Teckwal Corp.

I'FTCKWAIL C()RI) Teckwal Corp. and Chauffeurs, Teamsters, Warehou- semen and Helpers, Local Union No. 301, affili- ated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 13-CA- 19074 November 3, 1980 DECISION AND ORDER BY CHAIRMAN FANNING ANDI MIAMBtRS JENKINS AND PNIO:I.O On June 30, 1980, Administrative Law Judge Robert M. Schwarzbart issued the attached Dcci- sion in this proceeding. Thereafter. Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. AMINDFD REFiM)NI ' The Administrative Law Judge, in recommend- ing that Respondent make its employees whole for any loss of earnings suffered because of Respond- ent's failure to sign and implement the agreement reached between the Union and the Material Han- dling Employers Association, recommended the backpay be computed in accordance with F W. Woolworth Company, 90 NLRB 289 (1950). We shall order that backpay be computed in a manner consistent with Board policy as set forth in Ogle Protection Service, Inc., and James L. Ogle, an Indi- vidual, 183 NLRB 682 (1970), with interest as pre- scribed in Florida Steel Corporation, 231 NLRB 651 i Respondenl has excepted to certain credibility findings made by the Administratlne I.av. Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- hility unless the clear preponderance of all of the relevant evidence con- ,inces us that the resolutions are incorrect Standard Drv Wall Products. Inc., 91 NLRB 544 (1950). enfd 188 F2d 362 (3d Cir. 1951) We hase carefully examined the record and find no hasis for reversing his findings Addilionally Respondent asserts that the Administrative Lasw Judge's findings are the result of bias After a careful examination of the entire record. we are satisfied that this allegation is without merit In the section of his Decision entitled "The Remedy." the Administra- tive Law Judge erroneousls states that "Respondent." not the Union. argued that due to Respoldetil's frivolous defenses the remeds herein should provide for reimbursement of the l nmon ' litigation expenses Oh- viously. it 'was lie Union that argued in its brief fir the payment of its litigation expenses We note and correct the Adminisiratlse Law, Judge's Inadserteni error (1977). (See, generally, lsiv Plumbing & Heating Co., 138 NLRB 716 (1962)).2 The Administrative Law Judge also recommend- ed that Respondent reimburse the Union for the reasonable litigation costs it incurred in connection with the litigation of this proceeding. Unlike the Administrative Law Judge, we do not find Re- spondent's defenses to be "neither substantive nor 'occasioned by a reasonably debatable point of view"' as set forth in Wellman Industries, Inc., 248 NLRB 325 (1980), and Hecks Inc., 215 NLRB 765 (1974). Accordingly, we shall not order Respond- ent to reimburse the Union for its reasonable litiga- tion costs. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as mended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Teckwal Corp., Gilmer, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 2(b): "(b) Make whole, with interest, its employees in the above-described bargaining unit for any loss of pay or other employment benefits which they may have suffered by reason of Respondent's refusal to sign and implement the aforesaid agreement in the manner set forth in Ogle Protection Service, Inc.. and James L. Ogle', an Individual, 183 NLRB 682 (1970), with interest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977) (see, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962))." 2. Delete paragraph 2(c) and reletter the subse- quent paragraphs accordingly. 3. Substitute the attached notice for that of the Administrative Law Judge. 2 Member Jenkins ssould award interest on the backpay due in accord- arnce sith his dissent in Olympic .ledical Corploraion 250 NI RB 14t 198(O) APPENDIX No-ricE To EMPLOYE ES POSTI-D BY ORDER OF THE NATIONAI. LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. 253 NLRB No. 22 117 DECISIONS ()F NATIONAl I.A()OR R.A'I ()NS BO()ARD Wt Will. NO'r refuse to bargain with Chauf- feurs, Teamsters, Warehousemen and Helpers, Local Union No. 301, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, by re- fusing to sign and implement the contract, ef- fective June 1, 1979, through May 31, 1982, between the above-named Union and the member-employers of the Material Handling Employers Association. WiL W.l NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the National abor Rela- tions Act, as amended. WiE wit i. forthwith sign and implement the above-mentioned contract and give retroactive effect thereto from June 1, 1979. WI. witli make whole, with interest, our employees in the appropriate bargaining unit described and set forth in the aforesaid collec- tive-bargaining agreement for any loss of pay or other employee benefits they may have suf- fered by reason of our refusal to sign and to implement the contract. TItKW AI CORP. DECISION S1A I TMI NI OF I H}l CASI ROBeRT M. SCI\W,sRZXART, Administrative Law Judge: This case was heard in Chicago, Illinois, on March 20 and 21, 1980, on a complaint issued October 19, 1979,1 based on a charge filed on August 30 by Chauffeurs, Teamsters, Warehousemen and Helpers, Local Union No. 301, affiliated with International Broth- erhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, herein the Union or Local 301. The complaint alleges that the Respondent attempted untime- ly withdrawal of its membership in a multiemployer bar- gaining association and thereafter refused to execute, to be bound by, and to effectuate the collective-bargaining agreement negotiated between the Union and the em- ployer association, in violation of Sectiotn 8(a)(5) and (I) of the National Labor Relations Act, as amended, herein called the Act. The Respondent, m its answer, denied the commission of unfair labor practices. All parties appeared at the hearing, were represented by counsel, and were given the opportunity to be heard, to present evidence, to examine and cross-examine wit- nesses, and to file briefs. Briefs, thereafter filed by the General Counsel, the Respondent, and the Union, have been carefully considered. I All dates hereinafter are within 179 ) nless stated it( be otherwise Upon the entire record, " the briefs of the parties:' and my observation of the witnesses, I make the following FINI)IN(S 01 FAC I 1. I lil: lSINItSS ()I Ill- RSPONDI N The Respondent, an Illinois corporation, is engaged in the noliretail sale and distribution of construction materi- als at its Gilmer, Illinois facility. During the calendar year preceding issuance of the complaint herein, a repre- sentative period, the Respondent in the course and con- duct of its business operations purchased and received goods at its Gilmer facility, valued in excess of $50,0(X), directly from points located outside the State of Illinois. In accordance with the foregoing conceded facts, I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. iI. '111 I.AHOR ORGANIZA ION INVOI V Il) The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 111. I fl Al I (it 1) UNI AIR I liOR R XACI 'I S A. Background The Respondent, established in 1969, is engaged il the manufacture and sale of building components and the sale of luntber at its sole yard in Gilmer, Illinois, where it employs carpenters. carpenters' helpers and truck- drivers. On November 3, 1978, in Case 13-RC-14900, the Board's Regional Director issued a Certification of Rep- resentative establishing Building Material, Lumber. Box, Shaving Roofing and Insulating, Chauffeurs, Teamsters, Warehousemen and Helpers Union, Local 786 of the In- ternational Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called Local 2 At the t rlioll's motion durinig hile haring, I truck hie iirt aftirma- lied defense fron Ie ans l er, i hlch alleged hat the ti )lon has failed aiid refisL d t hargii i] S tLd fatih Ill iolatlir of SCc 8(b 3() of tlc Act. and al so struck so much of prigraph XIV of the alts er as corre- spolid gl ;alleged thait the R espoldeit "has refused to execute al agree- menlc hich as reached through illegal pralictes hby tht Lhiorn il iola- lion (If SectLhlo 8(hi3) TIhese motiois t strike .cre granted ;i the rcord r t hat thc (icnera l Coutnlel. I iappeal, pre ious had af- lirlnld Ihc Rcgiral )irector', dl mrissal of a harge filed Ithi Re ptomicli thati ti tli, It1 herein had violatted Sec 8t(h)( i of the Act ol thc arlie llegtiorls :is are Illatd h Ithe Respo(denltrl i this priceiedllg I herefore, he reie*al of thcse allegation, li the ains' er conslitulied a d jlio i furtlher ppeal from the (ecral C ilouniel' ureriewable prior deter- initilion tIo disntiss See P'u(/i . Suthiett irlin . I..R ff, 0) LRRM 2431. 2432. 7 I.C' I ,9 (9th Cir 198i). : Althouigh the facts i this case are argeci udisputed the Respond- ent, alleging bias ad prejudicc. vced in ils brief for a rehearing of Ihis rlatcer oIl the ground that I had inmpeded the presentation of its case. The Respondent hl as 1(t olht to ake pecial appeal from my ruhngs under Sc 10t)2 26 of he tBoard's Rule, ad Regulations, Series 8. s amended. anid also lid not folilow the procedure etl fItrtil in Sc 102.37 of te Rules ad Rcgulatotis, which, n ir liau, requires the mely iling of it delailcd atffidasit lI support f a tiio tIhait air admiistrative law judge withdraw ol grounds of personal bias Accordingly. Ihat ssue need not be colsidered here aItltrig revsiessed the record it the light of, the seri- oust citUlititill herein. I lildl thalt rgunllcltis in his regard are without substance and collclude Ihal rehearing Is lnot warranted IfiCK\WAI. CORPI' 786, as the exclusive bargaining representative of the em- ployees in a unit consisting of "All Drivers anitd Ware- housemen employed at the [Respondent',,] facilily at Gilmer Road, Mundelein. Illinois.4 excluding all carpen- ters and carpenter trainees, '5 office clerical employees. guards and supervisors as defined in the Act." The newly certified unit consisted of four drivers. 13. The lauct I. The Respondent's recognition of Local 301 as bargaining representative for a multiemployer unit On about January 10 or 15, following issuance of the above Certification of Representative, Robert Grever,'i who then was the Respondent's president, telephoned Robert Barnes, secretary-treasurer and principal officer of Local 301, the Union herein. Grever did not identify himself or his company, but told Barnes that the Re- spondent had had a National Labor Relations Board election among its truckdrivers that fall and was dealing with Chicago Teamsters Local 786. He asked if he should be bargaining with that local or the one in Lake County where his company is located. Barnes replied that Local 301 has Lake and McHenry Counties in its ju- risdiction and, if the Company is located in Lake County, it probably should be dealing with him. About 7 to 10 days later, Grever again called Barnes. This time he identified himself and the Respondent, tell- ing Barnes that he was at an impasse with the Chicago local. Barnes stated that he would initiate the procedures necessary to transfer the Respondent from the Chicago local's jurisdiction to that of his union and that Barnes would hear again on this. The necessary procedures were implemented and, in January, Local 301 became bargining representative in place of Local 786.7 The first meeting between Barnes and Grever oc- curred in late January when, the substitution of bargain- ing representative having been completed, Barnes 4 Although physically located in Gilmer, the Respondent's address also appears as Mundelein the post office used s The Respondent's carpenters and carpenter trainees have been repre- sented separately by the District Council of Carpenters of Chicago since the Respondent's inception. e Grever was the Responden's president for about 4 years His rela- tionship with the Respondent ended about weeks before the start of this hearing and he was replaced as president by Edwin Andress, a principal of the Respondent. ? The Respondent's reasons for seeking this change in bargaining rep- resentative are variously presented. As noted. Grever testified that he had told Barnes he was at an Impasse with ocal 786 and that local 301 properly had geographic jurisdlction ver his Company's area if loca- lion. He later related that t would he inappropriate to bargain with Local 786 as hat union represented constructioll industry enmpli es which the Respondent does nt employ tiec also expressed belief that the economic provtisions of the contract proposed by Iocal 78e are nmore costly than those (of L.ocal 301 'Ihe Respondent's brief, however. slated only that the desired chuinge was based on geographic csideratiolns as Local 301 properly had bargaining jurisdlcllon where the Respondent was located The General Counsel and Union argue that, consistlent ith its conduct alleged as unlavf'ul herein, the Respondenlt succeeded in sub- stituting Local 301I solely for economic reasons In its continluing search for the best available bargain It is found here. from (irever's estimon. that in arranging to bargain ith L.ocal 301. the Respindenl' s cil s, were reduced In that the l ocal 301 wage schedule was beloss that f It icil 786 brought it cop} of' the then current colleclive-bargainilg agreementH to Grever's office and left it for inspection. (ireser testified that. before the contract was signed on March 14, there were about four contacts between the parties bh phone or in person At a meeting early in February, the contract provisions were reviewed and discussed. When Barnes asked if Grever were going to sign the agreement, he replied that he was not, and re- quested clarification of certain points. Grever, seeing a problem, asked how "material handling" in the proposed contract's work jurisdictional clause would fit the Re- spondent's operation. He explained that his other em- ployees-carpenters and carpenters' helpers-in addition to the four drivers who had voted for Teamsters repre- sentation, also pick up pieces of lumber and transport the Respondent's products and materials from place to place. Grever stated that he did not want carpenters and help- ce. sweeping floors, handling materials, or doing other nloncarpentry tasks because of their highly specialized skills and the cost of employing them, so that times when these employees were not working within their field would be kept to a minimum. However, if it should occur that work covered by the Local 301 agreement had to be done while Teamsters were unavailable. the Respondent's position was that such work should contin- ue to be performed by its carpenters and helpers as during the I years that the Respondent has been in busi- ness. Grever expressed concern that, if he followed the company procedures as before, he would be in violation. During this discussion, Barnes repeatedly reassured Grever that his Union was interested in representing only the four drivers who had voted in the fall election and was not concerned about the Respondent's operation or in its carpenters. When Grever protested that, since the Respondent's policies conflicted with the language of the contract, should a question arise later, Barnes' pres- ent verbal assurances might be disregarded Barnes again reassured him that the Respondent should run its own business. He was there to represent only the four men who had voted to have the Teamsters Union represent them and Grever would be free to continue his operation as before. Edwin Andrews, who by the time of the hearing had replaced Grever as company president, testified that he attended at least two negotiating sessions with Grever and with Barnes and Robert Laduke, the Union's presi- dent. At the first such meeting, in late January, the eco- nomic provisions were presented and explained to the company representatives. These matters were not deeply pursued as Andrews asked for time to enable review by counsel, promising to get back to the Union. About 3 weeks later, at the next meeting, the contract provisions again were discussed. When Andrews tried to get clarification of certain objectionable provisions, he was told by Barnes that this is the contract that all the Respondent's competitors had signed. If the Respondent did not sign it, the Union would negotiate one far tough- er. On March 14, following this alleged threat, the Re- This conlract, helcn the Unlon and Material tlandllng Employees Assocliation. a multiemploscr bargaining orgatnlatlon, a, effecicl e from June . 107th io Ma\l I1. 197 DECISIONS OF NATIONA. I.ABOR()K REIATI()NS 3()ARD spondent signed an addendum whereby it became bound by the union contract with the employer association.' ' The Respondent finds misrepresentation in Barnes' as- surances during the above-described contract negotia- tions that the Union merely was interested in represent- ing the four drivers and that the Respondent would be free to conduct its own business, as before, assigning car- penters and their helpers to do material handling for Teamsters away on delivery. Specifically, the Respond- ent, after subscribing to the contract on March 14, had felt compelled to settle a grievance filed by a driver on March 22, protesting that on March 19, 20, and 22, two named carpenters' helpers "were doing union yard work and operating Forklifts." The Respondent contends that this use of the contractual grievance procedure restricted its long-exercised right to assign personnel, previously discussed with Barnes. The situation cited, however, is distinguishable from instances where carpenters and helpers are used to fill in for drivers who are absent or away on delivery, for, while these carpenters' helpers were being assigned to do his work, the grievant was on layoff. 2. The Respondent's withdrawal from multiemployer bargaining and refusal to sign the new contract The multiemployer contract to which the Respondent had subscribed in March, near the end of its term, had been negotiated by the Union with the Material Han- dling Employers Association, herein the Association, founded several years before to represent its members, who are employers in the building materials industry, in negotiating contracts, settling disputes with the Union, and to perform other related services. Having been notified in March that the Union would be terminating the contract as of the end of its term, May 31, Association officers called a membership meet- ing for April 4. This was attended by a number of em- ployer's representatives, including Grever on behalf of the Respondent. At the April 4 meeting, the presiding officer an- nounced that the Association contract with the Union, Local 301, was expiring on May 31. He asked the mem- bership to decide upon the bargaining format to be used, whether they wished to bargain individually or to con- tinue through the Association. Early in the meeting, he also asked those present to rise and introduce themselves to the group. While the introductions were in progress, an authorization agreement was circulated for signature. 9 Barnes testified that the Respondent basically had accepted the eco- nomic provisions of the contract during the earlier meeting, but had de- layed signing until counsel could review it. When the parties met again after the Respondent's attorney had examined the contract, there were no problems and the agreement was quickly signed. Barnes denied having threatened the Respondent with a tougher contract if the Company did not sign. I credit Barnes' denial that he had threatened the Respondent. The Respondent had taken positive action to substitute ocal 301 as bar- gaining representative and it is undisputed that the Respondent was being afforded a more favorable wage package than had been offered by Local 786. Finally, as will be discussed, when the Respondent, in the fillowing July and August, determined that it did not want to sign the newIly nego- liated agreement then submitted, it was able to refuse to do so, standing firm, noltwithstanding its contention that the earlier contract had been signed against a background of threat by the Union. Most significantly, this agreement authorized the Associ- ation "to negotiate and execute on the signers' behalf, a tiew multiple-employer collective-bargaining agreement to replace the labor agreement," effective June 1, 1976, to May 31, 1979, with Local 301. It established that the Association be represented in negotiations by a four- member bargaining committee, and provided that the new contract shall cover the employees of the signers who are represented by the Union, that there must be ratification of the contract by 51 percent of the authori- zation signers, that the authorization to the Association is irrevocable and that employer members would not nego- tiate or execute any bargaining agreement or any amend- ment or modification to the existing agreement with the Union without the Association's prior approval. When Grever introduced himself and his Company at the April 4 meeting, someone present asked why he was there as the Respondent's facility was located west of U.S. Route 45. Grever agreed that his facility was west of that road; that he was from Gilmer. When the man told him he was not supposed to be at that meeting, Grever replied that he had not known that. Grever then was told, for the first time at that meeting, that Local 301 had a second, separate collective-bargaining agree- ment with a group of employers west of Route 45 that was less costly ' than the east of Route 45 contract it negotiated with the Association." When Grever sug- gested at the meeting that he should have the west of Route 45 contract as his company's yard was located west of Route 45, he was advised to take action if he wanted that agreement-to hire a lawyer. However, Grever, on the Respondent's behalf, signed the Associ- ation authorization agreement then being passed around-either before or after being told of the other contract-and did not at that meeting attempt to revoke his signature from that document. The Association and Union began negotiating a new contract on April 12 and these talks continued at various sessions until the first half of June when the terms of a new agreement, effective June 1, 1979, to May 31, 1982, were reached. The proposed contract was ratified by a majority of the Association's members sometime before June 14 and was signed by Union and Association repre- sentatives on July 5. However, after the April 4 meeting, the Respondent did not again participate in the Association's affairs and did not attend the June ratification meeting. Rather, after the April 4 meeting, Grever sent the following undated letter on the Respondent's stationery to William Peddle, 2 with a carbon copy to Union Secretary-Trea- surer Barnes: "' Although (ireser was told that the east of Route 45 contract 'was less expensive, he as not told by how much I lI March, the Respondent had become bound by the then current cast of Route 45 agreement 2 Peddle, setnior executive of a member concern, was irnc f the founders o(f the Association and served as chairman of the Asociltli(ll'S four-member ncgotiating committee for the new contract. At the time of the hearing, he was Association chairman At the April 4 meeting, Peddle, tolo. had told Grcver of the west of Route 45 contract 190 'I'CKWAI CORP I would like you to officially remove the name of Teckwal Corp from the list of contractors that have signed up to accept the negotiating commit- tee's contract wKith I.ocal 301 of the Teamsters Union. We wish to do this on an indixidual basis. The General Counsel, to establish a date for the Re- spondent's letter seeking withdrawal from the Associ- ation, introduced a copy thereof subpenaed from the Re- spondent's files, where the date "5/16/79" appeared in red pencil above the upper right side of the typewritten body of the letter. However, neither Grever nor An- drews could attribute any significance to that date. Peddle could niot recall whether he had received the letter before or after April 12, when new contract nego- tiations began, and Barnes testified that he had no kiiowl- edge of the Respondent's refusal to continue to partici- pate in the Association until July, when Grever refused to sign the completed agreement. Barnes denied learning of Grever's letter until told by the General Counsel. Grever recalled that he had mailed the letter at the "tail end of April or the first part of May," some 3 or 4 weeks after the April 4 meeting. I credit Grever's testimony as to approximately when this letter was mailed as the most informed on this subject and find, therefore, that the letter requesting withdrawal from association wide bar- gaining was sent after contract negotiations had begun on April 12. On about July 8, after the July 5 signing of the new contract by association and union representatives, Union President Laduke left a copy of the agreement with Grever for examination, at his request. When Laduke called about 2 days later, July 10, Grever told him that the Company could not sign the agreement, but wanted to look it over. Laduke's reply that the Company, as an Association member, was duty-bound to sign the agree- ment, was met with the response that the Company no longer belonged to the Association. In early August, Barnes called Grever and asked if he was going to sign the contract. Grever answered that he would not; the Union had his company under the wrong contract. Teckwal would sign the west of Route 45 agreement. Barnes told Grever that he could not. The east of Route 45 proposal had been voted on by his men. Grever was reminded that his company belonged to the Association that had negotiated this contract which he was duty-bound to sign. The conversation ended with Grever repeating that his company was prepared to sign the west of Route 45 contract and Barnes reiterating that this could not be done. The Respondent, although again stating at the hearing its willingness to sign the west of Route 45 contract, has not signed the more costly east of Route 45 contract ne- gotiated by the Union and the Association. 3. The Union's collective-bargaining agreements for east and west of Route 45 The Respondent contends that as its only yard is locat- ed west of U.S. Highway 45, it properly should be a sig- natory to the agreement for that area in accordance with what Grever had been told during the April 4 Associ- ation meeting. To support this position, the Respondent introduced two lists prepared by the Union, showing names and addresses of employers ewho are or should be parties to its respective contracts. The first page of this exhibit, dated March 14. 1979, lists 15 employers who are signatories to its west of Route 45 contract, and is headed "Coal. Lumber, Material and Fuel Oil Drivers out of Coal and Building Material Yards located West of U.S. Highway #45."' The second and third pages, dated March 8, 1979, lists 43 employers, including the Re- spoident, that the Union expects to sign the east of Route 45 contract, and is headed "Coal, Lumber, Build- ing Material and Fuel Oil Drivers, Helpers and Laborers out of Coal and Building Materials Yards." Noting that the first list refers to yards "located west of U.S. High- way #45," the Respondent points to this location-speci- fying phrase to argue that in the Union's on words. the address of a given employer is the criterion for determin- ing whether the east or west of Route 45 contract is ap- plicable. Barnes xplained that Route 45 runs through Cook, Lake, and McHenry Counties, where his Union has juris- diction. lie described the road as being so positioned that Cook County lies on both sides of Route 45, that around two-thirds of Lake County is east of Route 45 and that McHenry County is completely to the west. The Re- spondent's sole facility in Gilmer is about 6 miles west of that route. Barnes related that his Union first had organized em- ployees of building supply firms east of Route 45 in the 19 20's, Employees west of Route 45 were not organized until 1955. As the western area is more rural, his Union never has been able to negotiate wages as high there as in the east of Route 45 contracts. However, the criterion as to which contract is applicable to a given employer is the area served by that employer and not the physical lo- cation of its premises. Barnes identified eight employees, excluding the Respondent, on the east of Route 45 em- ployers list whose yards are located west of Route 45 but who are signatories to the Association's east of Route 45 contract because they also serve customers east of Route 45. Also, one member of the Association's four- member contract negotiating committee was an executive of a company situated to the west. Barnes emphasized that in order to be eligible for the west of Route 45 contract, an employer must be located in and exclusively service the area west of Route 45. None of the employers listed as signatories to the west of Route 45 serves anyone to the east of that boundary. If an employer's premises are physically west of Route 45. ':*I h Respondentso also assrted at the hearing that the sanme cmpli)er association legotiated hboth the east and west of Route 45 onlracls ith the same union, and argued that it. therefore, was entitled to subscribe to the less costly contract The Respondentl also maintained that financial loss to itlelf resulting from this dual arrangement constiluted "unusual circumsiances permiling withdrawal from multiemployer bargaining swithin he doctrine of Retail tIoci,ts, Inc.. 120 NI R 38. 395 (1 9 58) Peddle. hosecr. testified in response. w thout contradiction, thal the Assotiatilon he heads is completely separate from and has nothing to do wilh the Aresl of Roule 45 enployer,' group. of which he has little per- slnll knowIledge Barne. too, tesiified that the Iwo contlrals arc negoti acd separately with different employers and d not hase the same expl- ration dles A.cordingl. the Respondent's asscrtion must he deemed IacitU.lly unsupporlt d 191 I) tCISI()NS ():OF NAFIONAI I. LABOR Rl A'Il()NS BO()ARI) but the employer services customers both east and west of Route 45, they are expected to sign the east of Route 45 contract. 14 Barnes and (irev'r both testified that, although the Respondent's sole facility is situated approximately 6 miles west of Route 45. it services customers both east and west of the boundary road. irever related that be- twcen 70 to 8) percent of the Respondent's business was west of Route 45. Barnes testilied in convincing detail as to the business operations and locations of employers signatory to his Union's respective contracts. 'Iherefore, noting that eight other employers x ho, like the Respondent, hae their yards west of Route 45 but who also serve customers to the east, are signatories to the east of Route 45 agree- meit, that an executive of one of these concerns partici- pated as a member of the Association's four-member lie- gotiating committee, and, as Barnes' testimony was niot factually contradicted, I find that there was no inconsis- tency or disparate treatment in applying the east of Route 45 agreement to the Respondent. In so conclud- ing, it is noted that, while the phrase in the employers list heading, "located wecst of Route 45," cited by the Respondent, is accurate as to the physical location of those employers, Barnes' testimony is corroborated by the absence of any corresponiding geographic limitation in the heading or elsewhere on the other list of signatory employers. Accordingly, while an employer must be lo- cated in and serve the west of Route 45 area to have the westside contract, it is not necessary to be located to the east of Route 45 to be signatory to the eastern agree- ment. C. Discussion and Concluding Findings In Joseph J. Callier, et al., d/b/a Callier's Custom Kitchens, iS the Board gave the following relevant analysis: The gravemen of the complaint in this case is that Respondent's withdrawal from the [multiem- ployer] Association was untimely, and that Re- spondent's subsequent refusal to execute and apply the terms and conditions of the agreement signed by the Association and the Union... violated Section 8(a)(5) and (1) of the Act. In Retail As.ociates [Inc., 120 NLRB 388 (1958)] the Board .... held that, prior to the begin- ning of negotiations, withdrawal could only be ef- fected by an unequivocal written notice expressing a sincere intent to abandon, with relative permanen- cy, the multiemployer unit, and to pursue negotia- tions on an individual-employer basis. However. once negotiations had actually begun, withdrawal ' Certaill employver. are signalorit, to hth agrc remcniD. Iarrics rel lted how iWu r ernploers who originally were lctocated ili (,1 Routtc 45 illld erc ubscrihers lte the ca;,icrn olllric ra .suhsequcnly als, opeled yards o the west of Rute 45 A their requcot, they were giv;ii the csl of Roulc 45 contracl. hut 0only for those sesicrnl facililics I hey crc not permitted use te ew )ardIs to rilake dcli crics or otIhcrwisc scrvc u1s- Iomers easll f Route 45 ad conlimrucdl t be hounld hy the casltside c n- iract fr their original easacrni facilities ad for all sw rk done lo thie cat ' 243 N RB 1114, 1118 (1979) could only be effected on tile basis of mutual con- seCt or wheni unusual circumstances ,were present. The exception under Retal . ociat.es supra, which pernmits untimely withdrawal from multiem- ploycer bargaining groups under "unusual circum- stances" has been limited by the Board to two basic situations. First, unusual circumstances have been found to exist when the withdraw ing employer can establish that it is faced with dire economic conse- quences, such as imminenit bankruptcy. The second situation is when the multiemployer bargaining unit has dissipated to the point where the unit itself is no longer a viable bargaining entity. The noted excep- tions arc designed to foster, rather than destabilize, multiemployer bargaining by limiting an employer's withdraw al after commencement of negotiations- assumiing the absence of mutual consent-to the most extreme situations. In Callier'v Custom Kitches, upra, the Board found the Respondent's withdrawal from the Association to be untimely as notification of withdrawal was not sent until after the commencement of negotiations, as there was no mutual assent to ithdrawal and as "unusual circum- stances" of the extreme types specified were not present. In Btrgces.s Mining & Con.struction Corporation,t the Board found that while the attempted withdrawal for the multiemployer hargaining group was untimely, "such withdrawal would not, in and of itself, be a violation of Section 8(a)(5). Rather, the Respondent's refusal to bar- gain and to adhere to the negotiated contract following the untimely witlhdrawal constitutes the violation of Sec- tion 8(a)(5) and (1) herein. See Ringside Liquors. In(.. d/ b/a Dino; Lounge and Cassell & Friedman, Inc., 237 NLRB 30, fn. 2 (1968)."i7 In the instant case, it has been found that the Respond- ent sent notification of its withdrawal from the Associ- ation at the end of April or the beginning of May, weeks after April 12, vhen ne w contract negotiations began. Even crediting Grever's representation, denied by Barnes, that he concurrently had sent a copy of the letter of withdrawal to the Union, it is clear that the Respond- ent's attempt at withdrawing from the multiemployer As- sociation was untimely and lacked mutual assent. It also has been found above, contrary to the Respond- ent, that as the applicability of the east of Route 45 con- tract to a givenl employer was based on the area served by that employer, rather than its physical location, there was no irregularity involved in applying this contract to the Respondent. Moreover, the Respondent's contention that it had beconie bound under the nes agreement through misrep- resentation is factually insupportable. Grever testified that he had learned of the less costly west of Route 45 agreemcent at the April 4 Association meeting, when he signed the authorization committing the Respondent to ' 231' NIRl 92, il 1 978) ' Al so e PI'r,,n It IIo ykll (nmp vr 238 NIRH 943 f I (1978), enforcemlclll dried hl66 2d 136l (5lh Cr 1481) 192 1 CK\WAI CORI' multiemployer bargaining. With this information he still did not seek to revoke his authorization at that meeting, and the Respondent did not communicate a desire to withdraw from multiemployer bargaining at any time during the week that remained before the start of con- tract negotiations on April 12, when such withdrawal still might have been timely. In these circumstances, mis- representation cannot be found. No merit is found to the Respondent's contention that the unit as described in the July east of Route 45 agree- ment is inappropriate as improperly expanding the scope of the unit both beyond that originally certified by the Board or even that set forth in the contract signed with the Union in March. The unit description contained in article II of the proffered July agreement covers the fol- lowing included employees: Garage employees, truck drivers and drivers or helpers and yard laborers operating yard tractors, yard loaders, lifts or carriers, and engaged in the delivery, loading and unloading of lumber, lumber products, millwork, trim and building materials from yards and warehouses, team tracks, or mills owned and/or operated by members of the compa- ny, or from any other point designated by the em- ployer to individuals, companies or corporations. and all construction sites, or any other place, as di- rected by the employer. Helpers and yard laborers are not to drive trucks outside of yards. The unit for which Local 786 was originally certified as bargaining representative included: "All drivers and warehousemen employed at the [Respondent's] Munde- lein, Illinois, facility, excluding all carpenters and carpen- ter trainees, office clerical employees, guards and super- visors, as defined in the Act." This unit, the Respondent argues, was expanded by the contract signed in March with Local 301, which contained an identical unit to that described above for the succeeding July 1979 contract, except that there was no reference in the unit description provision to garage employees. The Respondent con- tends that as it does not employ garage employees, the inclusion of this classification in the July contract consti- tuted an improper further expansion of the unit. As to the Respondent's first point that the contract signed in March included job categories not specified in the Board's original Certification of Representative, par- ties, in the course of bargaining, are free to validly nego- tiate changes to certified units, and to include, through bargaining, work classifications not spelled out in the original certification. 8 The Respondent's second point in this area, that the inclusion of garage employees for the first time in the July contract improperly expanded the scope of the mul- tiemployer unit contained in the preceding contract, is incorrect. Barnes' testimony that the Union and Associ- ation had bargained for garage employees in the earlier '" See Intlrnaional le'hlphoii & fl Ie.graph ('orporation (il7' I-e'deral Laborouoric, 159 NI.RB 1757. 1759-64 (1 966). enfd in relevant part 382 F.2d 366 (3d Cir 19671, cert denied X89 i S 1()39 (1968), where the par- lies, extensively altering the originally certified unit Ihrougih siubh cqent negotiation, legitlmlled shat, lt first, mia hasre been an inapproprialte unit contract and that the failure to specifically refer to them in the unit description provision of that agreement was a typographical error is supported by the inclusion in arti- cle X of that contract of a wage schedule for garage employees. Accordingly, the July contract as offered to the Respondent in no way expanded the scope of the unit set forth in the contract previously signed by the Respondent. The Respondent's argument that the unit set forth in the cast of Route 45 contract is, in any event, inappropri- ate loses some of its force as the Respondent has stated its readiness, both before and at the hearing. to sign the west of Route 45 agreement which contains a unit de- scription identical to that in the contract rejected by the Respondent. The Respondent's reliance on A' L.R.B. v. Siebler Heating & Air Conditioning'9 as authority for the propo- sition that the Respondent was put at a competitive dis- advantage by the more costly east of Route 45 agree- ment and that this disadvantage constituted such "unusu- al circumstances" as would warrant its withdrawal from multiemployer bargaining is misplaced. In the present matter, unlike Siebler. supra, there was no conflict of interest between members of the Associ- ation as to contract terms, so as to possibly support a finding that the Association had failed to fairly represent all its members, as found by the court in Siebler and there was no specific showing by this Respondent of fi- nancial hardship, even to the more limited extent noted in Sichlcr. Finally', the court's conclusion that "unusual circumstances" were present in Siebler is contrary to the Board's finding in that matter at 219 NLRB 1124, by which, of course, I am bound. See :L.R.B. v. lulsa Sheet .Metal oWrkAs. Inc.,20 cited supra at 219 NLRB 1131 21 For the above reasons, I find that the Respondent's withdrawal from multiemployer bargaining was not ef- fective because of its failure to communicate its with- drawal to the Association and Union in timely fashion prior to the start of new contract negotiations, and as such untimely withdrawal lacked mutual assent or other cognizable justification. Therefore, the Respondent's later refusal to execute and implement the subsequently negotiated multiem- ployer agreement violated Section 8(a)(5) and (1) of the Act. '' 53 2d h60 (8th ('ir 1977). cert denied 8 S Ci 311 4 (1i 78) 2c 167 F 2d 55 (0th Cir 1961. 1 lith Respoidenl 's assertllon that m, refusal It recesi\ e Illl elidetlc the monlearS prolisiolns if the eslt of Route 45 contract had pres clted the dleveclopment of an conomic defense based on competitlrve disadvan- tage as "unusual circumstances" warranting ithdraal from multirnl- ploier bargaining is inaccurate and untimely The record shos that hc Respondcnl had refused to establish the contract', relevsance b repeatelld- Iv declining It answer whether if shoirn that he wetsidc colntract .,as lcss costly than the east of Route 45 agreemenr tIhat this couldt costllit ul a defense to the refusal to bargain alleged in the complaint That the wes of Route 45 agreement is less expetllsiv Ito emploer sigllalOrlies as es- tahlished im general terms by HBarnes' tstlimoll thati his uni i had rlecr been hle to negotiate is forabl a i r(llltralt iI the rurIllle id "est its I had to the east 193 DEICISIONS OF NATI()NAL LABOR R.I ATIONS BO()ARD IV. IHI I-FFECrI 01 I H tNI:NAIR I.ABOR PRACI ICES UPON COMMFRCE The activities of the Respondent set forth in section III, above, found to constitute unfair labor practices, oc- curring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow thereof. CONCIUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Chauffeurs, Teamsters, Warehousemen and Helpers, Local Union No. 301, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Local 301 is, and has been at all material times, the exclusive bargaining representative of the employees of the Respondent in the following contractual unit appro- priate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: Garage employees, truck drivers and drivers or helpers and yard laborers operating yard tractors, yard loaders, lifts or carriers, and engaged in the delivery, loading and unloading of lumber, lumber products, millwork, trim and building materials from yards and warehouses, team tracks, or mills owned and/or operated by members of the compa- ny, or from any other point designated by the em- ployer to individuals, companies or corporations, and all construction sites, or any other place, as di- rected by the employer. 4. By its refusal to sign the collective-bargaining agree- ment reached between the Material Handling Employers Association and the Union on July 5, 1979, effective June 1, 1979, through May 31, 1982, and by thereafter failing and refusing to comply with the terms of this con- tract, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THI R.Mi)DY Having found that the Respondent has engaged in cer- tain unfair labor practices, it will be recommended that the Respondent cease and desist therefrom and take cer- tain action designed to effectuate the policies of the Act. Having found that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act, following its untimely withdrawal from multiemployer bargaining, by refusing to accept, sign, and give effect to the terms and condi- tions of the collective-bargaining agreement signed by the Union and the Association on July 5, 1979, although duly requested, the Respondent should immediately sign and implement the agreement reached between the Union and the Material Handling Employer's Associ- ation and give it retroactive affect as of June 1, 1979,22 making its employees whole for any loss of earnings suf- fered since then as a result of its failure to apply the said agreement. Backpay is to be computed in accordance with F: W. Woolworth Company,23 with interest as pre- scribed in Florida Steel Corporation. 24 Nothing herein is to be construed as requiring the Respondent to recoup wages or benefits already received by its employees. Ad- ditionally, it is recommended that the Respondent be di- rected to make payments into the various funds on behalf of those employees in the unit for whom such contribu- tions would have been made had the Respondent not un- lawfully repudiated the collective-bargaining agreement. The Respondent, citing Wellman Industries. Inc.,2 5 argues in its brief and on the record that the Respond- ent's defenses herein are frivolous and, accordingly, that the remedy herein also should provide for reimbursement of the Union, litigation expenses, and those other ex- penses incurred by virtue of the special effort required in trying to get the Respondent to sign the new contract. I agree. The findings herein that the Respondent had sub- scribed to the 1967-79 multiemployer collective-bargain- ing agreement, had thereafter provided written authori- zation to the Association to negotiate the next contract on its behalf, and later had attempted untimely with- drawal from multiemployer bargaining, are based on facts which are iargely documented or otherwise undis- puted in the record. Also clear is the Respondent's refus- al to sign and implement the 1979-82 contract negotiated by the Association on its behalf following their untimely withdrawal. Against this, the Respondent has argued as an affirma- tive defense in its answer and on the record that the re- pudiated contract had been reached through the Union's own refusal to bargain in violation of Section 8(b)(3) of the Act, although this defense was no more than a de facto further appeal from the General Counsel's unre- viewable earlier dismissal of its charge to that effect. The Respondent argued that the unit had been improperly ex- panded and was otherwise inappropriate, although it always was prepared to sign what it believed to be the less costly west of Route 45 contract, which contained an identical unit description. The Respondent argued that the same employer association had negotiated both the east and west of Route 45 contracts and that it, therefore, was entitled to the benefit of the cheaper agreement, although the only evidence on this point showed that the two contracts were separately negotiat- ed by the Union with two mutually independent employ- er groups. There is no evidence to support the Respond- ent's contention that any obligations arising under the zz Preton H. Hskell Company, upra. 2:1 90 NLRB 289 (1950). "' 231 NLRB 651 (1977) See, generally, Iov Plumbhing & Heating Co., 138 NLRB 716 (1962). 2" 248 NI.RH 325 (198() 194 TECKWAI, C()RI' east of Route 45 contract had been incurred by the Union's misrepresentation. 2 While the Respondent's past litigation history is not comparable to that attributed to the Respondent in Wi'el- man Industries, Inc., . pra, in the context of the eCi- dence, the defenses raised herein appear to he neither substantive nor "occasioned b a reasonably debatable point of view." Accordingly. it is recommended that the Union be re- imbursed by the Respondent for the reasonable litigation costs it has incurred in connection with the litigation of this proceeding and for expenses incurred after July 10, 1979 27 in unsucessfully attempting to will the Respond- ent's acceptance and compliance with the contract. Upon 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" 2 The Respondent, Teckwal Corporation, Gilmer. Illi- nois, its officers, agents, successors, and assigns. shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Chauffeurs, Teamsters, Warehousemen and Helpers. Local Union No. 301, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. as the exclusive bargaining representative of its employees i the appropriate bargaining unit described and set forth in the collective bargaining agreement ex- ecuted on or about July 5. 1979, by and between the above-named Union and the Material Handling Employ- ers Association, effective June 1, 1979, through May 31, 1982. (b) Refusing to sign and implement the 1979-82 collec- tive-bargaining agreement reached between the above- named Union and the Material Handling Employers As- sociation with respect to its employees in the appropriate unit described herein. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their '" The only real credihilit, resolution req uired was the finding ahbove that the Ulnion hadr nlt thretlltced the Resporndenrt With the proposal of a tougher crlracl hef re the R splidcnril signed the q176 7 9 agreenicnl in March However, een this ilsa collateral to the principal issue herein ihe Respondenlt's refusal to sign and implement the 197V982 agreement, which ohhigalorn more direcll arose from its authorization for mulitem- ploer hargai ing later signed ii April :t July 10 i Ihe approxmimate date of the Respordent's irst refusal to sign the new agreemenl 2 In the ev lnl no cxceplionl, are filed a pro,ided by Sec 1246 of the Rules arid Regulalions of the Nalltonal I ahor Relat ion, tBoard, the findings. conclusions. ad recommended Order herein hall, as provided in Sec 102 48 of the Rules and Regulhlirons., he adopied hb the oard and become its findings. cnclusions, and Order and all obhjections thereto shall he deemed a alied fr all purpose.s rights under the National Labor Relations Act, as amended. 2. ake the following affirmative action necessary to effectuate the policies of the Act: (a) Forthxilh sign ad implcrmelt the above-described agreement antd give retroacliSe effect thereto front June 1 197)9. (b) Make whole, with interest. its employees the above-described bargaining unit for any loss of pa or other employment benefits which they may have suf- fered by reason of the Respondent's refusal to sign alld implemetnt the aforesaid agreement, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Pay to the Union the costs and expenses incurred by it in the investigation, preparation, presentation, and conduct of this proceeding before the Board, including reasonable counsel fees, salaries, witness fees. transcript and record costs, travel expenses. and other reaonable costs aid expenses, all such costs to be determined at the compliance stage of this proceeding. In addition, pay to the Union the costs and expenses incurred by it in at- tempting to obtain the Respondent's execution of and compliance with the aforesaid multiemployer collective- bargaining agreement subsequent to July 10, 1979. such costs ad expenses to be determined at the compliance stage of this proceeding. (d) Preserve and, upon request. make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary or useful in analyzing the amount of back- pay due under the terms of this recommended Order. (e) Post at its Gilmer, Illinois, facility, copies of the at- tached notice marked "Appendix." 2 9 Copies of said notice, on forms provided by the Regional Director for Region 13, shall, after being signed by the Respondent's authorized representative, be posted in said premises by the Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 29 In the event that this Order is eniforced by a Judgment f he United States Court olrf Appeals. the words in the notice reading "Posted h, Order if he Na;ltional labthr Relations tBoard" shall read I'Po,tcd P'ursuanlllo a Judgmenll of the United States Court of Appeals Enfi)rclng an ()rder of the Natillnal I air Relation,lls B .ard " 195