Overnite Transportation Co., Inc.

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Overnite Transportation Company, Inc. and Chauf- feurs, Teamsters & Helpers Local Union No. 171, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 5-CA-3029 June 22, 1972 THIRD SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On March 7, 1972, Trial Examiner Louis Libbin issued the attached Decision in this proceeding. Thereafter, the Union filed exceptions and a support- ing 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 brief 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 this procoeeding be, and it hereby is, dismissed. TRIAL EXAMINER'S THIRD SUPPLEMENTAL DECISION STATEMENT OF THE CASE Louis LIBBIN, Trial Examiner: On July 22, 1971, the Board issued a Second Supplemental Decision and Order in the above-entitled backpay proceeding (192 NLRB No. 25), disagreeing with the Trial Examiner's holding that the following remedies sought by the Charging Party named in the caption, herein called the Union or the Teamsters, did not fall within the scope of the Board's original Order.' The Board thereupon held that the "remedies sought by the Union, i.e., Respondent to make contributions into the Union's pension, health, and welfare programs on behalf of the ex-Rutherford employees, and to abide by Ruther- ford's grievance procedure in disputes involving discharge of ex-Rutherford employees, are available under the Board's original Order." The Board then concluded that 1 157 NLRB 1185, enfd 372 F 2d 765 (C A 4), cert denied 389 U S 838 2 The parties were unable to agree on a mutually satisfactory earlier date 3 1 hereby grant Respondent 's request to receive in evidence and make part of the record the following Exhibits of Respondent I, the dates on which the nine employees were allegedly improperly discharged; 2, the "record before us, however, does not permit a determination of whether such remedies would be appro- priate in the circumstances of this case." The Board accordingly ordered this proceeding to be reopened and to be remanded for a further hearing "for the purpose of receiving evidence bearing on the issues noted above" and for the issuance by the Trial Examiner of a "Third Supplemental Decision, containing findings of fact, con- clusions of law and recommendations with respect to the remanded issues." On August 6, 1971, the Union filed with the Board a Motion for Reconsideration and Clarification, and on August 13 and 30, 1971, respectively, the General Counsel and the Respondent filed Memoranda to the Board in reply to the Union's motion. On October 21, 1971, the Board issued an Order denying the Union's Motion for Reconsideration and Clarification. Pursuant to due notice, a further hearing was then held before me in Roanoke, Virginia, on February 9, 1972.2 All parties were represented by counsel' who appeared and participated in the hearing. At the conclusion of the hearing, the parties waived the filing of briefs. For the reasons hereinafter indicated, I find that there is no showing that the requested remedies are approlinate in this case, and recommend that this proceeding be dismissed. Upon the entire record3 I hereby make the following: FINDINGS OF FACT The findings hereinafter set forth are based on credited evidence which is either undisputed or admitted. 1. THE UNION'S CASE The Union called as witnesses three ex-Rutherford employees, James Barber, Wilmer Towe, and James S. Harrison, who credibly testified as follows: Barber had been employed by Rutherford for about 16 years at the time of the takeover by Overnite. He continued to work for Overnite until his discharge about 2-1/2 years later. About a week after his discharge, he went to work for Bell Line and continued to work for its successor, Smith Transfer. Both Bell Line and Smith Transfer have contracts with the Union. He is presently earning $5.41 an hour and $13 a week are being contributed on his behalf to the Union's pension fund in Richmond, Virginia. Towe had been employed by Rutherford 12-1/2 years at the time of the takeover by Overnite. He continued to work for Overnite about 5 years and 2 weeks when he voluntarily left for a better job with McLean Trucking which has a contract with the Union. He is presently earning $5.41 an hour and $13 is the weekly contribution to the pension fund on his behalf. Harrison was employed by Rutherford at the Pulaski terminal at the time of the takeover, continued to work for Overnite, and was still so employed by Overnite at the time of his testimony in the instant hearing. In 1968, his wife Respondent's group life insurance policy in effect on November 19, 1964, 3, Respondent's group health and hospitalization plans in effect at that time, and 4, Respondent's pension plan in effect at that time. I also hereby note and correct the errors in the transcript. 197 NLRB No. 153 OVERNITE TRANSPORTATION CO., INC. 895 had a miscarriage. Because Overnite's insurance did not cover pregnancies, he had to pay the hospital bill of $190.70 and the doctor's fee of $50. While working for Rutherford, his wife gave birth to a daughter, and the Rutherford insurance plan paid all the hospital bills except $12 and all but $75 of the doctor's bill. While employed by Overnite, his daughter broke an arm, and Overnite's insurance paid 80 percent of the bill. The Union also introduced into evidence a copy of the Teamsters Joint Council No. 83 of Virginia, Health and Welfare Insurance Fund. Counsel for the Union also named six other ex-Rutherford employees who, along with the three mentioned in the prior hearing, allegedly were improperly discharged by Overnite. II. RESPONDENT'S CASE Respondent called as its witnesses Robert Mclnturff and Thomas Dickinson (Dickerson). At the time of the takeover by Overrate, Mclnturff was president of Ruther- ford. He continued with Overnite as assistant to its president. Dickinson was terminal manager at Roanoke, Virginia, both before and after the takeover by Overnite. Respondent offered, and was permitted, to adduce corro- borative testimony in the event that the testimony of Mclnturff were to be disputed by any subsequent union witnesses . His testimony was not disputed , as the Union called no further witnesses at the close of the Respondent's case. Mclnturff credibly testified as follows: Mclnturff was part of Respondent's negotiating team which began bargaining with the Union about 3 weeks after the takeover. The first bargaining session was held on January 12, 1965; the takeover was on November 19, 1964. Prior to the takeover, there were no provisions for grievances at Rutherford to be handled or processed at the local terminal level. When a grievance was filed, the first step was to submit it to a joint operator-union council consisting of the operators under contract with the Union and members of the Local unions . A carrier which did not have a contract with the Union could not be on the Council and could not have any grievance come up before the Council . So that any grievances which may have been filed after the expiration of Rutherford's contract could not be taken before the Council. The subject of v{hat kind of a grievance procedure to have came up in the first bargain- ing session and was discussed during and throughout the negotiations. Proposals and counterproposals on the subject were submitted and discussed . There is still no agreement on a grievance procedure . At none of the bargaining sessions did the Union ask Respondent to entertain any specific grievances or to discuss them as a bargaining matter . The Union did at times mention certain discharges in general terms and insist on their reinstate- ment. On such occasions , Respondent discussed the discharges and explained the reasons for them. The Union never filed any written grievances about them. Apart from the contract negotiations, the Union never asked Respondent to do anything with respect to health and welfare payments . As part of its overall contract proposals, the Union wanted Respondent to agree to the Union's health and welfare provisions and to make weekly payments into the fund in stated amounts which were greater than that paid by Rutherford. Mclnturff was unaware of any instance where an ex -Rutherford employee who suffered an illness, injury, hospitalization, or medical expense received less under the Overnite plan than under the Teamsters plan. The Union never asserted during the course of bargaining that any employee ever lost money under the plans because of the changeover from the Teamsters to Overnite's plan. With respect to pensions, the Teamsters plan was based on age and length of service, whereas Overnite's plan was based on three-fourths of 1 percent of the average earnings. In the negotiations, the Union asked Respondent to agree to the pension plan which the Union had in effect at the time and to make the $6 contributions into the fund referred to in the Teamsters' contract with the other carriers. Respondent's position was that it had a plan which it felt was better, on an overall basis, than the Union's. There was a general discussion on these plans. The Union wanted Respondent to contribute into the Fund because the men had built up past credits. However, the credits were not vested credits but only accumulated time. Respondent told the Union that it was giving the ex- Rutherford employees credit for their years of service with Rutherford insofar as the years of service were needed to qualify for a pension under Overnite's plan, and that Respondent was waiving the I-year grace period applied to new employees. The Union could give Respondent no assurance whether, if Respondent agreed to make the contributions into the Teamsters Pension Fund for the ex- Rutherford employees, as requested by the Union, such contributions would be accepted or whether, if accepted, they would accrue to the benefit of the employees for whom they were made. Roanoke and Pulaski, Virginia, were under the jurisdiction of the Teamsters Virginia Conference Pension Agreement , whereas Bristol, Virginia, was under the Teamsters Central States Conference Pension Agreement. After Overnite also took over the Bristol terminal from Rutherford, the Local at the Bristol terminal and the Central States Conference Plan worked out a tacking arrangement whereby the eligible employees drew pensions from both the Teamsters ' and Overnite's plans for the period they worked under each . Respondent informed the Union of this arrangement and tried, without success, to get the Union to work out a similar arrange- ment in the Virginia Fund or some situation which would give the ex-Rutherford employees some benefit from the money paid in by Rutherford on their behalf. Thomas Dickinson (Dickerson) credibly testified that he knew of no ex-Rutherford employee , who suffered any illness or injury, who received less under Overnite's plan than he would have received under the Union's plan while employed by Rutherford; that, on the other hand, he knew of some ex-Rutherford employees who received more under Overnite's plan ; and that no ex-Rutherford employ- ee ever complained that any medical payment he received was less than what he would have gotten under the old plan. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. CONTENTIONS OF THE PARTIES The General Counsel adduced no evidence and took no position on any of the remanded issues. The Union contends that the issue as to pensions and insurance is "a very simple one ," that all that has to be done is to require Respondent to make the contributions into the Teamsters pension , health and welfare programs, and that if for any reason that cannot be done because, for example, the plan will not accept Respondent's money, "then the Board does have to ,innovate. " As to the nine employees who, the Union claims, were "improperly discharged," the Union takes alternative positions. It contends ( 1) that the discharges constituted "a unilateral breach" and therefore the employees "ought to be reinstated with full back pay," and (2) that at least "it's a kind of an issue that should be submitted to the grievance procedure as set up under the Rutherford agreement." The Respondent contends that under the Rutherford contract, there Was no grievance procedure for processing a grievance at the terminal level, that the only grievance procedure under that contract called for the handling of grievances by a bi-state committee made up of contracting unionized carriers who had grouped together into an association and Teamsters union representatives , and that this was a grievance procedure to which Respondent, as a nonunion carrier, had not and could not have access. Moreover, Respondent contends that the fact that it has bargained with the Union in good faith after the takeover and before any of the alleged discharges occurred "would eliminate any idea that action taken thereafter was unilateral." As to welfare and insurance, Respondent contends that its plan, on an overall basis , is better than the Union's plan and that any payments which Respondent would make into the Union's Fund, assuming they would be accepted, would redound solely to the benefit of the Union and not to the ex -Rutherford employees on whose behalf they would be made. The same would also be true, the Respondent contends, with respect to any contri- butions made by Respondent to the Union 's Pension Fund, that is, that the employees involved would not receive any benefits from them. IV. CONCLUSIONS There is no merit to the Union's contention that the discharged employees should be reinstated with backpay because their discharge constituted a unilateral action. If that were so, the Board could have prescribed that remedy without the necessity of a remand . As for processing these discharges through the grievance procedure of the Ruther- ford contract, the undisputed evidence shows that the first step in that grievance procedure was the submission of the grievance to the joint operator-union Council and that a nonunion carrier like Respondent could not have access to this Council . As to the welfare and insurance plans, there is no way for determining whether Respondent's or the Union's program is of more benefit to the employees. The Union has adduced no evidence to indicate that the Teamsters Health and Welfare Insurance Fund and the Pension Fund would accept any contributions from Respondent or whether , if accepted, the ex-Rutherford employees would benefit by such contributions . As for the Union's suggestion that the Board should "innovate" in this respect, that is a procedure which the Board could have adopted without this remand if it were so inclined. Upon consideration of all the evidence , I find that the record fails to demonstrate that the requested remedies, in the words of the remand order, "would be appropriate in the circumstances of this case." RECOMMENDATIONS I recommend that the Board adopt the foregoing findings and conclusions and dismiss this proceeding.