Gresham Transfer

484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gresham Transfer and Line Drivers, Helpers, Pickup and Delivery Local #741, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Case 19—CA -14971 28 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 25 July 1983 Administrative Law Judge Tim- othy D Nelson issued the attached decision The Respondent filed exceptions, a supporting brief, and a motion to strike the General Counsel's an- swering brief The General Counsel filed an an- swering brief 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, and conclusions and to adopt the recommended Order 1 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Gresham Transfer, Kent, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Order We deny the Respondent s motion to stnke the General Counsel s an swermg brief as it is without merit In determining that the Respondent could not depend on the Union s pnvileged" refusal to discuss mid term modifications to support the con tention that its unilateral wage cut was justified, the judge relied on Oak Cliff-Golman Baking Co, 207 NLRB 1063 (1973), enfd 505 F 2d 1302 (5th Cir 1974) cert denied 423 U S 826 (1975) Although he would affirm the Judge s findings and conclusions Chairman Dotson does not agree with part of the rationale in Oak Cliff-Golman In the Chairman's opinion, the Board must have flexibility in this area to fashion appropn ate remedies depending on the exigencies of the situation DECISION STATEMENT OF THE CASE TIMOTHY D NELSON, Administrative Law Judge Line Drivers, Helpers, Pickup and Delivery Local #741, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica (Union) filed unfair labor practice charges on Sep- tember 15, 1982, against Gresham Transfer (Respondent), which were investigated under the supervision of the Re- gional Director for Region 19 of the National Labor Re- lations Board (Board) The Regional Director issued a complaint and notice of hearing against Respondent on October 29 Respondent duly answered, and I heard the matter in trial at Seattle, Washington, on April 7, 1983 The General Counsel and Respondent each filed timely posttrial briefs, which I have duly considered The Issue Was Respondent's admitted unilateral imposition of a 15-percent wage reduction in the union-represented bar- gaining unit Justified by exceptional circumstances? FINDINGS OF FACT This is an undisputed record, and summary findings are warranted Respondent is an Oregon corporation which conducts a trucking business It operates a heavy hauling division which has terminals in Portland, Oregon, and Kent, Washington A Portland-based Teamsters local represents Respondent's Portland drivers and contracts separately with Respondent We are con- cerned with Respondent's practices at the Kent terminal, whose drivers are represented by the Union 2 A labor agreement was in effect between the Union and Respondent for the Kent unit, which was due to expire on July 31, 1982 Beginning in August 1981, and continuing thereafter, Respondent regularly sought the Union's agreement to renegotiate the contract wage rates due to claimed net operating losses Respondent pro- posed a variety of specific downward changes in wage rates and other contract terms having economic impact,3 but also indicated that other alternatives to its specific proposals might be acceptable 4 The Union repeatedly either Ignored those requests or affirmatively expressed its unwillingness to engage in any midcontract rollbacks in wage rates or other conditions On February 25, the Union served on Respondent a contract reopener notice, expressing a "desire to revise or change terms or conditions for the next contact period" from those contained in the then-current labor agreement Respondent replied in similar vein a week later On April 6, 5 Respondent wrote to the Union request- ing "a meeting to open the contract at the very earliest date" due to the alleged financial precariousness of the current operation The Union did not specifically reply, so far as this record shows Absent any other indication to the contrary, however, I find from the terms used in that letter that Respondent was not thereby seeking a meeting to settle terms for a new contract to replace the existing contract when it expired Rather, I find that this letter was another attempt by Respondent to get the Union to bargain over proposed rollbacks during the term of the then-current contract 6 Respondent, admittedly an employer in commerce, also admittedly bought and had shipped to Washington more than 850,000 worth of goods or services directly from outside Washington in a representative annual penod 2 The bargaining unit described at Conclusion of Law 3, infra, and Its appropriateness is admitted by Respondent 'See, e g , R Exhs 3, 5, and 7 4 See R Exh 7, penultimate paragraph All dates hereafter are in 1982 unless otherwise specified o The testimony of Respondent s agent Ulmer, at Tr 55 10-16, tends to confirm this Impression 272 NLRB No 77 GRESHAM TRANSFER 485 On July 13, the Union mailed to Respondent a com- prehensive written proposal for changes in the labor agreement to be effective August 1 Among other pro- posed changes, the Union sought an hourly wage in- crease of $1 50, effective August 1, with additional 50- cent hourly increases effective on August 1, 1983, and 1984 On July 15, Respondent acknowledged receipt of the Union's opening proposal for a new contract and for- warded a copy of Respondent's own proposal Therein, Respondent proposed, inter atm, a reduction in some hourly wage rates 7 It appears that Respondent had conducted some bar- gaining sessions in Portland with the Portland local in July, but that the Union's representatives did not attend This was the result of an agreement apparently reached between Respondent's labor relations representative York and the Union's representatives to await the results of an audit of Respondent's operations then being con- ducted by the Portland local 8 The record reflects that another meeting, attended by Swift, occurred on August 26 9 In the absence of evi- dence of any other intervening meetings, I find that there were none In the absence of any evidence of such re- quests, I find further that Respondent did not seek any other meetings with the Union between July 21 and August 26 On August 20, however, York had sent an "Interim Proposal" to the Union In it York proposed that the ex- pired collective-bargaining agreement be extended for the period August 16-October 16, 1982, with certain "ex- ceptions," the most notable of which for our purposes was that "Effective August 16, 1982 each wage classifi- cation shall be reduced by fifteen percent factor" As expressed by York, "The purpose of this proposal is to allow the parties additional time in which to conclude collective bargaining toward the renewal agreement which shall become effective August 1, 1982" In an accompanying letter, York also alluded to some prior understanding that the Union's members would be "voting" in some fashion on the interim proposal before August 26 York also confirmed in the cover letter that he planned to meet with Swift on August 26 "to bargain over the present agreement" 7 It is not at all clear from exhibits and testimony to whom these hourly rates applied or when they applied I make this finding and similar findings below about wage proposals in reliance on the uncontradicted (although summary) testimony of Respondent s representative Ulmer and on stipulations or admissions made by the parties Attempts to understand on this spare record the significance and/or applicability of various hourly and "mileage' and "subsistence" and COLA" rates which appear in the labor agreements, and contract proposals of record herein have been abandoned as fruitless What is clear is that none of Respondent s proposals for reduced wages under a new comprehensive labor agree ment were ever across the-board" in character Only its 'Interim Pro posal' discussed below had such character 8 In a letter written by York to the Union's agent Swift on July 21 (R Exh 16), York alluded to an earlier conversation in which Swift and York had agreed that Swift would attend the next scheduled bargaining meeting after the audit 9 August 25 is the date adopted by Respondent's witness in testimony, although documentary matenal introduced by Respondent, including notes of York written thereon, suggests instead that the meeting was on August 26 See R Exhs 17 and 18 I rely on the latter The record does not show whether a vote was taken on the interim proposal, nor how, if at all, the Union's rejection of it was communicated 1 ° In any case, an en- tirely new comprehensive written contract proposal was presented by Respondent to the Union during the face- to-face bargaining session on August 26 Unlike the inter- im proposal, the "August 26" proposal contained a more detailed proposed schedule of rates which reflected re- ductions which varied as a percentage, item by item 11 On August 31, however, Respondent admittedly im- plemented a 15-percent-across-the-board wage reduction in the Kent unit, having retroactive effect to August 16 Respondent acknowledges that this was done unilateral- 157 12 and I therefore find that there was no prior notice to the Union of an intention to implement what had theretofore been a mere "proposal" which the Union had not acceeded to It is this admitted unilateral wage re- duction, effective in the period August 16-December 113 which is challenged by the complaint Additional findings are reserved to the analysis in the next section Analysis and Conclusions As noted above, and as Respondent has conceded, the question here is whether Respondent's admitted unilater- al wage reduction was justified by exceptional circum- stances, for, as a general proposition, an employer may not unilaterally change wages or other established condi- tions of employment in a union-represented unit More specifically, an employer must normally notify such union of its intention to make such a change and must do so sufficiently in advance of any such proposed change to afford the union an opportunity to bargain about the change if it wants to do so NLRB v Benne Katz, 369 U S 736, 743 (1962) And, in circumstances such as this one, where the parties are involved in bargaining for a new labor agreement to succeed an expired one, the em- ployer's obligation to refrain from such unilateral changes extends beyond the mere duty to give adequate advance notice and an opportunity to bargain, it encom- passes the duty to refrain from implementation at all, 1 ° The General Counsel makes a number of representations on brief about the facts of this case which do not seem to have record support These include the assertions (p 2) that Swift an agent of the Union took the Employer s Interim Proposal to a unit vote on August 26, 1982, where it was rejected He communicated the vote to York on August 28, 1982 " Here, as elsewhere, the General Counsel has not trou bled to identify the portion of the record on which he relies My own search of the record does not specifically confirm the General Counsel's quoted assertion of fact I find that the Union rejected the interim pro posal but I do so based only on the presumption that Respondent would have proved It as a defense to this complaint if, indeed, the Union had accepted that Interim proposal " See, e g, the 'fact sheet which Respondent prepared to character ize the percentage reductions in the various identified wage categories and which it presented to the Union along with the "August 26 propos al " Although the term was not used in the stipulation of the parties in which Respondent acknowledges that it implemented the 15-percent re duction, Respondent has elsewhere conceded the 'unilateral" quality of its actions See, e g , R Br, 2-3 et seq " On that latter date, as the General Counsel acknowledged at Tr 13, the parties concluded a new overall labor agreement which 'stopped the 15 percent reduction 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unless and until an overall Impasse has been reached on all bargaining subjects Winn-Dixie Stores, 243 NLRB 972, 974-975 (1979) Here, Respondent's admitted implementation unilater- ally of an across-the-board wage cut of 15 percent suf- fered from two vices First, Respondent never notified the Union of its intention to make such a change Second, even if it had, there is no basis for concluding that an impasse had been reached by the parties Indeed, there is no contention by Respondent of any such im- passe Respondent's agent Ulmer conceded that when the "August 26" proposal was presented to the Union," the parties then spent considerable time in discussions about other areas of the proposed contract Nothing in Ulmer's testimony about that bargaining session would warrant the conclusion that the only outstanding point of dis- agreement was with respect to the interim proposal 15 Accordingly, where it was stipulated that Respondent nevertheless implemented a 15-percent reduction on August 31, retroactive to August 16, and where, less than a week before August 31, the parties were still ap- parently engaged in fruitful bargaining over an entire package of bargaining proposals, I must conclude that there had been no prior overall impasse I note also as further evidence pointing in the same direction that it was not until November 23, 1982, that Respondent pre- pared what it termed its "full and final offer," thus sug- gesting that the parties' positions were still relatively fluid before that point An examination of Respondent's arguments on brief leads to the conclusion that Respondent has taken some- thing of a "kitchen sink" approach to its defense I do not dwell on the plainly spurious or inconclusive sugges- tion which Respondent has variously made, however, since Respondent ultimately "relies" on the legal doc- trines applied by the Board in AAA Motor Lines, 215 NLRB 793 (1974), and M & M Contractors, 262 NLRB 1472 (1982) 16 Briefly, the cited cases have recognized that an em- ployer may be justified in making unilateral changes "[w]hen a union, in response to an employer's diligent and earnest efforts to engage in bargaining, insists on continually avoiding or delaying bargaining" M & M, 262 NLRB at 1472 citing AAA Motor Lines, supra In M & M, the Board found that an employer was justified in implementing a certain set of changes unilaterally, even though the change was made only 5 days after the em- i4 On this vague record, it is possible to conclude that Respondent viewed the August 26 proposal as supplanting any proposals made before it, including the interim proposal I think it more likely, however, that Respondent intended that the interim proposal be accepted as the basis for ongoing wage payments pending the reaching of a new overall agree ment To accept this interpretation provides grounds for doubt, however, about Respondent's intentions and/or its expectations For, absent overall impasse in bargaining for a new agreement, Respondent could not lawful ly implement any wage reduction or other change in conditions Winn Dixie, supra And, since this was the case, It is difficult to envision any incentive which the Union might have had to acquiesce in the interim proposal " At best, Ulmer s confusing testimony on this point is to the effect that the intenm proposal, as well as the most recent comprehensive con tract proposal, were all discussed "quite thoroughly," and that some "mutual agreement" was reached on some issues ' 6 R Br 11 ployer had presented a written detailed contract proposal to the union, because the union had generally "manifest- ed its aversion to bargaining" over a period of 7 months and, more specifically, the union had refused during a period from April to November to give the employer a bargaining date and then further delayed in the setting up of a meeting thereafter Ibid The Board nevertheless made clear in M & M that its holding was linked to "the particular circumstances present here" and also took pains to stress that "Normally, an employer must allow a union more than the 5-day period, present in this case, between the time the union receives the employer's pro- posed contract changes and the time the employer imple- ments those changes" Ibid Respondent points to the fact that it had been trying since 1981 to get the Union to negotiate about "contract relief' to ease its supposedly difficult financial situa- tion," and likens the Union's unwillingness to discuss midcontract wage reductions to the dilatory and stonewalling conduct of the unions in M & M, supra, and AAA Motor Lines, supra But the comparison is not apt, for the obvious reason that a contracting party is not "requided] to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract" See Section 8(d) of the Act, see also Oak Cliff-Golman Baking Co, 207 NLRB 1063, 1064 (1973), enfd 505 F 2d 1302 (5th Cir 1974), cert denied 423 U S 876 (1975) Accordingly, Respondent cannot rely on the Union's privileged unwillingness to talk about midterm contract changes as evidence, such as that relied on in M & M, supra, and AAA Motor Lines, supra, that the Union was guilty of any persistent unwillingness to meet and bar- gain about terms for a new labor agreement Indeed, once those terms became ripe for discussion by the exchange in early 1982 of "reopener" letters, there is no evidence in the record to support the conclusion that the Union was unwilling to meet at reasonable times and intervals to engage in such discussions I conclude, therefore, that there was neither a good- faith bargaining impasse before Respondent unilaterally reduced unit wages, nor was there any background of bargaining intransigence by the Union which might have privileged Respondent in taking such action Respondent thus violated Section 8(a)(5) and (1) of the Act, substan- tially as alleged CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce 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 " 1 cannot and do not decide on this record whether Respondent was in financial trouble, or, if so, whether it had reached the cnsis stage which York sought to portary in letters dated as early as September 24, 1981 See R Exh 5 a letter to the Union with a handstamped notation, urgent" at the top, and continuing shutdown threats if relief were not immediately granted GRESHAM TRANSFER 487 3 At all times material herein, the Union has been the exclusive collective-bargaining representative of Re- spondent's employees in the appropriate unit described as follows All line drivers of Respondent working out of its Kent, Washington facility but excluding office cleri- cal employees, professional employees, guards, and supervisors, as defined in the Act 4 By unilaterally reducing the wages of unit employ- ees by a factor of 15 percent effective in the period August 16 to December 1, 1982, Respondent has failed and refused to bargain collectively in good faith with the Union as the exclusive collective-bargaining representa- tive of the employees in said unit, and Respondent there- by has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act THE REMEDY Having found that Respondent engaged in violations of the Act, I shall provide in my recommended Order that Respondent cease and desist therefrom, that it make unit employees whole, with interest, for the losses they suffered in the period August 16-December 1, 1982," and that Respondent post an appropriate remedial notice and comply with its provision On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Gresham Transfer, Kent, Washing- ton, its officers, agents, successors, and assigns, shall 1 Cease and desist from refusing to bargain collective- ly in good faith with the Union as the exclusive collec- tive-bargaining representative of employees in the unit elsewhere found to be appropriate hereby making unilat- eral changes in wages, hours of work, or other terms and conditions of employment affecting said employees, or by like or related action in derogation of its bargaining obligations under Section 8(d) of the Act 2 Take the following affirmative action necessary to effectuate the purposes and policies of the Act (a) Consistent with section V of this decision cap- tioned "The Remedy," make unit employees whole, with interest, for all losses they suffered as a consequence of Respondent's unlawful implementation of a 15-percent wage reduction in the unit effective in the period August 16, 1982, to December 1, 1982 (b) Preserve and, on request, make available to the Board or its agents all payroll and other records neces- 19 All amounts necessary to fulfill Respondent s make whole obliga lions under this Order shall be computed in accordance with formulas and policies set forth in F W Woolworth Co, 90 NLRB 289 (1950), Isis Plumbing Co, 138 NLRB 716 (1962), and Florida Steel Corp, 231 NLRB 651 (1977) 19 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 sary or helpful in the determination of amounts required to make employees whole under this Order (c) Post at its Kent, Washington terminal copies of the attached notice marked "Appendix " 2° Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees 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 (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 _ 20 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 Na tional Labor Relations Board" shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board 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 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 to engage in any of these protect- ed concerted activities WE WILL NOT make changes in the wages, hours of work, or other terms and conditions of employment in the unit of drivers represented by Local Drivers, Help- ers, Pickup and Delivery Local #741 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America unless we first notify that Union of our intentions and fulfill our obliga- tions under the Act to bargain in good faith about such changes WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by the Act WE WILL make all drivers in the Kent bargaining unit whole, with interest, for the losses they suffered as a result of our unlawful reduction of wages effective in the period August 16 to December 1, 1982 GRESHAM TRANSFER