Brown Co.; L-T Transport, Inc.

BROWN CO. 783 Brown Company; Brown Company, Livingston- Graham Division; Brown Company, Tri-City Concrete Division; L-T Transport, Inc. and Kris A. Borum Brown Company, Livingston-Graham Division and Kris A. Borum. Cases 21-CA-14732-1 and 21- CA-14732-2 28 February 1986 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 30 July 1979 the National Labor Relations Board issued its Decision and Order" in this pro- ceeding. The Board held that the Respondent2 vio- lated Section 8(a)(3) and (1) of the Act by transfer- ring cement hauling work from its Livingston- Graham Division to its wholly owned subsidiary, L-T Transport, Inc., in order to escape its wage obligations under the existing bargaining agreement between Livingston-Graham and Building Material & Dump Truck Drivers Local 420, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Intervenor in this proceeding. The Board declined to adopt Adminis- trative Law Judge Richard D. Taplitz' dismissal of the complaint. His action was based on his deferral to the ruling of a joint labor-management grievance committee. The Board found that the members of the joint committee had interests directly in con- flict with those of the grievant and refused to defer.3 The Respondent petitioned the United States Court of Appeals for the Ninth Circuit to review the Board's Decision and Order, and the Board cross-applied to enforce its Order. On 2 September 1981 the court issued its decision,4 granting in part the Respondent's petition for review, denying the Board's cross-application for enforcement, and re- manding the case to the Board for further proceed- ings in light of the decision. The court held that the Board did not abuse its discretion when it re- fused to defer to the joint labor-management griev- ance committee's ruling. However, the court stated that the' Board erred by judging the Respondent's actions on the basis of statutory mandates, rather than examining the collective-bargaining agreement between Livingston-Graham and the Union to see whether that agreement allowed the transfer of i 243 NLRB 769 (1979), Members Penello and Murphy dissenting. 2 The Respondent in this action is a single employer which consists of Brown Company; Brown Company, Livingston-Graham Division, Brown Company, Tri-City Concrete Division, and L-T Transport, Inc 3 243 NLRB at 770. 4 Unpublished opinion, Judge Murphy dissenting work at issue. The court was of the opinion that article XIX of the contract arguably allowed the work transfer and that, if it did, the Respondent had not violated the Act. The court remanded the case to the Board for reconsideration, leaving to the Board's discretion whether a further remand to a newly composed joint labor-management griev- ance committee would be appropriate.-5 The court also noted that it left to the Board the question of what impact, if any, the Supreme Court's recent opinion in First National Maintenance Corp. v. NLRB, 452 U.S. 666 (19'81), had on the case. Accepting the Ninth Circuit's opinion as the law of this case, we affirm our prior decision not to defer to the decision of the joint committee and we now consider the question whether article XIX6 of the contract privileged the transfer of work outside the bargaining unit. Since the Ninth Circuit's remand the Board de- cided Milwaukee Spring Division, 268 NLRB 601 (1984) (Milwaukee Spring II), and Otis Elevator, 269 NLRB 891 (1984). The analysis in Milwaukee Spring II is premised on the well-established propo- sition that an employer may not make unilateral changes in mandatory subjects of bargaining prior to a good-faith impasse in bargaining. We also noted that Section 8(d) adds the further require- ment that, when there is a contract in effect, the employer may not make changes in the mandatory terms and conditions in the contract without the consent of the union. In that case, we found that the contract did not contain any prohibition to the transfer of work and therefore the employer did not violate Section s We note that none of the parties seeks a remand to a new point labor- management grievance committee 6 Art. XIX provided that- It is the intent of the parties to this Agreement to protect the work performed by employees in the bargaining unit The Employer recognizes that it is important and desirable to uti- lize its own equipment and drivers to the greatest extent possible prior to using sub-haulers and/or non-Company trucks. The Union recognizes that under certain conditions, such as those dictated by customer demands, equipment requirements, daily dis- patch determinations, materials to be hauled and similar factors, that sub-haulers and/or non-Company trucks are necessary and have been so utilized throughout the Industry for many years The Employer, in accordance with the above, must however, de- termine the number, type and location of its working equipment in conformity with its business requirements. The Employer further must be able to determine, in keeping with sound business practices, the extent to which it will replace equipment which is too costly to operate, obsolete or damaged Under these conditions, the Employer agrees that sub-haulers and/or' non-Company trucks will not be utilized as a subterfuge to defeat the protection of the bargaining unit work In keeping with the above, the Union recognizes that the Employ- er will, utilize such sub-haulers and/or non-Company trucks as re- quired by location and classification only after all the available Com- pany trucks at such locations and in similar classifications have been initially dispatched 278 NLRB No. 113 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(a)(5) when it relocated work after bargaining to impasse. In the instant case, article XIX begins with the statement that: "It is the intent of the parties to protect the work performed by employees in the bargaining unit." To that end, Livingston-Graham promised to use its own equipment and drivers to the greatest extent possible, and not to utilize non- company trucks as a subterfuge to defeat the pro- tection of bargaining unit work. The Union, in turn, recognized that customer demands, equipment requirements, daily dispatch determinations, materi- als to be handled, and similar factors might require the use of noncompany trucks, but it is clear that the parties contemplated resort to noncompany trucks only in those situations where company truck resources had been exhausted. Livingston- Graham also retained the power to decide where and in what numbers the company trucks would be assigned, and the power to replace trucks which had become too old, too expensive, or too dam- aged to operate. Neither of these retained powers authorized Livingston-Graham to eliminate an entire job classification and transfer all cement hauling work out of the bargaining unit. The Respondent nevertheless argues that indus- try practice and past practice sanction its transfer of the cement hauling equipment. Past practice could affect our interpretation of the collective-bar- gaining agreement in two possible ways. First, as- suming arguendo that article XIX is ambiguous, past practice could shed light on the actual mean- ing of an unclear provision. Second, if we find that article XIX, on its face, did not allow the Respond- ent's transfer of the cement hauling work, the Re- spondent could argue that the Union and its mem- bers, by their past acquiescence in the face of simi- lar transfers, have lost their rights to complain in this instance. This second theory is based on a waiver-or estoppel-type argument. The Respondent's evidence of past practice is in- sufficient to sustain either of these theories. There is some evidence in the record that, in the past, Livingston-Graham had transferred single pieces of equipment outside the geographical jurisdiction of Teamsters Local 420. However, as the Charging Party points out, the record is bare of an example of a previous transfer of an entire category of equipment. Thus, the Respondent cannot point to any evidence of an accepted practice that would support its argument that the contract allowed its transfer of the cement hauling work. Similarly, since there is no evidence that the Respondent ever previously accomplished a work transfer like the one at issue here, the Respondent cannot success- fully argue that past acquiescence by the Union or its members estops them from protesting this work movement. As for industry practice, there is considerable evidence in the record that other companies cov- ered by the Blue Book agreement had set up cement hauling subsidiaries which then had signed "For Hire" agreements with the Teamsters local representing their cement train drivers. However, there is no evidence that any one of these compa- nies had unilaterally transferred its cement hauling work to the subsidiary in midterm of the contract, without the consent of the union involved. Perhaps more importantly, it is difficult for us to understand how, under the circumstances of this case, one union's failure to assert its rights under a contract with one employer would estop the members of an- other union from asserting rights under an identical contract with a different employer. Neither the industry practice nor the past prac- tice pointed to by the Respondent convinces us that article XIX permitted the Respondent to trans- fer the cement hauling work. Rather, we hold that the Respondent violated its job protection promises by moving the work from Livingston-Graham to L-T Transport. See A-1 Fire Protection, 273 NLRB 964 (1984). Thus the transfer of Livingston-Graham's cement hauling work to L-T Transport was a unilateral midterm modification of the collective-bargaining agreement between Livingston-Graham and Team- sters Local 420. However, an inquiry into whether the Respondent violated the Act by this action does not end with this finding, for only a unilateral midterm modification of a mandatory subject of collective bargaining violates the Act. Allied Chem- ical & Alkali Workers Local 1 v. Pittsburgh Glass Co., 404 U.S. 157 (1971). Therefore, we must deter- mine whether the transfer of the cement hauling work was a mandatory subject. We hold that it was. In Otis Elevator (269 NLRB at 892) we held that ... the critical factor to a determination whether the decision is subject to mandatory bargaining is the essence of the decision itself, i.e., whether it turns upon a change in the nature or direction of the business, or turns upon labor costs . . . . As found in our first decision, the Respondent transferred the cement trains out of the unit "for the sole purpose of escaping from its wage obliga- tions under the existing collective-bargaining con- tract." 243 NLRB at 771. Therefore this was a mandatory subject of bargaining and the Respond- BROWN CO. ent could not transfer the cement trains without the consent of the Union.7 As to whether the Union consented, the record is clear that the union representative told the Re- spondent that it would agree to the transfer of work only if the employees agreed. The employees did not agree and the Union never consented to a modification of the contract. It is true that the Union did not appeal the decision of the grievance committee to the next step in the grievance proce- dure. From this it is arguable that, by participating in the grievance procedure and acquiescing in the de- cision of the joint committee; the Union, in effect, consented ,to midterm modifications herein. See 243 NLRB 769, 775 (then Members Penello and- Murphy dissenting). However, the Union's failure to press the grievance does not end the statutory' issues here. For as the Ninth Circuit held: The fact that the Union has decided to abide by the committee's decision and has not joined the employees in filing the unfair labor prac- tice charges does not affect our decision. A union may adopt whatever position it chooses regarding an employer's actions or an arbitra- tion decision. However, sections 7 and 9(a) of the National Labor Relations Act do not pro- hibit employees from filing unfair labor prac- tice charges against their employer in an at- tempt to require the employer to fulfill its stat- utory duty to bargain with the union before in- stituting changes in the terms and conditions of employment. [Alfred IV. Lewis v. NLRB, 587 F.2d 403, 409 (9th Cir. -1978).]° In addition, to the extent this argument construes the grievance-arbitration procedure as a continu- ation of the bargaining process, it'is settled Board policy that bargaining history will establish a waiver of the right to bargain on a mandatory sub- ject only if- [I]t can be said from an evaluation of the prior negotiations that the matter was "fully dis- cussed" or "consciously explored" and that the Union "consciously yielded" or clearly and unmistakably waived its interest in the matter. C & C Plywood, 148 NLRB 414, 416 (1964), affd. 385 U.S. 421 (1967); see A-1 Fire Protection, supra; American Distributing', Co. v. NLRB, 715 F.2d 446 (9th Cir. 1983); Park-Ohio Industries v. NLRB, 702 F.2d 624 (6th Cir. 1983). In the instant case the record of that "bargaining" is virtually nonexistent 7 Member Babson agrees with this conclusion as consistent with the Supreme Court's opinion in First National Maintenance Corp., and with any of the views expressed in the Board's decision in Otis Elevator. 8 Member Babson accepts the court's opinion as the law of the case 785 and therefore it simply cannot be said that the Union relinquished its right to the benefits of its bargain in article XIX. Moreover, the Board has long held that during the term of a contract a union is not required to bargain at all about mid- term changes. In summary, the Respondent has transferred work out of the bargaining unit in the face of a work protection clause. The transfer turned entire- ly on a desire to reduce labor costs and was there- fore a mandatory subject of -bargaining. In these circumstances the Respondent could not implement this transfer without the consent of the Union and the Union did not consent to this transfer. Accord- ingly, we hold that the Respondent violated Sec- tion 8(a)(5) when it unilaterally discontinued its cement hauling operations and transferred this work to L-T Transport. In its prior decision the Board held that the Re- spondent's conduct was "inherently destructive of employee interests" (quoting from Ruston & Mer- cier Woodworking Co., 203 NLRB 123 (1973)). And, relying on Los Angeles Marine Hardware Co., 235 NLRB 720 (1978), the Respondent's conduct was found to be violative of Section 8(a)(3). We now find that since the Respondent violated' Section 8(a)(5) the remedy we order here makes it unneces- sary to pass on whether the Respondent's conduct was "inherently destructive." We will therefore modify the previous Conclusions of Law and Order to delete the finding of an 8(a)(3) violation.9 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 5. "5. By discontinuing its cement hauling oper- ations at Livingston-Graham's locations in Vernon and El Monte, California, and selling and transfer- ring its trucks to L-T Transport, Inc. at its Red- lands, California location while the Blue Book col- lective-bargaining agreement was still in effect and doing so without the consent of Local 420, Re- spondent acted in derogation of its duties under Section 8(d) of the Act' and thereby violated Sec- tion 8(a)(5) and (1) of the Act." OR DER It is ordered that the Board's Order in this pro- ceeding (243 NLRB 769 (1979)) is amended as fol- lows. 1. Insert the following as paragraph 1(a) and re- letter the remaining paragraphs accordingly. 9 The Respondent requests that it not be held liable for backpay for the time period during which it relied on the joint labor-management grievance committee's decision We deny this request. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "(a) While its current collective-bargaining agreement with Building Material & Dump Truck Drivers Local 420, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is in effect, discontinuing its cement hauling operations at Livingston-Graham's Vernon and El Monte locations and selling and transferring its trucks to L-T Transport, Inc. at Redlands, with- out Local 420's consent." 2. Delete paragraph 1(b). 3. Substitute the attached notice for that original- ly issued by the Board. MEMBER DENNIS, concurring. I accept the Ninth Circuit decision as the law of the case and consequently would not defer to the joint committee's decision. I also agree with the fording that article XIX of the parties' contract is a valid work-preservation clause prohibiting the transfer of the cement hauling work. Accordingly, I would find that the Respondent, by transferring the work during the term of the contract, modified a specific term contained in the contract without obtaining the Union's consent, and thus the mid- term modification of the contract violated Sections 8(a)(5) and 8(d) of the Act.' See my dissent in DeSoto, Inc., 278 NLRB 788 (1986). I I also agree that it is unnecessary to decide whether the Respondent's conduct was inherently destructive of employee interests APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. To refrain from any and all such activities except to the extent that the employee's bar- gaining representative and employer have a collective-bargaining agreement which imposes a lawful requirement that employees become union members. WE WILL NOT, while our current collective-bar- gaining agreement with Building Material & Dump Truck Drivers Local 420, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is in effect, discontinue our cement hauling operations at Livingston-Graham's Vernon and El Monte locations or sell or transfer our trucks to L-T Transport, Inc. at Relands, with- out Local 420's consent. WE WILL NOT discontinue our cement hauling operations at Livingston-Graham's Vernon and El Monte locations or sell or transfer trucks to L-T Transport, Inc. at Redlands, or discontinue any other work encompassed within our collective-bar- gaining agreement with Building Material & Dump Truck Drivers Local 420, Internaitonal Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, with the object of escaping the obligations imposed by the collective-bargain- ing agreement. WE WILL NOT in any other manner interfere with, restrain, or corece employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL continue to recognize and, on request, bargain collectively with Local 420 as the exclu- sive representative of the employees in the follow- ing unit: All drivers of plant and pit trucks, two-axle dump trucks, three-axle dump trucks, semis, truck-trailer and semis, cement-trsins, mixer trucks, flats, flat truck-trailer and semis, mobile service trucks, mobile sweeper driver, ware- housemen, automotive repairmen, batch plant operators, bunkermen, gas station operator and/or fueler, loaders, washers, greasers, fire- men, and chippers employed by Livingston- Graham within the geographical jurisdiction of Local 420, excluding all employees properly covered by other bargaining units, office cleri- cal employees, technical and professional em- ployees, guards, watchmen, and supervisors as defined in the National Labor Relations Act, as amended. WE WILL resume the cement hauling operations formerly carried on at Livingston-Graham's Vernon and El Monte locations transferring back to Livingston-Graham's Vernon and El Monte lo- cations the trucks which it previously sold and transfered to L-T Transport, Inc. WE WILL offer to Louis H. Bering, Kris A. Borum, William R. Cannon, Anthony Giangreco, Clarence Hudson, James Jaworski, Harry D. Potts, Robert L. Reilly, Carmen Rosselli, Robert L. Schaffer, Donald H. Thomas, and James A. Wilson BROWN CO. 787 immediate and full reinstatement to their former any loss of pay they may have suffered as a result positions of employment as drivers of cement of this discrimination, with'interest. trains, dismissing, if necessary, anyone who may have been hired to perform the work that they had BROWN COMPANY; BROWN COMPA- been performing prior to ' December 31, 1975, or, if NY, LIVINGSTON-GRAHAM DIVISION; their former positions no longer exist, to substan- BROWN COMPANY, TRI-CITY CON- tially equivalent positions without prejudice to CRETE DIVISION; L-T TRANSPORT, their seniority or other rights and privileges previ -' INC: ously enjoyed,-and WE WILL make them whole for I