Stroehmann Bakeries

STROEHMANN BAKERIES Keystone Bakery, Division of Stroehmann Bakeries, Inc. and Bakery Drivers Union, Local No. 485 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO.' Case 6-CA-19754 9 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 12 August 1987 Administrative Law Judge Harold Bernard Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief, 2 and the General Counsel filed an answering brief in opposition to the Respondent 's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,3 and conclusions4 and to adopt the recommended Order. 5 i On 1 November 1987 the Teamsters International Union was read- mitted to the AFL-CIO Accordingly , the caption has been amended to reflect that change. 2 The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. a The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cit. 1951). We have carefully examined the record and find no basis for reversing the findings. The Respondent has also excepted to the judge 's finding that it refused to arbitrate the grievance filed concerning wage rates for the cake-only routes based on the alleged impasse in negotiations The Respondent con- tends that in December 1986 and January 1987 it sent three letters to the Union stating that it refused to arbitrate the matter because the Union was attempting to have an arbitrator establish a new term for the existing agreement The General Counsel contends that the judge did not find that impasse was the reason for the refusal to arbitrate , but rather that impasse was mentioned in the letters communicating a refusal to arbitrate We find it unnecessary to resolve this issue inasmuch as it is clear that, in any event, the Respondent refused to arbitrate the matter. We note that in discussing the collective-bargaining agreement the judge inadvertently referred to art. 17 as art. 27. This error does not affect the decision 4 In adopting the ,fudge's conclusion that the Respondent violated Sec. 8(a)(5) and Sec. 8(d) of the Act, we rely on the finding that the Union did not tacitly agree to reopen the contract . Further, we agree that the parties did not reach impasse on the issue of the compensation for driver- salesmen employed on the cake-only routes . Accordingly, we find it un- necessary to pass on the judge's discussion to the extent that it can be read as holding that had the Union agreed to reopen the contract, the issue of whether the parties has reached impasse would be irrelevant. 5 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U .S.C. § 6621 Interest on amounts accrued prior to I January 1987 (the effective date of the 1986 amendment to 26 U.S.C § 6621 ) shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) 17 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent , Keystone Bakery, Division of Stroehmann Bakeries, Inc., West Bridgewater, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order, except that the attached notice is substituted for that of the administrative law judge. 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. WE WILL NOT refuse to bargain with Bakery Drivers Union, Local No. 485 a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America by unilaterally during the term of our contract with the Union setting up cake-only delivery routes with lower wage rates not in conformity with the contract with respect to employees in the appropriate bargaining unit as fol- lows: All full-time and regular part-time wholesale sales drivers, route supervisors, truck washers and tractor trailer drivers employed by the Employer at its West Bridgewater , Pennsylva- nia facility, excluding all other employees, office clerical employees, guards, professional employees, and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL, on the Union's request, rescind our unilateral action setting up cake-only delivery routes with lower wages not in conformity with our contract with the Union and restore the wage rates to conform to the provision contained in such agreement effective 1 July 1985 to 30 June 1988. WE WILL make whole, with interest , the employ- ees in the above-described unit for any losses or ex- penses they may have suffered as a result of our unilateral conduct during the term of our contract with the above-named Union in setting up cake- 287 NLRB No. 3 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD only delivery routes and decreasing the employees' wages. KEYSTONE BAKERY, DIVISION OF STROEHMANN BAKERIES, INC. Mary Theresa Enyart, Esq., for the General Counsel. David H. Allshouse, Esq., of Williamsport, Pennsylvania, for the Respondent. John A. Denham, Executive Officer, of Pittsburgh, Penn- sylvania, for the Charging Party. DECISION STATEMENT OF THE CASE HAROLD BERNARD JR., Administrative Law Judge. I heard this matter 7 and 8 April 1987 in Pittsburgh, Penn- sylvania, pursuant to complaint allegations that Respond- ent unilaterally modified provisions in a current collec- tive-bargaining agreement with the Union in midterm, thereby violating Section 8 (a)(5) and Section 8(d) of the Act. Based on the entire record ' in this case, including the demeanor of witnesses and briefs filed by the parties, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a Pennsylvania corporation engaged in the business of baking , selling, and delivering bread, rolls, cake, and other bakery products, with an office and place of business involved in West Bridgewater, Pennsyl- vania. Respondent annually ships goods valued in excess of $50,000 directly to points outside Pennsylvania and, as admitted, I find Respondent is an employer engaged in commerce within the meaning of the Act. As the record shows and is further admitted, I find that the Union is a labor organization within the meaning of Section 2(5) of the Act and is the exclusive represent- ative of employees in the appropriate bargaining unit de- scribed below for purposes of collective bargaining as defined in the Act. The Appropriate Bargaining Unit Although the parties' current collective-bargaining agreement, General Counsel's Exhibit 2, contains no spe- cific provision spelling out the bargaining unit in the usual Board terminology, it is clear from the testimony and General Counsel's Exhibit 2 that the parties' stipulat- ed appropriate bargaining unit set forth below includes categories that have been contained in successive con- tracts for over 20 years, General Counsel's Exhibit 2, page 18 subparagraph (d), including the classification of route supervisors . In view of their long history of inclu- sion in the bargaining unit and the absence of any foun- dation in the record for excluding them as suggested by Respondent's demurrer from stipulating to their inclu- sion, I find that route supervisors are included in the ' Counsel's motions to correct typographical errors in the transcript are granted long-established and otherwise fully stipulated appropri- ate bargaining unit described as follows: All full-time and regular part-time wholesale sales drivers, route supervisors, truck washers and tractor trailer drivers employed by the Employer at its West Bridgewater, Pennsylvania facility, excluding all other employees, office clerical employees, guards, professional employees, and supervisors as defined in the Act II. THE UNFAIR LABOR PRACTICES A. Background The parties' current collective-bargaining agreement is effective from 1 July 1985 until 30 June 1988 On 5 August 1986 Respondent inquired whether the Union would discuss the possibility of Respondent 's establishing delivery routes devoted entirely to sale and transporta- tion of cake-type products , excluding bread, rolls, and other noncake goods that would continue to be trans- ported by existing combination-route drivers. To keep matters clear, it should be noted that some existing com- bination-route drivers would continue to deliver their normal amount of cake goods-only some of the combi- nation routes would lose all the cake goods to the two "new" pure cake routes. B. Discussions Between the Parties There were various contacts between the parties con- cerning Respondent's proposal , including a single meet- ing on 18 August , exchange of letters, and telephone calls thereafter Disagreements arose over Respondent's proposal for a "cap" or ceiling on the commission of cake route driver salesmen, a lower than existing con- tract rate for new hires, and a separate seniority list- there was some movement by Respondent , but not enough to satisfy the Union that led to still further movement but without immediate success. On 4 Septem- ber Respondent contacted the Union , seeking a response, and was informed that the Union expected the Company to remain with the contract terms then in effect "until we the parties could reach something." Corporate Per- sonnel Manager Joseph Guinta told Union Executive Of- ficer John Denham that the Company was planning on having pure cake routes in the Pittsburgh market on 29 September and the Company had already started their programming as far as advertising . Guinta also told Denham if he could not reach agreement with Local 485, he would possibly have to send the cake routes in from other areas, mentioning Uniontown, a nearby locale, and Local 491, a Teamster local there. In a phone call on 15 September , Denham recalls Guinta informed him, inter alia, Denham was having a company vice president consider if there was any "fur- ther consideration from the employer to the union." Guinta admitted that the Union protested to him during the above discussions that the Company could not cut wages during a contract , but declared he informed Denham in response that it was a new classification under advice from the Company's labor relations officer. STROEHMANN BAKERIES Guinta also testified to phone calls on 18 and 19 Septem- ber during which he told Denham time was getting short, and described the latter call as involving, inter alia, the use of the word "impasse" during an exchange between Guinta and Denham . Guinta admitted, however, that Denham told him during a 18 September phone call that the Union was still willing to discuss the matter, and such willingness was never withdrawn. He further admit- ted that the Company had reached the decision to put in new cake routes in July 1986-with a time target of mid- September, so that by the time of new contract negotia- tions there would be experience with the new wage rates. C. Cake Routes Established In any event, the Union was advised that cake routes, with their own new rates , 7-1/2 percent commission, went on the market 29 September 1986, and Guinta ad- mitted the base pay for "cake" routes under the new rate was less than the contract rate of $197 .50 for drivers, and that the new commission of 7-1/2 percent was less than the contract rate of 9 percent for a combined reduction in income of $50 a week for the Company's drivers. He also admitted the Company felt it was entitled to these lower rates based on what the competition paid its cake drivers and that the Union never agreed to the changes. On 9 October a grievance was filed protesting the change in wage rates by driver Stuart Rhinelander, transferred from a combination route over to a pure cake route, but the Respondent rejected it and refused to arbi- trate the matter, citing an alleged impasse during negoti- ations on the subject as its basis for instituting the changes. General Counsel's Exhibits 5 and 6. Rhinelander testified he later left the cake route be- cause he was working longer hours but receiving less income-some $30 to $40 less per week than he earned on the combination route. D. Positions of the Parties Respondent maintains it was privileged to form two new pure cake routes with different rates of pay and conditions of employment in midterm of the existing contract because this action changed no classification or term of employment appurtenant thereto "contained" in the existing agreement, hence there was no unlawful modification as prohibited by the Act. In brief, Respond- ent argues there never was a classification of driver salesman for a pure cake route described in the contract en haec verba, that is to say in so many words . Further, Respondent says, while the action it took concerned a mandatory subject of bargaining , it was privileged to do what it did because the parties had bargained to impasse on the subject, permitting the Employer to go ahead. The General Counsel argues that any impasse is irrele- vant inasmuch as Respondent's conduct indeed impermis- sibly modified existing contract provisions during the midterm in the parties' agreement and in any event there was no impasse justifying its unilateral action. 19 E. Analysis In my view, Respondent's position rests on unsolid ground for the following reasons. For over 20 years the driver-salesmen have been as- signed to relatively the same task , delivering bread, rolls, and bakery products, including cake involving relatively identical skills, procedures , hours, customer routes, and duties-loading, delivering, unloading, and placing Re- spondent's bakery goods on display at customer loca- tions-after which the drivers return to Respondent's lo- cation and account for receipts. The record shows that the parties ' contracts have cov- ered the performance of such task , involving such skills by specific inclusions of wage rates for all the drivers in the established bargaining unit, which Respondent con- cedes includes the cake route salesmen . In addition, as shown by the current agreement, article 27, section (a) states "All wholesale sales drivers shall receive [certain amounts of base pay]" (emphasis added ); and that "Com- mission on all sales shall be such and such" (emphasis added), reflecting a rather clear intent to establish the compensation for all wholesale drivers of the Company engaged, as they always have been engaged , in the sale and delivery of all bakery products of this Respondent, including bread , rolls, and cake without any exceptions or qualifications. Further, contract article 12, section B refers to a requirement that "Sales drivers to receive full pay and commission on all bakery products delivered in his territory . . ." while section C provides: All bakery products sold . . . must be delivered by a regular wholesale sales driver and paid for in ac- cordance with the wage scale'set forth in article 27. [G.C. Exh. 2.] A more thorough and conscientious effort to set the compensation for Respondent 's employees employed to deliver all of its bakery products, including cake, for the term of the parties' successive contracts can hardly be imagined by the mind of man. Nor does straining semantics beyond the reasonable by the claim that "cake" routes entail a new classification not contained in the contract carry any weight . Bakery products delivered by the driver-salesmen always includ- ed a significant amount of cake, in some cases 25 per- cent; there was not anything really new or different about the type of skills, duties, responsibilities, or job characteristics attendant when Respondent took all the cake from 5 of its 27 combination-route drivers and set up 2 pure cake routes involving many of the same cus- tomers and all of the same, practically identical skills. The alleged difference in handling cake only rather than bread and cake together do not even warrant recitation, they are so miniscule in nature. The remaining 22 sales- men continue to drive combination cake-bread routes, Respondent having transferred one employee to cake route and hiring a new employee for the second exclu- sively cake route, most of whose training was on a com- bination route with 1 week estimated for "training" to do cake alone. Repainted used trucks and different colored uniforms are used in the operation of cake routes. 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As noted above, there is ample evidence to support the finding that the compensation unilaterally set for the cake route drivers by Respondent was not in accordance with the commission and base pay scales for all driver route salesmen contained in the parties' current contract, such being less than the proscribed amounts agreed to by the parties when the contract stabilizing wages for all such employees was executed and Was further at odds with and therefore further modified the other provisions in the contract described above, as well, articles 12, 27, and the noted subsections contained therein. Respondent counsel's remaining arguments that the Union agreed to wage-reopener type negotiations permit- ting a unilateral implementation of the contract wage modifications on impasse and/or that the Union waived its rights by discussing the matter are unsupported by the record facts or by law. In this connection I note that the mere use by Guinta and Denham, the parties' negotiators but not necessarily conversant with the legal concept of the term "impasse" during a September 1986 telephone exchange, is insuffi- cient to establish by a preponderance in the evidence that the parties were in fact at impasse, even assuming in Respondent's favor that such would be relevant here, which it is not. After all, as Denham testified, for all the Union knew, Respondent was contemplating putting the cake-only routes into effect via a sister union Local 491, in nearby Uniontown if Denham's local would not agree to lower pay scales and thus the latter Local 485 would not necessarily have brought to bear its own best eco- nomic offer-the situation not appearing-to that extent-as requiring it to do so there being no particular reasons why Local 485 viewed cake-only routes as a de- sirable thing for its driver-members In fact, Guinta raised that very possibility specifically to Denham, as de- scribed above, and the Union-it is uncontested, mani- fested that it did not object to the establishment of cake- only routes per se-it never in fact objected to that during negotiations, but only insisted on applying the ex- isting contract provision covering drivers' compensation absent improvements thereto in the negotiations, as to which there had been promising progress. Even on 18 September Denham communicated the Union's continu- ing willingness to discuss matters further and never with- drew the receptivity to further negotiations on the sub- ject. In this light, it cannot be concluded that there was no ray of hope for any kind of success in the parties' ne- gotiations so as to establish a legal impasse . Taft Broad- casting Co, 163 NLRB 475, 478 (1967). Instead it is crys- tal clear, and I find, that Respondent was following its own self-imposed agenda and deadline, reached all the way back in July to place the routes in service by Sep- tember, as Guinta testified. Its unrelenting determination to do so is borne out by its advertising and administra- tive expenditures to that end beforehand, which lend a kind of confirming momentum towards the view of a September goal, rather than such implementation being the result of a self-described impasse. It is, of course, in no way a waiver of the Union's rights that it consented to discuss the matter in an effort to respond to the Em- ployer's initiatives in this matter-which as described, arose purely from Respondent's view that it was "enti- tled" to a lower wage cost for driver-salesmen employed in cake-only routes because the competition paid less to such drivers. A & W Foods, 276 NLRB 129, 130-131 (1985), and Herman Bros., Inc, 273 NLRB 124, 126 (1984). Carrying Respondent counsel's logic further, the artifi- ciality emerges even more clearly, for under its cover, Respondent could as easily set up a bread only, or rolls only, or cookies only routes-any bakery product in fact, and due purely to such reshuffling claim that the careful- ly wrought contract provisions regarding compensation for the same drivers, employing the same skills, deliver- ing bakery products to the same customer locations under identical or similar conditions, could be swept aside without the other contracting party's consent, de- stabilizing the 20-year long-established bargaining rela- tionship and indeed replacing it with potentially chaotic uncertainty and discord. A result clearly at odds with the Act's design to promote stability in such matters, and therefore in violation of Sections 8(a)(5) and 8(D) of the Act, which prohibits unilateral midterm modifications of an existing collective-bargaining contract by either party thereto. By its conduct unilaterally establishing cake-only routes with different wage scales than contained in the parties' then current agreement, thereby modifying such contract provisions described and identified specifically above, in midterm without the Union's consent, I find that Respondent violated its collective-bargaining respon- sibilities under Section 8(a)(5) of the Act as well as Sec- tion 8(D) therein. Safehte Glass, 283 NLRB 929, 939 (1987), and cases cited, especially Milwaukee Spring Divi- sion, 268 NLRB 601, 602 (1984), Rice Food Markets, Inc., 255 NLRB 884, 887 (1981); Bay Shipbuilding Corp., 263 NLRB 1133 (1982); Herman Bros., supra; and, Oak Cliff- Golman Baking Co., 207 NLRB 1063, 1064 (1973) CONCLUSIONS 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 is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The bargaining unit described hereinabove is an ap- propriate unit for the purpose of collective bargaining within the meaning of the Act. 4. At all times material herein the Union has been and is the exclusive bargaining representative of all employ- ees in the aforementioned appropriate bargaining unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally setting up cake-only delivery routes with lower wage rates not in conformity with a current collective-bargaining agreement with the Union without the Union's consent, Respondent violated Section 8(a)(5) and Section 8(d) of the Act. 6 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. STROEHMANN BAKERIES 21 REMEDY2 The Respondent, it will be recommended, will be or- dered on the Union's request to rescind its unilateral action setting up cake-only delivery routes with lower wage rates not in conformity with the parties' contract and make the unit employees whole for any losses they may have suffered as a result of this conduct. Such sums shall be computed in the manner set forth in Ogle Protec- tion Service, 183 NLRB 682, 683 (1970), with interest as prescribed in Florida Steel Corp., 231 NLRB 651 (1977); see generally Isis Plumbing Co., 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, Keystone Bakery, Division of Stroehmann Bakeries, Inc, West Bridgewater, Pennsyl- vania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with the Union by unilaterally during the term of its contract with the Union setting up cake-only delivery routes with lower wage rates not in conformity with the contract with re- spect to employees in the above-described unit without the Union's consent. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On the Union's request, rescind its unilateral ac- tions and restore the wage rates of employees in the above-described unit affected by Respondent's unilateral actions so as to conform to the provisions contained in the contract with the Union effective 1 July 1985 to 30 June 1988. (b) Make whole the employees in the unit, as set forth in the section of this decision entitled, "The Remedy" for any losses or expenses they may have suffered as a result of the unilateral conduct of Respondent setting up cake-only delivery routes with lower wage rates not in conformity with its contract with the Union during the contract's term. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amounts due under the terms of this Order. (d) Post at each of its places of business in West Bridgewater, Pennsylvania, copies of the attached no- ticed marked, "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 2 I do not see the need for a visitatorial provision type remedy a If no exceptions are filed as provided by Sec 102 46 of the Board's ° If this Order is enforced by a judgment of a United States court of Rules and Regulations, the findings, conclusions, and recommended appeals, the words in the notice reading "Posted by Order of the Nation- Order shall, as provided in Sec 102 48 of the Rules, be adopted by the at Labor Relations Board" shall read "Posted Pursuant to a Judgment of Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcing an Order of the National poses Labor Relations Board "