Fayard Moving & Transportation

26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Fayard Moving & Transportation and International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , Locals 991, 270, and 988, AFL-CIO.' Case 15-CA-10357 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 12, 1988, Administrative Law Judge J. Pargen Robertson issued the attached decision. The Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings, flndings,2 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Fayard Moving & Transportation, Gulfport, Mississippi, New Orleans, Louisiana, and Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' On November 2, 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 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 Cir. 1951) We have carefully examined the record and find no basis for reversing the findings Clement Kennington, Esq., for the General Counsel. Edward Champagne, Esq. and Sidney F. Rothschild, Esq., of New Orleans, Louisiana, for the Respondent. Otto Simon, Esq. (Simon, Wood & Crane), of Mobile, Ala- bama, for the Petitioner. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON , Administrative Law Judge. This matter was heard before me on 22 October and 12 November 1987 in New Orleans, Louisiana , pursuant to a complaint issued on 31 July 1987. That complaint was based on a charge filed on 6 July and amended on 5 August 1987. In its answer, Respondent admitted the commerce and jurisdictional allegations. Respondent also admitted that it is an employer engaged in commerce and that Charging Parties are labor organizations within the meaning of Section 2(5) of the Act. The complaint alleges Respondent violated Section 8(a)(1) and (5) of the Act by refusing to execute a writ- ten contract embodying agreement of the parties. The parties have had a long history of collective bar- gaining. Beginning in 1968 when Locals 270 and 991 were certified as representatives of employees in Re- spondent's Gulfport, Mississippi, and New Orleans, Lou- isiana facilities, Respondent and the Local Unions have agreed to successive collective-bargaining agreements. The most recent agreement expired on 31 October 1986. The most recent contract involved bargaining units in New Orleans, Louisiana; Gulfport, Mississippi;' and Houston, Texas, of "all local and long distance freight and furniture drivers, packers, loaders and unloaders, warehousemen , truck helpers and mechanics excluding all other employees, including office clericals, supervi- sors, guards and watchmen as defined in the Act [sic]." The parties exchanged contract proposals in October 1986. On 16 December 1986, the parties met in New Or- leans. According to testimony by Jerry Burnthorn , secre- tary-treasurer and business agent for Local 991 , the par- ties reached agreement during that meeting. Burnthorn, acting on behalf of all three locals, presented an "interim agreement" to Respondent's president, Ed Fayard. Fayard signed that interim agreement on 6 January 1987.2 Burnthorn signed the interim agreement on 7 Jan- uary 1987. The interim agreement provides: INTERIM AGREEMENT BETWEEN TEAMSTERS LOCAL UNION 991, TEAMSTERS LOCAL UNION 270, TEAMSTERS LOCAL UNION 988, AND FAYARD MOVING AND TRANSPORTATION, INC. It is agreed that one company wide contract will serve the Mobile, Alabama, New Orleans, Louisi- ana, and Houston, Texas local unions. All parties of the contract that expired October 31, 1986 are agreed to except as amended in this letter of agreement and will remain in effect through Oc- tober 31, 1989. The Union agrees that the three (3) day sick leave will only be paid for proven illnesses or accident when verified by a doctor, and will not be pyramid- ed or paid when not used. Fayard Moving and Transportation agrees to keep in effect the Automated Benefits Services group in- surance with the following effective rates: November 1, 1986440.60 per week November 1, 1987-42.90 per week ' Although Respondent has a facility in Gulfport , that facility is served by Local 991 out of Mobile , Alabama 2 Although Fayard wrote the date January 6, 1986 , all witnesses agree that he actually signed the agreement on January 6, 1987. 290 NLRB No. 4 FAYARD MOVING & TRANSPORTATION 27 November 1, 1988-45.00 per week WAGES November 1, 1986 No increase November 1, 1987 $0.25 cents per hour increase ' 1/4 cents per mile increase November 1, 1988 $0.25 cents per hour increase 1/4 cents per mile increase Ed Fayard admitted that he read , then signed, the in- terim agreement on 6 January 1987. However, Fayard testified that he understood the interim agreement to be nothing more than an agreement to continue to apply the terms of the 1983-1986 collective-bargaining contract, with the specific exceptions noted in the interim agree- ment, until the parties were able to negotiate a new con- tract. Jerry Burnthorn, on the other hand, contended that the parties agreed to a contract on 16 December 1986 and that the interim agreement was executed pre- liminary to execution of the full written contract. That written contract was prepared by Burnthorn in accord with the terms of the interim agreement. Subsequently, Ed Fayard refused to sign, the written contract Jerry Burnthorn presented the written contract to Ed Fayard on 2 February 1986. Fayard specifically refused to sign the contract when he and Burnthorn met on 19 March 1987. Subsequently, Fayard again refused to sign the complete written contract on 7 May 1987 Present at the 7 May meeting were the business agents of all three locals, Jerry Burnthorn of Local 991, Ed Turner of Local 988, and Wallace Collins of Local 270, along with Ed Fayard's daughter Cindy Piper, who is Respondent's office manager, and Fayard's sister Leta Blake, who is an officer of Respondent. According to Cindy Piper, the Locals, during the 7 May meeting , agreed to attempt to reconcile Ed Fayard's problems with the contract, through a "side agreement" which would not be included in the written contract. Both Jerry Burnthorn and Ed Turner disputed Piper's testimony. Burnthorn and Turner testified that the Locals never agreed to a "side agreement." Ed Fayard, who also testified about the 7 May meeting, did not testify about a "side agreement." Conclusions There is a dispute as to what occurred when the par- ties met on 16 December 1986 in New Orleans Howev- er, the parties agree that an interim agreement was exe- cuted by both Respondent and Jerry Burnthorn. Burn- thorn testified, without rebuttal, that he was acting on behalf of all three Locals when he signed the interim agreement. The Board has consistently refused to permit a party to a written agreement to vary the terms of the agree- ment by providing a "contemporaneous or prior oral agreement or undertaking." Air-Vac Industries, 259 NLRB 336, 342 (1981). I am bound to accept the parties' interim agreements as conclusive proof of the parties' understanding. The in- terim agreement is clear . By refusing to execute the pre- sented collective-bargaining agreement that was prepared in accord with provisions of the interim agreement, Re- spondent violated Section 8(a)(1) and (5) of the Act. See Fashion Furniture Mfg., 279 NLRB 705 (1986); Georjan, Inc., 281 NLRB 952 (1986). Moreover, I find that the Union did not agree on 7 May to attempt to reconcile Respondent's problems through a "side agreement." Both Jerry Burnthorn and Ed Turner testified credibly that they did not agree to such an arrangement. Additionally, Ed Fayard, who was present during that meeting, never claimed that the Union agreed to a "side agreement." Therefore, I dis- credit the testimony of Cindy Piper that the Union agreed to treat Fayard's problems in a "side agreement." CONCLUSIONS OF LAW 1. Fayard Moving & Transportation, Inc. is an em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Locals 991, 270, and 988 are labor organizations within the meaning of Section 2(5) of the Act 3 By refusing to execute and sign the collective-bar- gaining agreement agreed on between it and the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The above unfair labor practices affect commerce within the meaning of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act I recommend that Respondent be ordered to execute the collective-bargaining agreement agreed on with the Union and to comply with its terms retroactively to 1 November 1986. In addition , the Respondent shall make whole employees in the bargaining units and the Union for losses, if any , suffered , because of Respondent's refus- al to sign the' agreement in the manner set forth in Ogle Protection Services, 183 NLRB 682 ( 1970), plus interest as described in New Horizons for the Retarded, 283 NLRB 1173 (1987).3 On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed4 3 Under New Horizons for the Retarded, interest is 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 accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Flori- da Steel Corp, 231 NLRB 651 (1977) 4 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings , conclusions , and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER APPENDIX The Respondent, Fayard Moving & Transportation, Inc., Gulfport, Mississippi; New Orleans, Louisiana; and Houston, Texas, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing and refusing to execute the collective-bar- gaining agreement agreed on by the Respondent and Locals 991, 270, and 988. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of 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 request by the Locals, forthwith execute the contract on which agreement was reached with the Union or, if the Union does not request such execution, bargain collectively in good faith, on request, with the Union as the exclusive representative of the employees in the bargaining units and, if an understanding is reached, embody such understanding in a signed contract. (b) Give retroactive effect to the terms and conditions of employment of the contract, and make whole its em- ployees and Locals for any loss they suffered by reason of Respondent's failure to execute the agreement in the manner set forth in this decision. (c) Post at its Gulfport, Mississippi, New Orleans, Louisiana, and Houston, Texas facilities copies of the at- tached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 15, after being signed by the Respondent's authorized representative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices 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 material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 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 or- dered 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 representatives of their own choice To act together for other mutual aid or protec- tion To choose not engage in any of these protected concerted activities. WE WILL NOT fail or refuse to execute the collective- bargaining agreement agreed on between us and Locals 991, 270, and 988 of International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO. 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 Section 7 of the Act. WE WILL, on request by the Union, forthwith execute the contract on which agreement was reached between us and the Locals or, if the Locals do not request such execution, WE WILL bargain collectively in good faith, on request, with the Locals as exclusive representatives of our employees in the bargaining unit in Gulfport, Mis- sissippi; New Orleans, Louisiana; and Houston, Texas, and, if an understanding is reached, embody such under- standing in a signed contract. WE WILL give retroactive effect to the terms and con- ditions of employment of the contract, and make whole employees and the Locals for any loss suffered by reason of our failure to execute the agreement, with interest. FAYARD MOVING & TRANSPORTATION