Teamsters, Local No. 296

G TEAMSTERS, LOCAL NO. 296 Sales Delivery Drivers, Warehousemen & Helpers Union, Local No. 296, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America and Peninsula Creamery Sales Delivery Drivers, Warehousemen & Helpers Union, Local No. 296, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America and Piers Dairy. Cases 20-CB-2463'and 20-CB-2464 June 16, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 7, 1972, Trial Examiner Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and the General Counsel and Charging Party filed briefs in reply to Respondent's exceptions and 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,' 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, Sales Delivery Drivers, Warehouse- men & Helpers Union, Local 296, International Brotherhood' of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, Palo Alto, California, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommend- ed Order. I The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A. 3) We have carefully examined the record and find no basis for reversing his findings. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE STANLEY GILBERT, Trial Examiner: Based upon a charge 197 NLRB No. 95 619 filed in Case 20-CB-2463 by Peninsula Creamery, on April 22, 1971, and a charge filed in Case 20-CB-2464 on the same date by Piers Dairy, the consolidated complaint herein was issued on June 8, 1971. The complaint alleges that Sales Delivery Drivers, Warehousemen & Helpers Union, Local No. 296, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, hereinafter referred to as the Union or as the Respondent, violated Section 8(b)(3) of the National Labor Relations Act by refusing to be bound by and execute an agreement arrived at between it and the aforesaid companies. By its answer, Respondent denies that it committed the unfair labor practice alleged in the complaint. Pursuant to notice, a hearing was held in San Francisco, California, on October 14 and 15, 1971, before the duly designated Trial Examiner. All parties were represented by counsel and filed briefs within the time designated therefor. Upon the entire record in this proceeding and my observation of the witnesses as they testified, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES INVOLVED HEREIN Peninsula Creamery, a California corporation with a place of business in Palo Alto, California, has, at all times material herein, been engaged in the processing and retail and wholesale distribution of milk and milk related products. During the year preceding the issuance of the complaint, Peninsula Creamery, in the course and conduct of its business operations, purchased and received at its California facility goods and supplies valued in excess of $50,000, which were shipped directly from suppliers located outside the State of California. Piers Dairy, at all times material herein , has been a family operated business enterprise with a place of business located in Palo Alto, California, and has been engaged in the processing and retail and wholesale distribution of milk and milk related products. During the year preceding the issuance of the complaint, Piers Dairy, in the course and conduct of its business operations, sold and distributed products valued in excess of $50,000 to firms and businesses located within the State of California, which firms and businesses either sold and shipped merchandise valued in excess of $50,000 directly outside the State of California or received and purchased merchan- dise valued in excess of $50,000 directly from outside the State of California. As is conceded by Respondent, Peninsula Creamery and Piers Dairy are employers engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is admitted by Respondent, it is a labor organization within the meaning of Section 2(5) of the Act. 0 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICE consent, Piers and Peninsula withdrew from the associa- tion and bargained as a two-employer unit with Respon- dent following completion of negotiations between Joint Council No. 7 locals and the association. It appears from the record that for the 1970 negotiations the procedure which was agreed upon between Respondent and Piers and Peninsula and which was abided by was as follows: after a tentative master agreement and local supplements were negotiated by the Joint Council No. 7 locals and the association, which was called the "employer proposal," representatives of Respondent and representatives of Piers and Peninsula negotiated modifications of said employer proposal which, in effect, constituted the Piers and Peninsula "employer proposal." It was understood by the parties that a separate vote would be taken in the Palo Alto Division of Respondent to determine if the Piers and Peninsula employees accepted the Piers and Peninsula proposal (which embodied the so-called master agreement, the Respondent Local's supplement thereto and the modifications thereof negotiated by Piers and Peninsula). It was further understood that, in the event the Palo Alto Division voted to accept the Piers and Peninsula proposal, said proposal would constitute the collective-bargaining agreement between Respondent and Piers and Peninsula, provided the master agreement and the local supplements thereto were ratified by a total membership vote of the five locals in Joint Council No. 7. It appears that a 1-year contract, commencing in 1970, was executed by Respon- dent and Piers and Peninsula, since all of the foregoing conditions were met with respect to the 1970 negotiations. The General Counsel contends that the same procedure and conditions applied to the 1971 negotiations and that, since the conditions were met, Piers and Peninsula had arrived at a collective-bargaining agreement with Respon- dent. Respondent in its brief opposes this contention and in support of its opposition relies upon certain circum- stances and arguments which are set forth hereinbelow. As in the previous year, the negotiators in 1971 for Piers and Peninsula were John Santana, Jr., vice president of Peninsula, and Edson Piers, vice president of Piers, and the negotiators for Respondent were Ralph J. Tornsi, Respon- dent's business agent and president, and Henry de Diego, Respondent's secretary-treasurer. The negotiations for the master agreement and local supplements were completed in the early morning of March 31, 1971, and in the forenoon of that day the aforesaid negotiators for Piers and Peninsula and Respondent met to negotiate the modifications which would be applicable to Piers and Peninsula. The record discloses that Respondent's representatives were opposed to the acceptance of the master agreement and local supplements and indicated that opposition to Santana and Piers. The four negotiators spent 2 hours or so in working out modifications of the master agreement and local supplement which modifications would be applicable only to Piers and Peninsula. It appears that Torrisi and de Diego did not engage in hard bargaining and that they were looking for a vote from the Palo Alto Division turning down acceptance of the master agreement and local supplement as modified by the negotiations with Piers and Peninsula. The record also discloses that they were hoping It is alleged in the complaint that all drivers and plant workers employed by Peninsula Creamery and Piers Dairy constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. It is further alleged that at all times material herein Respondent has been the representative of the majority of the employees of Peninsula Creamery and Piers Dairy in the aforesaid bargaining unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment. By its answer, Respondent admits that it represents a majority of the employees in each of the aforesaid companies but denies that the employees of the two companies are an appropriate bargaining unit. Respondent further denies the allegation in the complaint that on or about March 31, 1971, it bargained collectively with Peninsula and Piers with respect to the above two- employer bargaining unit but alleges that it bargained with each employer individually. The record discloses, and in its brief Respondent concedes, that since early in 1970 Respondent has bargained with Piers and Peninsula for a "two-employer unit." It appears that the bargaining unit composed of the employees of the two employers is an appropriate bargaining unit. The issue in this case is whether or not, on or about March 31, 1971, Piers and Peninsula reached a collective- bargaining agreement with Respondent covering a period of 3 years, commencing in 1971. The record discloses that Respondent has refused to execute, and be bound by, the agreement for said period which General Counsel contends Piers and Peninsula had reached with Respondent. Respondent is one of five Teamsters locals in the Bay Area which comprise a subdivision of the International, which subdivision is referred to as Joint Council No. 7. Respondent has about 400 members employed in the dairy industry and Peninsula and Piers employ about 100 of said members. Respondent has two divisions, one called the San Jose Division and the other the Palo Alto Division. The latter is comprised of members who are employed by Piers and Peninsula. The San Jose Division is comprised of members who are employed by other employers which are apparently located in the San Jose area. For many years, Respondent has participated in a multiemployer-multiunion bargaining relationship for the purpose of negotiating collective-bargaining contracts with dairy employers whose employees it represented. Prior to 1970, the principal negotiations were conducted between a committee of representatives of the Joint Council No. 7 locals and spokesmen for the dairy employers' association. The agreement arrived at in such negotiations was referred to as the master agreement. In addition, so-called local supplements to the master agreement were negotiated which consisted of additional contract provision which were separately applicable to each local and the employers within its jurisdiction. Prior to 1970, Piers and Peninsula were members of the association of employers and were represented by it in bargaining negotiations. In 1970, apparently by mutual TEAMSTERS, LOCAL NO. 296 621 for a sufficiently large vote from their entire local (both the Palo Alto and San Jose Divisions) which would make the total negative vote of the five Joint Council No. 7 locals sufficient to defeat ratification of the master agreement and local supplements. There is contradiction in the testimony as to whether the union negotiators explained what conditions would have to be met in order for Piers and Peninsula and Respondent to have arrived at an agreement. According to the testimony of Tornsi and de Diego, nothing was said about the conditions, not even any mention of a change in the ground rules which were applicable to the 1970 negotia- tions. Based upon the credited testimony of Santana and Piers, it is found that it was mutually understood by the negotiators during their meeting on March 31, 1971, that if the Palo Alto Division voted to accept the Piers and Peninsula proposals and the total vote of the Joint Council No. 7 locals ratified the master agreement and local supplements, there would be a contract between Piers and Peninsula and Respondent. Later that day, at a meeting of the membership of the Palo Alto Division, the master agreement, local supple- ment, and the proposed modifications applicable to Piers and Peninsula were presented. The vote of the membership was 41 to accept and 39 to reject. These ballots were then taken to San Jose and a meeting of the membership of the San Jose Division then considered the master agreement and local supplement. The Piers and Peninsula proposals were not considered at the meeting of the San Jose Division. A vote was then taken of the San Jose membership and combined with the ballots of the Palo Alto Division. The totals of the two divisions were 96 "yes" and 155 "no." The votes of Respondent Local were then combined with the votes of the other four locals of Joint Council No. 7 and the totals were 556 "yes" and 234 "no." (It is noted that, although there was an overwhelming vote in favor of ratification, all that was required for ratification was one-third of the votes plus one, so that even though a majority of the Respondent Local's membership voted "no" the number of "no" votes was not sufficient to defeat ratification even if the votes of each local were considered on an individual basis.) Respondent's witnesses testified that they considered the submission of the Piers and Peninsula proposals to the Palo Alto Division merely to be advisory and not binding upon the Respondent. The record is clear that at no time at the meeting with Piers and Santana or at the meeting of the Palo Alto membership did the union representatives state that the vote of the Palo Alto Division would only be considered to be advisory. That this was not the under- standing of the negotiators or even in the minds of the representatives of the Union is further evidenced by the credited testimony of several of the Palo Alto members who testified that de Diego and Torrisi were upset by the vote and Torrisi angrily made a statement to the effect that the - Palo Alto membership had bought themselves a contract (apparently anticipating that the master agree- ment and local supplements would be ratified by the entire vote of the Joint Council No. 7 locals). Respondent in its brief argues that it cannot be reasonably inferred that Respondent's representatives would hold themselves out to be bound by a ratification vote of the Palo Alto Division while at the same time indicating that they were hoping to secure a strong turndown vote. It is true that they did so indicate that they wanted the Joint Council No. 7 locals to vote against ratification and informed Piers and Santana that they would recommend that their Palo Alto membership turn down the Piers and Peninsula proposals, but it is further noted that in the negotiations of the previous year they also informed Piers and Santana that they would recommend to their Palo Alto members that they turn down the Piers and Peninsula proposals. The Respondent fails to explain satisfactorily why in 1970 despite their notification to Piers and Santana of their negative recommendation there was, nevertheless, a contract and, in 1971, because of their so indicating a negative recommendation, there was not a contract. It is inferred from the record that the reason for Respondent's change in position with respect to the 1971 contract was that there were complaints lodged by other locals and some employers because of certain more favorable terms in the Piers and Peninsula modifications. The record clearly discloses that there was no understand- ing between Respondent and Piers and Peninsula that, even if the Piers and Pemnsula proposals were accepted and the master agreement and local supplements were ratified, there, nevertheless, would be no contract between Piers and Peninsula and Respondent unless' there was acquiescence in the Piers and Peninsula modifications by the membership of Respondent Local as a whole,' by the other locals of Joint Council No. 7, or by other employers. It is concluded that in the negotiation meeting of March 31, 1971, the representatives mutually understood that if the Palo Alto Division membership voted to accept Piers and Peninsula proposals and the Joint Council No. 7 locals ratified the master agreement and local supplements, there was a contract between Peninsula and Piers and Respon- dent. These conditions were met and, therefore, an agreement was arrived at on or about March 31, 1971. It is further concluded that by refusing to execute a written contract embodying the terms of the aforesaid agreement arrived at on or about March 31, 1971, and be bound by it, Respondent is violating Section 8(b)(3) of the Act.2 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The unfair labor practice of the Respondent set forth in section III, above, occurring in connection with the activities of the Charging Parties descnbed in section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow thereof. 1 It is noted that at the meeting of the San Jose Division there was no consideration given to the Piers and Peninsula proposals. 2 In its brief Respondent concedes that a union is not "free to disregard a ratification vote if, in negotiations with an employer, it is agreed by both parties that such a vote shall be determinative " 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY It having been found that the Respondent has engaged in conduct violative of Section 8(b)(3) of the Act, it will be recommended that it be ordered to 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. All drivers and plant workers employed by Peninsula Creamery and Piers Dairy constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times material herein, Respondent has been the representative of the majority of the employees in the above-described unit for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment. 3. On or about March 31, 1971, Respondent and Peninsula Creamery and Piers Dairy arrived at a complete agreement on all of the terms of a collective-bargaining contract covering the employees in the aforesaid bargain- ing unit. 4. By refusing to be bound by the terms of the aforesaid collective-bargaining agreement and to execute a written contract embodying the terms thereby, Respondent has engaged in, and is engaging in, an unfair labor practice within the meaning of Section 8(b)(3) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:3 ORDER Respondent, Sales Delivery Drivers, Warehousemen & Helpers Union, Local No. 296, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to give full force and effect to the agreement it arrived at with Peninsula Creamery and Piers Dairy on or about March 31, 1971. (b) Refusing to execute a written contract embodying the terms of the aforesaid agreement. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Notify, in writing, Peninsula Creamery and Piers Dairy that it will adhere to and be bound by the terms of the agreement it arrived at with said companies on or about March 31, 1971. (b) Execute written contracts with said companies embodying the terms of said agreement and abide by it. (c) Post at its offices and meeting hall or halls copies of the attached notice marked "Appendix."4 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 Peninsula Creamery and Piers Dairy, the Charging Parties, at their places of business, if said Employers are willing. (e) Notify said Regional Director, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.5 3 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. 4 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 read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 5 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 NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to give full force and effect to the collective-bargaining agreement we arrived at with Peninsula Creamery and Piers Dairy on or about March 31, 1971, covering the employees in the following described unit: All drivers and plant workers employed by Peninsula Creamery and Piers Dairy. WE WILL notify, in writing, each of the above-named Employers that we will adhere to and be bound by the terms of said agreement for the term provided therein. WE WILL execute contracts with said Employers embodying the terms of said agreement and abide by it. SALES DELIVERY DRIVERS, WAREHOUSEMEN & HELPERS UNION, LOCAL No. 296, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA (Labor Organization) Dated By (Representative) (Title) TEAMSTERS, LOCAL NO. 296' 623 This is an official notice and must not be defaced by ing this notice or compliance with its provisions may be anyone . directed to the Board's Office, 13018 Federal Building, 450 This notice must remain posted for 60 consecutive days Golden Gate Avenue , Box 36047, San Francisco, Califor- from the date of posting and must not be altered , defaced, nia 94102, Telephone 415-556-3197. or covered by any other material . Any questions concern-