed contract was achieved. Thus, the "Supplemental Agreement" recites that ... the parties will establish a jointly administered [Severance] Fund ..." and also states: "The provisions of the contract [as to sick leave ] to be revised so as to provide [certain terms] ...." On the other hand, the "Supplemen- tal Agreement" expressly recites that it is a supplement of the expiring agreement which is "to be renewed upon the following terms and conditions ," those spelled out in the "Supplemental Agreement." LOCAL 295, TEAMSTERS 29 C. The 1971 Negotiations As noted above, the Company signed the "Supplemental Agreement" in December 1970, with the understanding that the Union would present a complete punted contract for execution. Such a contract was not presented until April 7 or 8, 1971. Brown examined the proposed contract and found that it contained several differences from the preceding formal contract which were not covered in the "Supplemental Agreement." At meetings on April 15 and 22, company representatives took the position that they would not execute the new contract because it contained significant variances from the terms agreed on the preceding December. The Union threatened to strike unless the Company signed the documents and did strike later on April 22.2 This litigation promptly ensued, as the charge herein was filed'April23. The employers association (of which, as noted above, the Company was not a member) signed the April 1971 agreement. Counsel for the association testified that he regarded the December 1970 supplemental agreement as covering "money items," and that he expected the final contract to include some additional matters which the association had proposed. I see no need to expand this decision by quoting in detail the variances between the April 1971 proposals on the one hand and the December 1970 supplemental agreement read together with the previous contract on the other. Reviewing authorities can compare General Counsel's Exhibit 12 with General Counsel's Exhibits 2 and 11. In brief, the variances are as follows: 1. The 1971 proposal adds a sentence to section 13(b) on pensions dealing with the effect of a second default by an employer during a 12-month period. In general this provision was found in the contract the association proposed the preceding November and in the union proposal the preceding September. 2. The April 1971 proposal set forth in detail the provisions governing the new "Severance Fund." As noted above, the supplemental agreement referred to this as something "to be established." The 1971 proposal calls for a multiemployer fund, whereas the earlier agreement simply referred to "the parties" as establishing a fund "to be composed of Employer and Union trustees." However, the scale of employer contributions set forth in the December agreement is phrased as so much "per week per member." 3. The new section dealing with vacations omits the phrase "and terminal" from the preceding contract which had spelled out the employer's right to schedule the number of men "in each classification and terminal" who were to take vacations at a particular time. The phrase in question was also omitted from the association's proposal in November 1970 and from the Union's proposal in September 1970. It had been retained in all the Emery proposals in 1970. 4. As noted above, the December supplemental agree- ment called for a revision of the contract's provisions as to sick leave. The April 1971 proposal contains some additions to the previous contractual language. 5. The procedure governing selection of employer representatives to the Joint Grievance Settlement Board is substantially altered in the 1971 proposal. The old contract provided simply for "3 persons designated by the Employ- er." The proposed contract calls for designation by "the Employers signatory to this Agreement," provides for a meeting at which such designees shall be named, and expressly binds all signatory employers whether or not they attended that meeting. Also, the 1971 contract adds a second "Impartial Chairman" to the man named in the previous contract. The new provision governing employer designees is found in the association's 1970 proposal and in the Union's opening proposal in September 1970. 6. The old contract contained a provision governing leave of absence which is not found in the 1971 proposal. 7. The 1971 proposal contains a "Maintenance of Standards" clause not found in the prior agreement. These last two matters (omission of "leave of absence" and addition of "maintenance of standards") conform to the association's 1970 proposal, which in turn followed the Union's September 1970 proposal. D. Concluding Findings Under well-settled law, largely developed in cases arising under Section 8(a)(5), but equally applicable under Section 8(b)(3), a party is guilty of an unlawful refusal to bargain if, after reaching agreement on a contract, he refuses to embody his agreement in a signed written document. Section 8(d) of the Act; N.L.R.B. v. Brotherhood of Painters, 334 F.2d 729, 731 (C.A. 7, 1964); Standard Oil Co. v. N.L.R.B., 322 F.2d 40, 44 (C.A. 6, 1963). General Counsel invokes this principle here, contending that the Union and the Company reached agreement in December 1970, but that the written contract on which the Union insisted in April 1971 contained other provisions not previously agreed to. In general, I find meet in this contention and therefore conclude that the Union violated Section 8(b)(3).3 With respect to the sick leave and severance provisions, it may well be that the December agreement left matters open for precise phrasing and hence for disagreement in those limited areas. Certainly the Company's contention that it envisaged having its own separate severance fund is questionable since the December agreement called for contributions in stated amounts "per member."4 The provisions as to sick leave in the supplemental agreement are plainly not "final"; they call for the old contract "to be revised" in certain ways. Similarly, the details of the severance fund were left open. As to these two matters, therefore, I would not find that the parties had reached agreement in December 1970. It may be that the Union by adopting a "take it or leave it" attitude as to those matters in April 1971 was guilty of a failure to bargain in good faith, but I need not reach that matter here, and I note that the complaint does not appear to rest on that theory. 2 Some of the later maneuvering is described in Emery Air Freight Corp " The 1967 contract, which the Company regards as continuing under v Local295, 449 F 2d 586 (C A 2, I971) the 1970 supplemental agreement, provides for multiemployer participation 3 See also N L R B v Warehousemen 's Union Local 17, 451 F 2d 1240 in the health and welfare and pension funds (CA 9, 1971) 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the other variations between the April 1971 proposal and the December agreement, however, I can see no legitimate basis for the Union's position. The December agreement was to renew the expiring contract subject to certain specific changes. The changes proposed in April 1971 had been in a previous union proposal and had not appeared in company proposals. When the Union presented the supplemental agreement in December 1970 it in, effect abandoned the proposals it later resuscitated in April 1971. The Union argues that all it settled in December were the "economic issues." But the December agreement dealt with "sick leave," which is neither more nor less an "economic issue" than "vacations," the language as to which was changed in the April 1971 proposal. Similarly in December 1970 the parties agreed to a severance fund, which is neither more nor less "econom- ic" in character than the "pension" provisions as to which the Union presented a change in April 1971. It may well be that the new clauses as to the grievance procedure, the naming of an additional impartial chair- man, and providing for "maintenance of standards" are "procedural" rather than "economic." But there is no testimony in the record to support the Union's claim that in December it agreed with the Company only on economic issues and left other matters open .5 To be sure, counsel for the employer association testified that he regarded those matters as open, but he was not a party to the conversations between the Union and the Company, and the association did not purport to represent the Company or to bind it in any way. Gahegan on the witness stand quoted Davidoff, the union representative, as stating in December 1970; ". . . there isn't going to be any change in the black book," referring to the expiring contract. This testimony is not contradicted, as Davidoff was not called as a witness.6 The Union argues that the Company knew of the proposals advanced by the association in November 1970 to which the April 1971 proposal conformed. But the Company is not shown to have approved those proposals; its own proposals to the Union never contained the changes the Union now demands. As pointed out above, a fair interpretation suggests that the Union, which originat- ed these proposals in September 1970, had abandoned them. To be sure, the association in April 1971 did not resist signing the contract then proposed, but this shows no more than that the association was not standing on what may have been its legal rights. Also, the association had itself incorporated most of the new terms in its earlier proposals. The Union contends that the supplemental agreement was only "an agreement to agree" but was not a binding contract as it did not fix a termination date and contemplated further negotiations as to language on sick leave and severance pay. The two latter items, however, are not so essential a part of the contract that it falls without them. As to the other matters the Union proposed to change in April 1971, agreement had been reached. Even if the contract be regarded as not fully negotiated, it is a 5 Here , too, its "take-it-or-leave-it" approach would seem to taint its April 1971 conduct, but I do not reach that issue 6 The Union's failure to call Davidoff warrants the inference that his violation of the bargaining obligation to withdraw from agreements previously reached in the course of bargaining unless, as is not the case here, the withdrawal is part of the give and take of negotiations. Finally, while the December contract contained no expiration date, the past practice of the parties, and the inclusion of specified wage rate, pension, and severance payments to be effective on December 1 in 1970, 1971, and 1972, warrant the construction that the agreement was for a 3-year term. See also Brown's comment, quoted above, as he handed Davidoff the signed supplemental agreement that it would be "another three years" before they had to go through that again. Finally, the Union relies on statements allegedly made by Gahegan in November 1970 that the Company would sign whatever the other employers signed. Gahegan denied ever so stating. I am inclined to credit the testimony of Union Stewards Hunt and Moran that Gahegan did utter sentiments to that effect at that time. But all this establishes is that Gahegan was prepared to go along with the agreement which was executed in December 1970. Hunt and Moran also testified that at that time Gahegan indicated a lack of concern with the proposed changes in the grievance procedure, which were found in the Union and association proposals (but not in the Company's proposals) and later appeared in the April 1971 proposal. But Gahegan's casual remarks at that time cannot override the express language of the December 1970 agreement that the expiring contract was to be renewed with only the stated modifications. In any event, even if the grievance procedure changes be disregarded, the Union violated Section 8(b)(3) in April 1971 by insisting upon other changes in the contract. CONCLUSIONS OF LAW The Union, by insisting in April 1971 that the Company sign a contract which contained terms and conditions different from those to which the parties had previously agreed, engaged in an unfair labor practice affecting commerce within the meaning of Sections 8(b)(3) and 2(6) and (7) of the Act. THE REMEDY I shall recommend that the Union be ordered to cease and desist from its unfair labor practice. I see no need for affirmative relief. The parties have already signed the December 1970 agreement which by its terms continues in effect the expiring contract. Moreover, the parties have a right, indeed a duty, to bargain over details of the new severance fund. Finally, in the circumstances of this case, a notice posted either at the union offices or at the company premises would raise more questions than it would settle. In my judgment, effectuation of the policies of the Act in this case requires nothing more than an order directing the Union to stop its unlawful conduct and not to repeat it. If any of the parties or the Board itself deem further relief is in order, the matter can be handled at the Board level. Cf. testimony would not have supported the Union's position on this matter See Hesmer Foods, Inc, 161 NLRB 485,490, enfd 686 RRM2097, 56 LC ¶ 12,303 (C A 7,1967), cert denied, 391 U S'905, and authorities there cited LOCAL 295, TEAMSTERS 31 Curtiss-Wright Corp., 145 NLRB 152, 157-158, enfd. 347 [Recommended Order omitted from publication.] F.2d 61 (C.A. 3, 1965); Combined Paper Mills, Inc, 174 NLRB 483