Teamsters Local 284 (Columbus Distributing Co.)

TEAMSTERS LOCAL 284 (COLUMBUS DISTRIBUTING CO.) Teamsters Local Union 284, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO and The Columbus Distributing Company. Case 9-CB-7138 August 9, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On May 10, 1989, Administrative Law Judge Joel A. Harmatz issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering 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 briefs and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Teamsters Local Union 284, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO, Columbus, Ohio, its officers, agents, and representatives, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(c). "(c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." ' The Respondent asserts that the judge's credibility resolutions, find- ings of fact , and conclusions of law are the result of bias. After a careful examination of the entire record , we are satisfied that this allegation is without merit . There is no basis for finding that bias and partiality existed merely because the judge resolved important factual conflicts in favor of the General Counsel's witnesses. As the Supreme Court stated in NLRB Y. Pittsburgh Steamship Co, 337 U.S 656, 659 (1949), "[T]otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact " Furthermore, it is the Board's established policy not to overrule a judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Stand- ard Dry Wall Products, 91 NLRB 544 ( 1951), enfd . 188 F.2d 362 (3d Cir 1951) We find no basis for reversing the findings Y We shall correct the time for notification of the Regional Director Linda Finch, Esq., for the General Counsel. Jerry L. Riseling, Esq., of Columbus, Ohio, for the Re- spondent. Arthur A. Kola, Esq. (Squire, Sanders, & Dempsey), of Cleveland, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE 19 JOEL A. HARMATZ, Administrative Law Judge. This proceeding was heard in Columbus, Ohio, on March 14, 1989, upon an unfair labor practice charge filed on No- vember 7, 1988, and a complaint issued on December 20, 1988, alleging that the Respondent violated Section 8(b)(3) of the Act by refusing, upon the Employer's re- quest, to negotiate wages and other specified employ- ment conditions pursuant to a reopener in a subsisting collective-bargaining agreement . In its duly filed answer, the Respondent denied that any unfair labor practices were committed . Following close of the hearing, briefs were filed on behalf of the General Counsel, the Charg- ing Party, and the Respondent. Upon the entire record in this proceeding, including consideration of the posthearing briefs, and my opportu- nity directly to observe the witnesses while testifying and their demeanor, it is found as follows. 1. JURISDICTION The Charging Party is a corporate employer with a place of business in Columbus, Ohio, from which it oper- ates a wholesale beer distributorship . In the course of said operations, during the 12 months preceding issuance of the complaint, a representative period, it purchased and received at said facility products , goods, and materi- als valued in excess of $50,000 directly from points out- side the State of Ohio. The complaint alleges, the answer admits, and I find that the Charging Party is now , and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The record discloses that the Respondent exists for the purpose of representing employees and negotiates and administers agreements setting forth employment terms with employers, including the Charging Party herein. Accordingly, it is concluded that the Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues This proceeding is limited to an 8(b)(3) allegation based upon the Union's refusal to participate in midterm negotiations pursuant to a reopener agreement. The Union defends essentially on grounds that , under the agreed-upon conditions, the Employer had no right to reopen. Alternatively, the Union argues that a genuine dispute exists as to the meaning and interpretation of that agreement, and hence the dispute should be deferred to arbitration in accord with procedures defined in Dubo Mfg. Corp., 142 NLRB 431 (1963). 296 NLRB No. 7 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. The Facts The dispute stems from the Union's separate contract renewal negotiations in 1987 with the two dominant malt beverage distributors in Franklin County, Ohio. Thus, the Charging Party, Columbus Distributing Company, is the exclusive distributor for the Anheuser-Busch product line. Its rival, Hi-State Beverage, handled the Miller line, together with Lowenbrau, Pabst, Stroh's, and Coors.' Prior to the summer of 1987, the drivers, helpers, and warehousemen of both Hi-State and Columbus were rep- resented by the Respondent in separate collective-bar- gaining units. Agreements with the rival distributors ex- pired on May 31, 1987. Both embarked upon separate contract renewal negotiations with the Union during the spring of that year. After five negotiating dates, Columbus settled on the basis of a 3-year agreement, scheduled to expire on May 31, 1990. That agreement was achieved with an eye toward the possibility that an accommodation at Hi-State might prove more difficult.2 At that location, a strike was within contemplation and Columbus was wary that the Union might fall short of its expectations. Therefore, Columbus, on May 22, 1987, during renewal negotia- tions, proposed reopener language to deal with that con- cern., The Union initially opposed, but later capitulated. On September 4, 1987, it executed a side agreement dated May 29, 1987. The terms were memorialized in letter form , in material part, as follows: We have entered into a collective-bargaining agreement which will expire on June 1, 1990. In ad- dition, we have agreed to a possible contract re- opener which is covered by this letter rather than in the contract. Both of us believe there will be a strike involving the employees of Hi-State Beverage strike. Howev- er, we have agreed that if you enter into a contract with Hi-State containing more favorable wages or con- ditions than in our agreement, or providing for a system of deliver, or method of determining drivers' compensation different from our agreement, then, ' In 1987, Hi-State was absorbed, together with two other famdy- owned distributorships, and consolidated into an outfit now known as the Robbins Beverage Group No party relied upon this reorganization as having any relevance to the issues in controversy here 2 A profile of the Hi-State negotiations was provided by Al Benack, the Respondent's business agent. He confirms that drastic "give backs" were sought by Hi-State, then, the number one distributor in the area. Central to Hi-State's agedda was its demand for elimination of commis- sions for driver salesman , through substitution of a straight hourly rate. According to Benack , this albne would cost drivers from $8000 to $40,000 annually. To worsen matters, Hi-State also sought reduced vaca- tion benefits and elimination of the pension plan. Against this back- ground, Benack was alert to the fact that these hegotialions would not be completed in a very short time, and he admits that , by late May, a strike had become imminent. a See It Exh 3(c). The initial proposal stated. Opener upon 30 days notice if-Hi-State settles for better, or after Sept . 1, Hi State is operating and servicing customers without con- tract with you Economic recourse for both The Union's counterproposal , apart time limitations, expressed two contingencies ( 1) Hi-State settles for a better contract , or (2) by Septem- ber I, Hi-State strike continues and it is operating at full capacity. R. Exh 3(d). after June 1, 1988, we will have the right to reopen our contract upon thirty (30) days notice to negoti- ate with respect to wages, methods of delivery and load limits. However, a possible outcome of the strike could be that Hi-State will be operating in a non-union status. That is, Hi-State, either by using replace- ments or present employees willing to cross the picket line, will be operating without a contract and on terms and conditions more favorable than our agreement. You have agreed that if this occurs, we will have the same right to reopen the contract. It is conceivable that through some sale, assign- ment, transfer or disposition, the legal identify of the company now called Hi-State may change. You are agreeing to protect us from competition from the owners of what is now the "Hi-State" business. If that business should some way be acquired by or transferred to some other entity or person and if that entity operates without a contract with you, we would have the same right to reopen as stated above. If, under any of the above circumstances, the contract is reopened, both parties would have the right to economic recourse if no agreement is reached. [Emphasis supplied.] As anticipated, the Respondent was unable to achieve agreement at Hi-State. A strike began on June 1, 1987. The strikers were replaced, and on June 19, 1987, the Respondent was decertified at that location . Thus, the Miller line, including the highly formidable "Lite" beer, along with Stroh's and Coor's, from tht juncture, would be handled by nonunion drivers, helpers, and warehouse- men. This was accomplished at wage rates, and probably benefit levels, which were substantially lower than those called for by the union contract formerly in effect at Hi- State, as well as the economic terms to which Columbus was bound under its recent settlement.4 In consequence, Columbus, by letter dated October 7, 1988, notified the Union as follows: In accordance with the May 29, 1987 letter at- tached to the current contract, we wish to exercise our right to reopen the contract for the purposes of negotiating over wages, methods of delivery arid load limits. 4In its posthearing brief the Respondent states . "There was no evi- dence presented . . . to establish Robbins Beverage's cost of delivery per case versus the current cost of delivery per case by Columbus Distribut- ing." On the contrary , the record shows that strike replacements hired by Hit-State were paid a starting rate of $7 hourly. During their first year, they were awarded 25-cent increases at 90-day intervals, and in their second year, at 180-day Intervals, to a maximum of $10 hourly after 5 years In contrast , before May 31 , 1987, drivers earned between $28,000 and $54,000 annually Warehousemen earned $12 hourly. In addition, va- cation benefits were reduced , and Hi-State no longer participated in the Teamsters-supported multiemployer pension and welfare plans. These newly depressed terms obviously enabled Hi-State to get products to cus- toiners with labor costs substantially beneath those substained by Colum- bus Distributing for this same vital phase of their respective operations TEAMSTERS LOCAL 284 (COLUMBUS DISTRIBUTING CO.) 21 Therefore, I would like to suggest commencing such negotiations on either November 17 or 18, at our conference room facilities. At this point, we are considering the possibility of converting from route sales to a pre-sell method of delivery. However, before deciding on this ap- proach, we believe your input and that of the em- ployees would be most helpful. Please let me know which of these dates, or any others, would be convenient for you. In the mean- time if you have any questions , please feel free to contact me at your convenience. The Union responded by letter dated October 14, 1988, as follows: I am in receipt of your letter of October 7, 1988, requesting the right to reopen the contract between the Local and your Company to negotiate wages, methods of delivery and load limits . We do not be- lieve you have the right to reopen the contract in accordance with the terms of the letter dated May 29, 1987 for two reasons. First of all, as we review the letter . . . it appears that it was the intent of the parties to grant Colum- bus Distributing Company a thirty (30) day window period commencing on June 1, 1988. Thus, we be- lieve that notification had to be given and received by the Union by July 1, 1988 in order to reopen the contract. Secondly, the purpose of the right to reopen was to protect your Company and our members from any resolution of the Hi-State matter that would result in a competitive disadvantage to you . While we do not know that wage rate or benefit package pro- vided by Hi-State or its successor to its non-union workers, we do know that whatever the rate it has not resulted in damage or a diminution of your busi- ness. In fact, the strike and resulting boycott at Hi- State has produced a substantial increase in your sales. According to the sales figures we have obtained comparing the first six months of 1987 to the first six months of 1988, Hi-State sales have declined 13.4% overall . Miller brands have decreased 10%, Strohs 15%, Coors 2.5% and Pabst 19%. During the same period, your sales have correspondingly increased. Thus, the premise upon which the right to reopen was based has not been met. Within the framework of the existing contract, we would agree to discuss with you the possibility of converting to a pre-sale method of distribution. However, this should not be interpreted as agreeing to reopen the contract. [Emphasis added.] By letter of October 18, 1988, Columbus threatened to file unfair labor practice charges, should the Union adhere to its stated position , and also opposed the Union's grounds with the following rationale: First, under the reopener provision, our company was not permitted to exercise this option until after June 1, 1988. The specific verbiage makes no men- tion of a thirty (30) day "window period." Rather, the agreement provides for a "thirty (30) days notice to negotiate." Second, the reopener provision specifically states that if Hi-State Beverage Company is servicing its customer base on or after June 1, 1988 without a contract with your union, we would have an un- equivocal right to reopen the contract to negotiate over wages, methods of delivery and load limits. As you know this scenario has in fact happened. The Union responded on October 28, 1988, stating, materially, as follows: While we still have some basic differences per- taining to the "opener addendum," I think we should meet to discuss your ideas. You probably are aware of the unrest you have created with your people by requesting to reopen the contract for ne- gotiations. In order to attempt to stop the rumor mill and reaffirm your intentions , we would be will- ing to meet with you ... . Our agreement to meet with you should not be viewed as an agreement to open the contract for ne- gotiations at this time. The instant unfair labor practice charge was filed on November 7, 1988 . Nevertheless, as requested, a meeting was held on November 17, 1988 . Neither wages, nor the load limit question was discussed .5 Conversion from a driver-sales to a presale arrangement was the issue con- sidered. 6 Columbus Distributing made a consultant avail- able, who explained the presale concept . During that ses- sion, the Business Agent Benack stated that conversion would not be opposed, provided that Columbus observed all terms of the subsisting bargaining agreement . Finally, when Columbus' general manager, Constantine Econo- mos, renewed the request for reopener discussions, the Union's president, Ray Finnerty, reasoned that there was no need to do so, as the Employer had presented no con- crete proposal. Economos explained that no proposal had been developed because the Company's position, includ- ing the means of remuneration under a presale arrange- ment was still in formative stages . The Union was told that the Employer would attempt to submit a proposal within 30 to 40 days. On January 4, 1989, the Company forwarded its initial offer to the Union. See General Counsel's Exhibit 6. The 5 Apparently, load limits were featured in the Respondent's bargaining pattern Under the current agreement , a helper was required on a truck after delivery of 1800 cases in a week . Prior to that , if a driver-salesman elected to work without a helper , he received an additional 10-cent-per- case bonus Since June 1, 1987, the bonus apparently has been unavailable to Hi-State drivers, and helpers are assigned where scheduled deliveries exceed 500 cases or 20 stops in any particular day. 6 Under the driver-salesman approach, drivers sell from inventories preloaded on their trucks, receiving base pay, plus commissions on each case This system was historically in effect at Columbus Distributing. In contrasting, under the presale method, salesman call upon customers within a route the day before , and drivers merely effect the delivery with trucks loaded only with merchandise previously ordered On January 1, 1987, Hi-State switched to a presale method, but continued to pay the drivers full commissions Since June 1, 1987, commissions have not been available for drivers or helpers at Hi-State 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union remained steadfast in its refusal to reopen. Thus, by letter dated January 23, 1989, the Union stated: .. . [W]e are willing to meet with you . . . to dis- cuss matters of mutual interest within the frame work of the existing contract, however, we do not intend to negotiate with you concerning changes in that contract as we believe the issue of the opener is a matter for arbitration and contract interpretation in light of the circumstances surrounding the last negotiations and your present economic situation. A meeting on February 16, 1989, concluded on this same note. Thus, after refusing to discuss the reopener issues, the Union's president, Finnerty, told Economos that "I guess we have agreed to disagree and we're going to have to let the NLRB decide whether we're going to have to meet and discuss those items." This position was again expressed in the Union 's letter of March 7, 1989, wherein , it was stated: We are willing to meet with you to discuss convert- ing to pre-sale method of distribution within the framework of the existing contract . It was obvious during the February 16th meeting that your only reason to reopen the existing contract was to make a mid-term modification in the method of distribu- tion. I should also restate that we do not believe you have an unfetered [sic] right to reopen the current collective-bargaining agreement unless you can prove that the result of the Hi-State strike placed you at a competitive disadvantage . It is obvious from your letter of February 2, 1989 that has not occurred. Conclusions The reopener, on its face, suffices to establish prima facie that a duty to bargain emerged upon the Charging Party's October 7 request. Equally clear is the fact that, at all times since, the Union has refused to participate in formal collective bargaining with respect to the specified reopener issues; namely, wages, method of distribution, and load limits. On the merits, the defense is premised upon the notion that the reopener was contingent upon "a showing of economic harm or competitive disadvantage by Colum- bus Distributing." On this basis, the Respondent asserts that the existing terms are frozen and not subject to ne- gotiation until May 31 , 1990, when the current contract expires. This position runs headlong into clear, unambig- uous language, consciously incorporated into the May 29 agreement . Pursuant thereto, wages , method of distribu- tion, and load limits became subject to renegotiation in the event of- Hi-State's continued operation on a nonunion basis without a contract and on terms and conditions more favorable than our agreement. Indisputable evidence substantiates that this is precise- ly what occurred. The Respondent's attempt to prove that the reopener agreement required more is thoroughly unpersuasive. Substantively, the May 29 agreement was not only free from ambiguity, but its terms are coexten- sive with all written proposals exchanged at the bargain- ing table prior to execution. See Respondent 's Exhibits 3(b),(c), and (d). To this extent, the parties' intent has been documented, yet this documentation is devoid of re- fernce to competitive disadvantage, economic harm, di- minshed sales, or market loss. The Respondent falls back upon parole testimony by the Union's business agent, Bud Benack,7 and two em- ployee-members of the negotiating committee. At best, their respective accounts offer little more than a self- serving attempt to place a gloss on clear language. They focus upon an abstract comment offered on behalf of Co- lumbus to dramatize the need for protection .8 However, ' Benack is an experienced negotiator , having served 14 years as a business agent. He was the Union's spokesman in both the Columbus and Hi-State negotiations He summarized statements by Columbus negotia- tors concerning reopener, as follows Both Dan Minor [Columbus' attorney and chief spokesman ] and Paul Jenkins, Jr [the owner's son] said, on several occasions during the final hours of negotiations, that their justification for seeking the re- opener was that they need to have some guarantee that they wouldn't be put into a competitive disadvantage as a result of one of several things happening at Hi-State beverage And the only way they could have that guarantee is if we would negotiate with them an opener that gave them the right that if that occurred , that we would come back and sit down and negotiate with them over those problems. And that was said more than once Benack, who must have been painfully aware that Hi -State was getting its beer on the street at a cost in wages of $8 to $40 ,000 less in payments to individual driver:salesmen, did not view this as demonstrative of Co- lumbus' having sustained a "competitive disadvantage " Apparently from the Union 's point of view, gross sales, and not labor costs and profit mar- gins, determine one's competitive posture in the marketplace . Even were I to agree that competitive disadvantage was essential , the Union's narrow definition of that terminology is totally unacceptable Hi-State's lagging sales, which were probably attributable to an effective boycott sponsored by the Respondent , does not diminish the fact that its non- union status produced an actual and potential economic advantage over Columbus Hi-State's profitability and opportunities for capital buildup, even if not immediate, created a serious potential for harm to the Charg- ing Party 6 According to the employees , either the Company's attorney or the owner's son, or both, commented that reopener language was needed in the event that Hi-State cut its price to $5 a case and it could not com- pete The absurdity of the Respondent 's interpretation of this evidence becomes evident upon logical extension Thus, if sufficient to undercut the reopener language, the remarks attributed to Columbus ' officials would preclude enforcement of the reopener unless Hi-State lowered beer prices practically to giveaway levels . While one must appreciate that issues of interpretation arising under a labor agreement may be compli- cated by parole issues to a greater extent than ordinary commercial con- tracts, collective bargaining is also designed to produce stability and ad- herence to the bargain struck by the parties No authority is cited which permits the unraveling of unmistakable contract language simply because the party seeking agreement, in orally explaining its objectives, did not articulate all advantages within reach of its proposal For example, an employer who, seeking to negotiate a broad no-strike clause , argues that this is necessary in order to assure continued production , will not lose the right to enforce that provision because an ensuing strike is ineffective and has no impact whatever upon operating capacity It would be a sorry day for collective bargaining if, as Respondent here would have it , clear, di- rectly to the point, contractual language were limited in scope solely by a party's failure to express across the bargaining table that which is implicit in its proposal and which should have been understood by all TEAMSTERS LOCAL 284 (COLUMBUS DISTRIBUTING CO.) 23 the testimony fails to suggest that said statement was in the form of a representation or contingency which would limit or modify the specific , plainly understand- able language which was ratified and agreed to by the Respondent. Beyond that, there is virtually no evidence that "com- petitive disadvantage" was a relevant condition. If it were, there certainly was no mutuality with respect to the Union's strained interpretation of those terms . Its as- sumption that economic harm is not to be measured by a competitive imbalance in costs and profits, but solely in terms of gross sales, is so irrational as to be totally alien to any possible meeting of the minds . Instead, the focus of the reopener discussions, the negotiating history, the terms actually adopted by the parties, and common sense all combine to refute an intention that reopening occur on conditions more restrictive than specified in the agreement. Based on the foregoing, it is concluded that the Union's failure to honor the reopener request violated the May 29 agreement. However, this does not end the inquiry. Breach of contract and midterm modification are sufficiently synonymous to establish a violation of Sec- tion 8(d) in virtually all such cases . Yet, the Board does not hold itself out as a forum for enforcing collective- bargaining agreements in competition either with private arbitration or the jurisdictional allocation in Section 301 of the Act. See, e.g., United Telephone Co. of the West, 112 NLRB 779, 781 (1955). To that end, it has cautioned that "every breach of contract is not per se an unfair labor practice . . . ." Papercraft Corp., 212 NLRB 240, 241 fn.3 (1974). On the other hand, "while the Board does not have general jurisdiction to entertain questions concerning contract interpretation or to determine the extent of the parties' contractual rights, it is the Board's obligation to protect the process by which employers and unions may reach agreement." Sea Bay Manor Home, 253 NLRB 739, 740-741 ( 1980). Thus, the infringement of a duly negotiated right or entitlement may constitute a sufficiently flagrant affront to basic principles of collec- tive bargaining to impel assertion of Board jurisdiction. C & S Industries, 158 NLRB 454, 458 (1966); cf. Trans- port Service Co., 282 NLRB 111 (1986). This consideration also comes into play in evaluating the Respondent's position on deferral . In this respect, the Board's policy as defined in Collyer Insulated Wire, 192 NLRB 837 (1971 ), and as reaffirmed in United Technol- ogies Corp., 268 NLRB 557 (1983), encourages private dispute settlement through the exercise of jurisdictional restraint . In doing so, however, the Board retains author- ity to maintain the institutional objectives of collective bargaining. Accordingly, it will not relegate a dispute to arbitration where the respondent has engaged in conduct tantamount to "a rejection of the principles of collective bargaining." United Technologies Corp., supra at 560; Rappazzo Electric Co., 281 NLRB 471 (1986). This same result follows where there is no genuine issue of contract interpretation. Thus, in O. Voorhees Painting Co., 275 NLRB 779, 786 ( 1984), the complaint challenged an employer's failure to make wage payments and fringe benefit contributions as required by an out- standing collective-bargaining agreement. Deferral was denied both on grounds that there was no genuine issue of interpretation,9 and that the breach represented "an attempt . . . to undermine the Union and repudiate the contract." As in O. Voorhees, both grounds preclude deferral on the facts in this case . The Respondent reneged , without even a colorable justification , from the very undertaking which furnished the quid pro quo for its expedited 1987 settlement. In doing so, it nullified the means which ear- lier had allowed the parties to hedge against a threat to the economics behind the Employer's concessions. By virtue of this accommodation, the Employer retained a measure of control over the economic feasibility of the renewal agreement, while the Union avoided a protract- ed delay in achieving a new contract . In other words, despite unlikelihood of any immediate resolution at Hi- State, the Respondent knew or should have known that the contract secured with Columbus at that time had a provisional caste, which depended-as clearly stated in the May 27 side agreement-upon the the outcome of the Hi-State negotiations. The Union's residence to the request for reopener negotiations entailed a blatant repu- diation of the bargain struck. To condone such conduct would foster inflexibility at the bargaining table by making it most unwise for an employer to participate in innovative strategies which avoid breakdowns, but which are dependent, for there utility, upon the good faith of the other contracting party. In at least one case, the Board has considered a party's repudiation of strategy adopted in bargaining to avoid deadlock. Thus, in Sea Bay Manor Home, supra, the Board found an 8(a)(5) violation where an employer ren- eged on an "interest arbitration" agreement whereby all differences over a new contract proposal would be sub- mitted to binding arbitration. The breach was deemed an unair labor practice even though the arrangement em- bodied a principle which, itself was not a mandatory sub- ject of collective bargaining, and as such, could not be imposed upon a nonconsenting party . In this light, it is difficult to imagine that the employer's repudiation of the accord in Sea Bay Manor was any more damaging to the efficacy of collective bargaining than that occasioned by the Union's breach of the reopener in the instant case. In sum, the Respondent's position under the May 27 side agreement raises no colorable issue of interpretation and, more importantly, its failure to honor the unmistak- able contract terms constituted an act of defiance, so un- justified, as to impel intervention by the Board if public confidence in the process of collective bargaining is to be maintained . Accordingly, it is concluded that the Re- spondent's refusal, on request, to participate in reopener negotiations in connection with wages , load limits, and methods of distribution violated Section 8(b)(3) of the Act. 9 See also Chairman Miller's separate position in Oak Cliff-Golman Baking Co , 207 NLRB 1063 (1973) 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Charging Party is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(b)(3) of the Act by refusing, on request, to bargain in good faith over wages, load limits, and methods of distribution pursuant to the terms of a duly negotiated reopener agreement. 4. The unfair labor practice found above is an unfair labor practice having an effect upon commerce within the meaning of Section 2(6) and (7) of the Act. attached notice marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent 's author- ized representative, shall be posted by the Respondent immediately -upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices within the meaning of the Act, it shall be recommended that it be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edio ORDER The Respondent, Teamsters Local 284, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Co- lumbus, Ohio, its officers, agents, and representatives, shall 1. Cease and desist from refusing, on request, to bar- gain in good faith with respect to any agreement author- izing midterm negotiations with respect to any term or condition of employment. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, have and abide by the side agreement of May 27, 1987. (b) Post at its meeting halls and all places where no- tices to employees and members are posted, copies of the is If no exceptions are filed as provided by Sec 10246 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. ' i 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." APPENDIX NOTICE To MEMBERS 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 have violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain in good faith with re- spect to any agreement authorizing renegotiation of any term or condition of employment set forth in an existing collective-bargaining agreement with Columbus Distrib- uting Company. WE WILL, on request, honor and abide by our side agreement dated May 29, 1987, with Columbus Distribut- ing Company, and reopen the agreement for bargaining with respect to wages, load limits, and method of distri- bution. TEAMSTERS LOCAL UNION 284, A/W THE INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA , AFL-CIO