Jensen's Truck Stop

JENSEN'S TRUCK STOP Bosse, Inc., d/b/a Jensen's Truck Stop and General Truck Drivers, Warehousemen and Helpers Union, Local 980, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 20-CA-12394 January 30, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On September 30, 1977, Administrative Law Judge William J. Pannier III issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed a brief in support of the Administrative Law Judge's Decision. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge 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 Administrative Law Judge and hereby orders that the complaint is dismissed in its entirety. : The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge: This matter was heard by me in Ukiah, California, on June 9, 1977. On March 17, 1977, the Regional Director for Region 20 of the National Labor Relations Board issued a complaint and notice of hearing based on an unfair labor practice charge filed on January 24, 1977, alleging viola- tions of Section 8(aX)(1) and (5) of the National Labor I Respondent also operates a similar establishment in Dunagan, Califor- nia: Bosse, Inc., d/b/a Dunagan Truck Stop. I The unit was all gas station attendants and cashiers employed by 234 NLRB No. 93 Relations Act, as amended, 29 U.S.C., § 151, et seq., herein called the Act. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs. Based on the entire record, upon the briefs filed on behalf of the parties, and upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION At all times material, Bosse, Inc., d/b/a Jensen's Truck Stop, herein called Respondent, has been a California corporation, having a place of business in Ukiah, Californi- a,' where it engages in the retail sale of diesel fuel and gasoline. During the past 12 months, Respondent derived gross revenues in excess of $500,000 from its operations and, additionally, purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of California. Therefore, I find, as admitted in the answer to complaint, that at all times material, Respondent has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II1. THE LABOR OROANIZATION INVOLVED At all times material, General Truck Drivers, Ware- housemen and Helpers Union, Local 980, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, has been a labor organization within the meaning of Section 2(5) of the Act. III. ISSUE Whether Respondent violated Section 8(aX5) and (1) of the Act by failing and refusing to sign a written collective- bargaining agreement embodying a provision for shift differential pay, as agreed upon by the parties during negotiations. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Following certification 2 on September 16, 1976, 3 the Union participated in five negotiating sessions (September 29, October 15 and 21, and November 9 and 29) with Respondent. Agreement was reached on the terms of a contract at the final session. Thereafter, there were three telephone conversations between Respondent's negotiator, Jack M. Harper, and Business Agent Charles Green, the Union's principal spokesperson during the negotiations, resulting in a dispute over whether there had been agreement to include a shift differential payment provision in the contract. This is the only issue presented by the Respondent at its 1460 Lovers Lane, Ukiah, California, location, excluding office clerical employees, guards and supervisors as defined in the Act. 3 Unless otherwise stated, al dates occurred in 1976. 567 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint. Accordingly, without regard to whether or not the parties were acting in good faith during bargaining, under Board policy and in view of Section 3(d) of the Act's mandate with regard to the General Counsel's authority over issuance of complaints, this Decision must be con- fined to the question of whether there was or was not such agreement. Shreveport Garment Manufacturers, 133 NLRB 117, 119 (1961). "Respondent was never put on notice that [a more broadly based] violation was in issue." Andres Oldsmobile, Inc., 230 NLRB 1191 (1977); accord: Medicine Bow Coal Company, 217 NLRB 931, fn. 2 (1975); contra: Alexander Dawson, Inc. d/b/a Alexander's Restaurant and Lounge, 228 NLRB 165 (1977). In resolving this issue, I am convinced that not one of the witnesses who appeared at this hearing was fully candid, with some being less so than others; and that all of them attempted to tailor, to a greater or lesser extent, their recitations of events to conform to the positions of the parties whom they supported and, in the case of Green and Harper, to avoid the embarrassing positions in which they, notwithstanding their experience as negotiators, found themselves. Accordingly, the factual findings are based upon a careful analysis of all testimony advanced in light of the demeanor of each witness in advancing that particular testimony. Prior to the initial meeting, Respondent's employees had been working a 5-day, 12-hour-a-day workweek. However, a state law was to become effective on October 18, making payment of overtime rates mandatory for all time worked in excess of 8 hours a day. According to Green, Respon- dent had posted a notice announcing that the workweek would be changed to one of six 8-hour days and the Union had protested this change by letter. The Union also had submitted a written proposal embodying a 5-day, 12-hour- a-day workweek provision. These events formed the back- ground for the September 29 meeting at which, testified Green, Harper had initiated discussion of the workweek issue by commenting "to the effect that because of the new state laws that they would have to put in their new shifts, and we disagreed at that point of changing shifts at any time in our first meeting." This subject, however, was then brushed aside when the parties fell to arguing over whether a union-security clause should be included in their con- tract, with Green pointing out that there was such a a clause in the contract covering employees at the Dunagan facility. At the second meeting, on October 15,4 Harper made a proposal regarding the workweek which, he testified, had been designed "to get the Union off its demand for a 60- 4 The Union contends that this meeting commenced at 2 p.m., while Respondent asserts that it began at 10 a.m. I make no finding on this point as I do not regard it as material. It should, however, be noted that either side could be accurate based upon the testimony presented. Thus, while the meeting had been scheduled originally to commence at 10 a.m., Harper did not dispute Green's testimony that it had then been rescheduled to 2 p.m., because of a conflicting preelection hearing scheduled to commence at 10 a.m. that day. The fact that Ralph Bosse had to drive for 2 hours to reach Ukiah is not as significant as Respondent argues, for, as president of Respondent, he quite likely would have made the drive in any event for purposes connected with operating Respondent. Conversely, the General Counsel acknowledges that the schedule conflict was removed on October 13 when a Stipulation for Certification Upon Consent Election was executed, thereby obviating the need for a preelection hearing. Inasmuch as hour work week."5 This proposal combined the proposed workweek change to six 8-hour days with a proposal for shift differential payments for second- and third-shift employees of 10 cents and 15 cents, respectively. Green responded by asking if the amounts were negotiable and, receiving no reply, then passed on to renewed discussion of union security. This ended discussion of shift differential for the duration of the meeting. In making these findings regarding Respondent's Octo- ber 15 workweek and shift differential proposal, I do not credit the testimony of former cashier Julia Soinila, who had accompanied Green during these negotiations, that Green had accepted Respondent's proposal. Not only is this inconsistent with Green's own account of his response, but, as the shift differential was coupled with workweek in a package proposal, acceptance would have ended further negotiations regarding workweek, as well as shift differen- tial. Quite clearly this was not the case, for negotiations regarding workweek took place at all remaining meetings. Similarly, I do not credit Respondent's witnesses' asser- tions that the proposal had been withdrawn specifically later that same day. It is undisputed that in conversations occurring after November 29 regarding shift differential both Harper, Respondent's negotiator, and Ralph Bosse, Respondent's president and the official who possessed authority to grant final approval of any agreement reached, had accused Green of having rejected this proposal. Neither of these two most central figures on Respondent's side had asserted during these conversations that the proposal had been specifically withdrawn. Yet, had this been the case at least one of them would seemingly have pointed that fact out to Green while arguing with him that there had been no agreement on shift differential. In short, Respondent's postagreement conversations with Green tend to support my ultimate finding in this matter that Green's response to the October 15 proposal had led Respondent to believe that it was unacceptable and could possibly be more costly than Respondent had anticipated; that Respondent then pursued negotiations concerning workweek without further consideration of shift differen- tial; that Green's subsequent resurrection of the shift differential portion of the proposal brought to light that it had never been retracted specifically; and that, in an effort to fortify their position that there had never been agree- ment on shift differential, Respondent's officials embell- ished their testimony in this instance by creating a withdrawal comment that had never been made. One other topic of significance arose during the October 15 meeting. Harper testified that at this meeting he had Green conceded that Harper had previously told him that he (Harper) had intended to be in Ukiah on October 15 in any event, it is not inconceivable that the meeting would then have been rescheduled again; this time back to the original 10 a.m. starting time. s I do not credit the testimony of Respondent's witnesses that Harper had failed to discuss this proposal with Respondent's officials before offering it to the Union. Harper is an experienced negotiator and he conceded that it had been his practice to review proposals with his client before making them. Further, shift differential is a monetary item which, if accepted, would of necessity have a financial impact upon Respondent. In these circumstances, I rind it highly unlikely that Harper would have deviated from his normal practice to make a proposal of this significance without first having cleared its acceptability with his client. 568 JENSEN'S TRUCK STOP informed Green that any agreements reached were subject to, inter alia, Ralph Bosse's approval. Green denied that he had been so advised and contended that Harper had not made mention of this fact until much later. However, on this point, I credit Harper and find that it was Green who was attempting to buttress his position by his testimony in this area. Harper testified that pursuant to his employer's policy he customarily informs unions, upon entering negotiations, that his authority is limited to the extent that his principal's approval is necessary for final agreements to be attained. 6 Green had negotiated with Harper in the past and his testimony that he could not "recollect" Harper having ever given notice of his limited authority during these past negotiations was unpersuasive both in substance and in tenor. Moreover, his testimony as to when Harper had assertedly first advised him of the limitation was equivocal: "I would say probably at our fourth meeting [November 9], and maybe even later. I don't recall him coming right out and saying anything." Yet, the proposals submitted by Harper on October 21 each carried a qualifying statement that it was "recommended for adop- tion subject to agreement on the contract as a whole, and ratification of. . . [the] chief executive of the Employer." Green had signed beneath this legend on each proposal submitted by Respondent. In these circumstances, it is clear that Harper was not hiding the limitation on his authority, that Green had been put on notice of that limitation, and that the circumstantial evidence supports Harper's testimony that he had advised Green specifically of that fact, as was his custom, on October 15. 1 so find. The subject of shift differential was never discussed during the remaining three meetings. However, the work- week was a subject of repeated negotiations between the parties.7 Of significance is the meeting of October 21. In responding to the Union's October 15 renewal of its continued 60-hour workweek proposal, Harper proposed the "same language as contained in the employer's Duna- gan contract" at the October 21 meeting. The Dunagan contract, with which Green was familiar as illustrated by his own reference to it on September 29 in connection with the discussion of union security, provides for a workweek s Harper testified that the dispute over workweek and union security had diverted him from making such an announcement at the September 29 meeting. In light of what had transpired at that meeting. I find that explanation both logical and credible. I In this area, Green again attempted to enhance his position by tailoring his testimony. Thus, in an effort to nullify any possible adverse effect of the absence of discussion of shift differential at the November 29 meeting, where agreement on a contract had been reached, he testified that only the four subjects left in dispute at that point had been covered during that meeting. He identified these disputed subjects as being sick leave, a cashiers' clause, union security, and leave for holidays and funerals. Thus, if credited, this testimony would mean that the workweek, to which shift differential had been appended in Respondent's October 15 proposal, had no longer been a disputed issue at the last meeting. Yet, a careful examination of Green's own testimony on the progress of negotiations regarding workweek shows that not to have been the fact, for he testified that "in the third and fourth meetings, we had been changing our positions" and, further, that on November 9 the Union had "asked that Charlie Anderson and Virgil Riley remain on 12-hour shifts, and all other employees stay at the six eight hour shifts [sic i. We modified it that far." In view of this testimony as to where things stood as of the end of the November 9 session and in light of the fact that Respondent's proposed 48-hour workweek was ultimately agreed upon by the parties, it is difficult to perceive how the workweek could not have remained in dispute and been discussed on November 29. The record is of six 8-hour days, with time and a half for hours worked in excess of 40 hours per week, but makes no provision for shift differential. Having attained final agreement, Green had then been faced with the task of submitting that agreement to the employees for a ratification vote. "As I was putting my notes together to present to the employees," testified Green, "I came across a couple of questions that I wasn't sure of. One of them again was the cashier thing that I wanted to discuss, and the other was the shift differen- tial." 8 Green called Harper, pointing out that there had never been a specific withdrawal of the proposal of shift differential. On direct examination, Green testified that, in reply, "Harper agreed at that point that yes, it was on the table and they had not taken it off. He says, go ahead, and present it to the employees." This seemingly clear acquies- cence by Harper became less clear on redirect examination when, as part of his effort to avoid conceding awareness of the limitation on Harper's authority, Green testified that Harper had responded, "[t]hat as far as he could remem- ber, yes, they had put in on the table, they had not taken it off the table. And he says, 'Yeah. Go ahead and vote it.' And he would talk to the employer." (Emphasis supplied.)9 Both actions were carried out. Green presented the shift differential as part of the contract which was then deemed ratified by the employees. Harper presented the same subject to Ralph Bosse who refused to agree to its inclusion in the contract. With the matter in this posture, Harper prepared the final contracts for signature. Upon discovering, in addition to several errors, that no shift differential clause had been included, Green telephoned Harper. At this point the issue was joined, with Harper asserting that the Union had rejected the proposal and with Green countering that the Union had only asked if the proposed amounts were negotiable. Devoid of the embellishments provided by both sides at the hearing, I find that this is the essence of the conflict presented. devoid of any evidence showing that the agreement to a 6-day, 8-hour-a-day workweek was achieved on any other occasion. s Green was cross-examined at some length with regard to why, if he had believed that there had been agreement to shift differential, he had felt compelled to contact Harper to question whether it was to be included in the contract. After initially equivocating in an effort to avoid a direct answer, Green conceded that this had been one of the issues about which he had felt uncertain, because "the employer had put the articles on the table at that first meeting. They had not removed it from the first meeting. And I wanted to be satisfied in my own mind, when I did present it to the employees, that it was not removed from there." 9 I find Harper's testimony that, in response to Green's announced intent to submit shift differential to ratification, he had said "If that's what he wanted to do, I didn't have any control over it" not to be credible. As was evident throughout the hearing, Respondent had been most concerned with the propriety of the Union's ratification procedures. During negotiations, Harper had displayed such concern about the matter that he had presented proposals which were to be submitted to the employees for ratification before binding agreement would be deemed to exist. In these circumstances, I find it highly improbable that he would cavalierly dismiss, as beyond his control, an announcement that the employees were to be told that a provision on which no agreement had been reached was to be part of the contract with Respondent if they ratified the agreement 569 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Discussion While there was no announced time limit to Respon- dent's October 15 proposal, an offer unlimited as to time is "by elementary principles of law, open for a reasonable length of time." Tanner Motor Livery, Ltd., 160 NLRB 1669, 1681 (1966). Here, to minimize the impact of a soon- to-be-effective change in overtime law, Respondent had been attempting to change its weekly work schedule. This change had been opposed by the Union. Thus, in an effort "to get the Union off its demand for a 60-hour work week," Respondent had formulated the shift differential proposal as a sweetener and had added it to its previously proposed revision in the workweek, thereby offering a package deal. While the Union did not reject the proposal, neither did it accept it as Respondent had hoped that it would do. Accordingly, Respondent had failed to attain the desired agreement to change the workweek prior to the effective date of the new state law. Since this had been the basis for adding shift differential to the workweek proposal, it was not unreasonable for Respondent to then delete that portion from the package following the Union's failure to accept it and the passage of the effective date of the overtime law. This it did, for on October 21, Respondent made a workweek proposal on the basis of the Dunagan contract which contains no shift differential. The complaint does not charge Respondent with acting for other than legitimate considerations. As the Union had failed to accept the package proposal on October 15 and inasmuch as the new overtime law had become effective, the October 21 offer had been no more than "a legitimate reaction to a change in the conditions which existed at the time [of the proposal]." Vulcan Steel Tank Corporation, 106 NLRB 1278, 1279 (1953). Parties are simply not "rigidly bound to each and every tentative decision reached," R. J. Oil & Refining Co., Inc., 108 NLRB 641, 643 (1954), and, concomitantly, neither are they rigidly bound to each and every proposal made. Nor does the disparity of Respon- dent's October 21 proposal - occasioned by deletion of the shift differential portion of the prior proposal - mandate a different result, for the offer was made after Respondent "had abandoned the 'package deal' as a basis for agreement and .... is explainable on the ground that each was made in a different context." Stoner Rubber Company, Inc., 123 NLRB 1440, 1443 (1959). Therefore, in light of the circumstances which motivated the shift differential offer, the Union's failure to accept it on October 15 as desired by Respondent in offering it, the passage of the effective date for the overtime law, and the October 21 proposal of a workweek provision on the same terms as in the Dunagan contract which contains no shift differential provision, I find that Respondent no longer had shift differential in mind when it arrived at agreement on November 29. Moreover, while the Union was never told specifically that the shift differential portion of the October 15 proposal was no longer being offered by Respondent, the latter's preclusion of it from consideration is sufficient to prevent a finding that there was a meeting of the minds upon its inclusion on November 29. In any event, the Union must certainly have been aware that no shift differential was being offered by October 21, since there was no such provision in the Dunagan contract, with which the Union had displayed familiarity on Septem- ber 29 and which was relied upon by Harper for his workweek proposal at that meeting. Further, Green's belated discovery of the October 15 offer, upon reviewing his notes for the ratification meeting, and his uncertainty as to whether it had ever been specifically withdrawn demon- strates that he had reached agreement on November 29 without regard to shift differential, and that it had not been a consideration influencing his ultimate assent to Respon- dent's October 21 workweek offer. Consequently, there had been no agreement to include shift differential when a contract was agreed upon on November 29, because Respondent had deemed it no longer offered after October 15 and because Green had long forgotten that it had been offered, having continued negotiations without regard to it as a subject for consideration. In short, there had been no meeting of the minds on shift differential because it was not on the mind of either party. This then leads to consideration of the effect of Harper's postagreement telephone admission that the shift differen- tial portion of the October 15 offer had never been specifically withdrawn and of his suggestion that Green include it among the items submitted to the employees for ratification. It is apparent that at the time of this conversa- tion Harper had been surprised when Green had resur- rected this now-dated proposal and that he was uncertain of the effect of his failure to have withdrawn it specifically. Nonetheless, had he possessed full authority to make commitments binding upon Respondent, his comments during that converation would have sufficed to form an agreement on inclusion of shift differential. However, he did not possess that authority. That authority resided with Ralph Bosse and there is no evidence that the latter had ever assented to inclusion of shift differential after the Union had failed to accept the October 15 package proposal. This arrangement whereby Ralph Bosse retained author- ity to accept or to reject agreements before they became binding upon Respondent has not been challenged as being an unfair labor practice. Nor would such a challenge be meritorious. See Gu/f States Canners, Inc., 224 NLRB 1566, 1576-77 (1976); Printing Industries of Northern California, 204 NLRB 329, 333-334 (1973); see also discussion and cases cited in The Anaconda Company, 224 NLRB 1041, 1051 (1976). As found above, by virtue of his prior negotiations with Harper, of the statements made by Harper on October 15, and of the qualifying statements on Respondent's October 21 proposals, Green was on notice of this limitation on Harper's authority well before the two conversed on the telephone following the November 29 meeting. Moreover, as shown by what appears to have been an inadvertent admission of a matter which he had earlier attempted to avoid acknowledging having been said, Green conceded that during this conversation Harper had stated specifically that he "would talk to the employer" about including a shift differential provision in the con- tract. Such a comment could have referred to nothing other than Harper's need to secure Ralph Bosse's approval for 570 JENSEN'S TRUCK STOP final agreement on the matter. While the latter appears to have taken some time weighing his final decisions, 0 he ultimately rejected any modification of the contract to add a shift differential provision. Therefore, it cannot be said that a final agreement to include shift differential was achieved as a result of the post-November 29 events. See Harry R. Pickett and Eva M. Pickett d/b/a F & J Wire Products Co., 174 NLRB 340 (1969). Accordingly, I shall grant Respondent's motion to dismiss the complaint. CONCLUSIONS OF LAW 1. Bosse, Inc., d/b/a Jensen's Truck Stop, is an em- ployer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. O1 Twice in December, Manager Everett Bosse told cashier Jean Chadwick that no decision or agreement had yet been made on shif differential, but had assured her that if it were included in the contract, it would be retroactive. Such comments support my finding that Ralph Bosse was considering, but had not yet consented to, shift differential in December. 2. General Truck Drivers, Warehousemen and Helpers Union, Local 980, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not violated the Act in any manner alleged in the complaint. On the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER" It is hereby ordered that the complaint be, and it hereby is, dismissed in its entirety. 11 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. 571