Auto Fast Freight, Inc

AUTO FAST FREIGHT 561 Auto Fast Freight, Inc and Package and Utility Drivers Local No. 396, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, General Truck Drivers, Warehousemen and Helpers Union Local 467, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America; Teamsters, Chauffeurs, Warehousemen and Helpers Local 542, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Case 21-CA-21218 28 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 31 May 1983 Administrative Law Judge Rus- sell L Stevens issued the attached decision The Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in response 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, 1 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, Auto Fast Freight, Inc , Montebello, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order '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 Or 1951) We have carefully examined the record and find no basis for reversing the findings The Respondent asserts that the filing of several decertification pet' lions permitted it to institute unilateral changes without bargaining with the Union In rejecting this argument, the judge relied on Dresser Indus- tries, 264 NLRB 1088 (1982) Dresser had not issued at the time of the unilateral changes, and It was not made retroactive Thus the rule an flounced in Telautograph Corp, 199 NLRB 892 (1972), applies However, even under Telautograph, where as with these unilateral changes, a decer- tification petition is filed in context of unfair labor practices designed to undermine the union as bargaining representative, the employer may not use the filing as a defense to a refusal to bargain charge It is on this basis that we adopt the judge's finding that the filing of the decertification pe talons did not authorize the Respondent s unilateral changes As the rule announced in Telautograph applies in this case Chairman Dotson finds it unnecessary to pass on whether the rule set forth in Dresser is the correct statement of the law DECISION STATEMENT OF THE CASE RUSSELL L STEVENS, Administrative Law Judge This case was tried in Los Angeles, California, on February 23, 1983 ' The complaint is based on a charge filed April 27 by Package and Utility Drivers Local No 396, Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, General Truck Driv- ers, Warehousemen and Helpers Union Local 467, Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Teamsters, Chauf- feurs, Warehousemen and Helpers Local 542, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Unions when stated jointly, or Local 396, Local 467, and Local 542 when stated separately) The complaint alleges that Auto Fast Freight, Incorporated (Respondent) violated Section 8(a)(5), (3), and (1) of the National Labor Relations Act (Act) All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs Briefs, which have been carefully considered, were filed by the General Counsel and Respondent On the entire record, and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I JURISDICTION Respondent is a California corporation engaged in business in southern California as a less-than-truckload common and contract freight carrier, with its principal office and place of business in Montebello, California Respondent annually, in the normal course and conduct of its business operations, provides freight services valued in excess of $50,000 for customers located within the State of California, each of which annually sells and ships goods and materials valued in excess of $50,000 di- rectly to customers located outside the State of Califor- nia I find that Respondent is, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED Package and Utility Drivers Local No 396, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen & Helpers of America, General Truck Drivers, Warehousemen and Helpers Union Local 467, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America, Teamsters, Chauffeurs, Warehousemen and Helpers Local 542, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America are, and each of them is, labor organizations within the meaning of Section 2(5) of the Act ' All dates hereinafter are within 1982, unless otherwise stated 272 NLRB No 88 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III THE ALLEGED UNFAIR LABOR PRACTICE Background 2 Respondent is a freight carrier, with offices and freight facilities in Montebello (the maine office), San Bernar- dino, and San Diego, California Respondent's drivers, driver-helpers, dockworkers, and mechanics at the three facilities are represented by Locals 396, 467, and 542 Respondent and the Unions have a bargaining relation- ship dating from at least 1962 The most recent bargain- ing agreement, which expired March 31, 1982, 3 includes, inter aim, article 53 covering health and welfare provi- sions and article 54 covering pension provisions 4 At all times relevant herein, Respondent and the Unions ad- hered to all provisions of their current collective-bar- gaining agreements Commencing approximately in 1980 Respondent began to incur substantial operating losses, and in January 1982 Respondent's financial advisor advised it that immediate action must be taken if Respondent was to survive Some employees were laid off in order to reduce costs The Unions recognized, and were concerned with, Respond- ent's financial problems and by letter dated March 2, 1982, 5 offered to meet with Respondent "for the purpose of exploring a resolution that would return the Teamster members back on the job" On March 8, 1982, Respond- ent replied to the letter of March 2, asked that all com- munications be addressed to Respondent's attorney, W- ham Brunick, and stated that Gene Shephard of the Western Conference of Teamsters had advised Respond- ent "to deal exclusively with the Teamsters National Freight Industry Negotiating Committee" Prior to the aforesaid letter of March 2 and 8, on a date not in the record but apparently in November 1981, the Western Conference of Teamsters requested negotia- tions concerning a possible agreement to succeed the one expiring March 31, 1982 On November 19, 1981, Brun- ick replied to the Western Conference, and proposed to meet during the first week of December The Western Conference did not reply, and Brunick sent to it a fol- lowup letter on December 15 Several other communica- tions thereafter were held between Brumck and the Western Conference concerning possible dates and places to meet and negotiate, culminating in a letter Brunick wrote to the Western Conference on April 1, 1982, pro- posing a session for April 8, 9, or 19 On April 5, without prior notification to, or bargaining with, the Western Conference or any of the Unions, Re- spondent instituted a wage reduction for all its unit em- ployees in the sum of approximately $2 per hour, and discontinued making payments into the trust funds re- quired by the agreement that expired March 31 2 This background summary is based on stipulations of counsel and on credited testimony and evidenCe not in dispute, except as noted below 3 This was a "short form" agreement, adopting the National Master Freight Agreement and Western Master Area Freigt Agreement, with all provisions and supplemental agreements thereto G C Exh 2 4 G C Exh 4 5 This letter was signed by the business representative of Local 467, Walter Wright, but he stated that he also was speaking for Locals 396 and 542 .. Sometime after March 31, on a date not established in the record, Respondent unilaterally discontinued the em- ployee health insurance plan provided for in the agree- ment that expired March 31, and substituted for that plan a different one of Respondent's own choosing That sub- stitution was made without notification to, or bargaining with, the Unions or any of them John Sloan was a driver for Respondent at the San Diego terminal from February 2, 1972, until March 31, 1982 He was a member of the Union and his pay was $12 89 per hour Sloan's termination notice states that he voluntarily quit his job by verbal resignation given to the terminal manager (John Traina) 7 on March 31, 1982 Sloan denies that he quit his job, and testified that Trama told him on March 26 that Respondent would not sign a new contract with the Unions, and that, if Sloan wanted to continue working with Respondent after that date, he would have to drop out of the Union, accept Respond- ent's own health and welfare program, and accept a re- duction in pay of approximately $2 per hour Sloan testi- fied that he talked with Trama again on March 31, during the day while at work and later at approximately 8 p m after working that day, and told Trama he could not accept Respondent's conditions because he had been a union member 14 years Traina told Sloan not to come to work the next day unless he had an employee with- drawal slip from the Union Trama denied talking with Sloan on March 26 about Sloan's employment, denied ever telling Sloan that Respondent would not sign a new contract with the Unions, denied ever encouraging Sloan to drop his union membership, and denied ever telling Sloan that he could continue working for Respondent only if he dropped his union membership Trama testified that Sloan voluntarily quit his job on March 31 after stat- ing that he would not work because a contract between Respondent and the Unions had not been reached Manuel Garza was a driver for Respondent at its San Diego terminal, from 1971 until March 31, 1982 He was a union member and his pay was $12 89 per hour Garza's termination notice states that he voluntarily quit his Job by verbal resignation given to the terminal man- ager on March 31 Garza denies that he quit his job, and testified that, approximately in mid-March, when he ex- pressed to Trama his concern about rumors that Re- spondent may "go non-union," Traina suggested that Garza could get a withdrawal card from the Union, stay with Respondent until business got better, and then later go to work someplace else if he wanted to Garza further testified that, before he started his driving run on March 31, Traina recalled to him their conversation of mid- March, said that Respondent was "going non-union," and said he was sorry, but Garza "will have to get a withdrawal card from the Teamsters if you are going to work here" Further, Garza testified, Trama told him that, as a nonunion employee, Garza would receive wages of $11 per hour, would have a different holiday and vacation schedule, would have a different but better 6 G C Exh 5 This notice was received by Sloan on June 24 7 Traina's supervisory status is admitted by Respondent 8 G C Exh 6 This notice was received by Garza after March 31, on a date not established at trial AUTO FAST FREIGHT 563 health plan, and would have a company pension plan Garza testified that he declined the offer, that Traina asked him to work the rest of the day, that he did work the rest of the day, and that he did not return to work for Respondent thereafter Garza testified that Traina asked him the night of March 31, during a telephone call, for a letter of resignation because he had quit, but that he refused, and denied that he had quit his job Traina testified that, on March 31, he talked with Garza but that Garza merely was asking about the contract ne- gotiations, and that Garza stated to him "if there was no contract signed, that he didn't want to work for the company" Trama testified that Garza told him he would finish work that day, but would not be in the following day Trama denied ever telling Garza that Respondent was "going non-union," or that he ever talked with Garza about getting a withdrawal card from the Union, or resigning from the Union Robert Harris, business agent for Local 542, credibly testified from the Local's records, without challenge or contradiction, that Respondent's employees Crisalli, Al- dridge, and Brabbs, who remained employed by Re- spondent, withdrew from the Union on March 31, and that employee King withdrew on April 5 Respondent's remaining unit employee at the San Diego terminal, Bar- rett, transferred to the sales department and has not been a union member since then Discussion The facts that, in April 1982, Respondent unilaterally and without bargaining with the Union discontinued'pay- ments to union health and welfare funds, decreased wage rates of employees, and instituted a new medical insur- ance plan for employees, as alleged in the complaint, are not in dispute Respondent argues that it attempted without success to arrange for a new contract with the Unions, and that the old contract had expired prior to Respondent taking the unilateral actions stated above, but those facts are irrele- vant Respondent met with union representatives on April 9, but the actions noted above already had been taken by that date Further, the testimony of' Sloan, Garza, and Traina is relevant to this issue Trama was not a convincing witness, he appeared uncertain in his testimony, and somewhat evasive Sloan and Garza were convincing, and their testimony is credited The latter two witnesses testified that Traina told them Respondent planned to "go non-union," and the unilateral actions taken by Respondent are consistent with such a plan It appears that Respondent's arguments in justification of its unilateral actions are afterthoughts, rather than before- the-facts reasons The Board and the courts consistently have held that an employer violates its duty to bargain in good faith when it unilaterally institutes changes in existing terms and conditions of employment, following expiration of a collective-bargaining agreement 9 Respondent argues 9 Peerless Roofing Co , 247 NLRB 500 (1980), 111 Grade Materials Go, 239 NLRB 947, International Harvester Go, 247 NLRB 791, 798 (1980) that its financial problems made it necessary to take the actions it did, but those problems also are irrelevant '''' The actions of Respondent, in the substantive sense, are not in question It seems apparent that Respondent had to do something to stop its downhill slide The actions it took may or may not have been helpful However, Re- spondent owed a continuing duty, even after March 31, to work with the representative of the employees in pro- posing and making changes that affected the employment of those employees, whatever those changes may have been Respondent also argues that it attempted in good faith, without success, to get the Union to the bargaining table, but there is nothing in the record to show that the Unions intentionally were ducking Respondent, or breaching their duty to meet and bargain with Respond- ent It does appear that the Unions were not well coordi- nated, and possibly were uncertain of their administrative responsibilities, but those facts do not justify Respond- ent's unilateral actions As noted above, a meeting was held on April 9, just a few days after most of Respond- ent's unilateral actions taken on April 5 Further, the statements made by Trama in March show Respondent's real intent—Respondent already had planned to "go non- union," at least by mid-March Further, relative to Respondent's contention that action by it was necessary to prevent financial collapse, there was no reasonable basis for taking such action so soon after expiration of the contract on March 31 Re- spondent was aware of its serious financial weakness since at least January, and it had ample opportunity prior to March 31 to resolve any uncertainty that may have existed concerning the appropriate organization for bar- gaining with it Whatever that uncertainty may have been, it did not justify Respondent's unilateral actions af- fecting the working terms and conditions of its unit em- ployees Respondent violated Section 8(a)(5) and (1) of the Act, as alleged in the complaint, by unilaterally discontinuing payments to the Union's health and welfare funds, by de- creasing wage rates of employees, and by instituting a medical insurance plan for its employees, without prior bargaining with the Union Sloan and Garza were constructively discharged by Respondent in violation of Section 8(a)(3) and (1) of the Act, as alleged by the General Counsel As noted above, the testimony of Sloan and Garza is credited Traina was not a convincing witness Both of the employees were given a choice—accept changed working conditions, in- cluding decreased wages, and give up their union mem- bership, or quit their jobs Such an option is unlawful " Respondent argues that three decertification petitions were filed by three different Teamsters locals at or about the time the Master Freight Agreement expired, which raised "serious questions by Respondent concerning Teamsters representation of its employees" No other evidence was offered by Respondent to show a reasona- ble doubt, based on objective considerations, that the '° Phoenix Air Conditioning, 231 NLRB 341 (1977) ' Cartwright Hardware Go, 229 NLRB 781 (1977) 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unions continued to represent the employees in the ap- propriate unit The mere filing of a decertification peti- tion does not, in and of itself, require or permit an em- ployer to withdraw from bargaining 12 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with their operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce V THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(3), (5), and (1) of the Act, it will be recommended that Re- spondent cease and desist therefrom, and take certain af- firmative action designed to effectuate the policies of the Act It will be recommended that the terms of the collec- tive-bargaining agreement and trust fund provisions thereof, which expired on March 31, 1982, be reinstated forthwith, and continued in effect until after the terms of a new agreement are agreed on or until impasse is reached Having found that Respondent unilaterally and with- out bargaining with the Union, on or about April 5, 1982, decreased the wages of employees in the unit de- scribed infra, I shall recommend that Respondent make whole the employees so involved in the manner pre- scribed in F W Woolworth Co, 90 NLRB 289 (1950), plus interest as set forth in Isis Plumbing Co, 138 NLRB 716 (1962), and Florida Steel Corp, 231 NLRB 651 (1977) Having found that Respondent unlawfully discharged employees John Sloan and Manuel Garza, it will be rec- ommended that Respondent be ordered to offer Sloan and Garza immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substan- tially equivalent positions, without prejudice to their se- niority or other rights and privileges, and make them whole for any loss of earnings they may have suffered from the time of their discharge to the date of their offer of reinstatement, with interest as aforesaid CONCLUSIONS OF LAW 1 Auto Fast Freight, Inc is, and at all times material herein has been an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Package and Utility Drivers Local No 396, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen & Helpers of America, General Truck Drivers, Warehousemen and Helpers Union Local 467, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- " Dresser Industries, 264 NLRB 1088 (1982), RCA del Caribe Inc , 262 NLRB 963 (1982) semen and Helpers of America, Teamsters, Chauffeurs, Warehousemen and Helpers Local 542, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America are, and each of them has been, at all times material herein, labor organizations within the meaning of Section 2(5) of the Act 3 The following unit is appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act All drivers and driver-helpers, dockworkers and mechanics employed by Respondent at its Monte- bello, San Bernardino, and San Diego, California fa- cilities 4 At all times material herein, the Union has been the exclusive bargaining representative of all employees in the appropriate unit described above 5 Respondent violated Section 8(a)(5) and (1) of the Act by, unilaterally and without bargaining with the Union, discontinuing payments to union health and wel- fare funds required by the contract of the parties and by instituting a new and different medical insurance plan for employees 6 Respondent violated Section 8(a)(3), (5), and (1) of the Act by decreasing wage rates of employees 7 Respondent violated Section 8(a)(3) and (1) of the Act by constructively discharging its employees John Sloan and Manuel Garza 8 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed13 ORDER The Respondent, Auto Fast Freight, Inc, Montebello, California, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Unilaterally and without bargaining with the Union discontinuing payments to union health and welfare funds and instituting a new and different medical insur- ance plan for employees, in violation of Section 8(a)(5) and (1) of the Act (b) Unilaterally and without bargaining with the Union decreasing wage rates of employees, in violation of Sec- tion 8(a)(3), (5), and (1) of the Act (c) Constructively discharging employees in violation of Section 8(a)(3) and (1) of the Act (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act 2 Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act 13 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 AUTO FAST FREIGHT 565 (a) On request, bargain collectively in good faith with the Unions as the exclusive representative of all employ- ees in the appropriate unit described above, with regard to rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment (b) Restore and put into effect forthwith all terms and conditions of employment provided by the contract ef- fective until March 31, 1982, including those provisions unilaterally changed by Respondent, until such time as the parties have bargained in good faith for a reasonable time and have reached a new agreement or, in the alter- native, have reached an impasse (c) Make whole as described in the remedy section hereof all employees whose wages were reduced (d) Offer John Sloan and Manuel Garza immediate and full reinstatement to their former job or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of their discriminatory dis- charge, with interest as set forth in the remedy section of this decision (e) Expunge from its records and files any and all ref- erences to the terminations of John Sloan and Manuel Garza (f) Post at its place of business in Montebello, Califor- nia, copies of the attached notice marked "Appendix "14 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Re- spondent's authorized representative, 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 Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material (g)' 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 amount of backpay due under the terms of this Order (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply i4 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 at 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 WE WILL NOT violate Section 8(a)(5) and (1) of the Act by, unilaterally and without bargaining with the Union, discontinuing payments to union health and wel- fare funds and instituting a new and different medical in- surance plan for employees WE WILL NOT violate Section 8(a)(3), (5), and (1) of the Act by, unilaterally and without bargaining with the Union, decreasing wage rates of employees WE WILL NOT violate Section 8(a)(3) and (1) of the Act by constructively discharging emfiloyees WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act WE WILL on request, bargain collectively in good faith with the Unions as the exclusive representative of all em- ployees in the appropriate unit described above, with regard to rates of pay, hours of employment, and other terms and conditions of employment and, if an under- standing is reached, embody such understanding in a signed agreement WE WILL restore and put into effect forthwith all terms and conditions of employment provided by the contract effective until March 31, 1982, including those provisions which were unilaterally changed by us, until such time as the parties have reached a new agreement or, in the alternative, have reached an impasse WE WILL make whole all employees whose wages were reduced as a result of our unilateral and unlawful actions WE WILL offer John Sloan and Manuel Garza immedi- ate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of their discriminatory discharge, with interest as set forth in the remedy section of this decision WE WILL expunge from our records and files any and all references to the terminations of John Sloan and Manuel Garza AUTO FAST FREIGHT; INCORPORATED