Grant Trucking, Inc

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Grant Trucking, Inc and Teamsters National Freight Industry Negotiating Committee, on Behalf of Teamsters Local No 159, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Case 9—CA-19800 28 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 30 March 1984 Administrative Law Judge William A Gershuny issued the attached decision The General Counsel and the Charging Party filed exceptions and supporting briefs to which the Re- spondent 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,' and conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed ' The Charging Party, explicitly, and the General Counsel, implicitly, have excepted to some of the judge's credibility findings The Board's es- tablished policy is not to overrule an administrative law judge's crechbil ity 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 DECISION STATEMENT OF THE CASE WILLIAM A GERSHUNY, Administrative Law Judge A hearing was held in Columbus, Ohio, on February 7, 1984, on a complaint issued October 20, 1983, alleging a violation of Section 8(a)(1) and (5), based on an allegedly unlawful implementation of a bargaining offer prior to the point of impasse The principal issue is whether there had been an im- passe in bargaining On the entire record, including my observation of wit- ness demeanor, I hereby make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I JURISDICTION AND LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that Respondent is an employer subject to the Act and that Local 159 is a labor organization within the meaning of Section 2(5) of the Act II UNFAIR LABOR PRACTICE A Procedure The General Counsel's case consisted of documentary evidence and the testimony of two witnesses Davis, Re- spondent's personnel director and principal negotiator, and Brown, representative of the Ohio Conference of Teamsters and the National Freight Industry Negotiating Committee (National Committee) The Charging Party offered no evidence At the conclusion of the General Counsel's case, Respondent moved to dismiss, pursuant to Federal Rules of Civil Procedure 41(b), and a briefing schedule was agreed on B Background The following facts are not in dispute and are present- ed as historical background There is no allegation or contention that Respondent's withdrawal from the asso- ciation or its termination of the contract was unlawful Prior to 1979, Respondent, as a member of a multiem- ployer bargaining association, was signatory to the Na- tional Master Freight Agreement (National Agreement) and Central States Area Iron and Steel Special Commod- ities Rider (Rider) In 1978, Respondent withdrew from the association and, in 1979, elected to enter into an in- terim agreement, to be effective only until finalization of the national agreement Respondent, although not a sig- natory to that agreement, adhered to its terms On April 1, 1982, Respondent, pursuant to that agreement, termi- nated the agreement and requested individual negotia- tions for a new contract Ultimately, the National Com- mittee designated Brown as its representative in negotia- tions with Respondent C The Facts The credited facts are quite simple 1 Admittedly, at all relevant times, the subcommittee was aware of Respondent's financial difficulties and its need for concessions Negotiations between the subcommittee and Respond- ent began on February 16, 1982, when Respondent was sent a preprinted, one-page interim agreement By its terms, a signatory acknowledges "familiarity" with the terms and conditions of a national agreement and riders ' All findings are made on the basis of the documentary evidence and the testimony as credited Auto Workers Local 122 (Chrysler Corp), 239 NLRB 1108 (1978), Royal Zenith Carp, 263 NLRB 588 (1982) Apart from admissions reluctantly made following persistent examination on cross examination, and by me, Brown was less than a credible witness He was unconvincing and his testimony was self contradictory and in conflict with his Board affidavit in material respects Based on my obser vation of his demeanor on the stand, it was apparent that Brown was un willing or unable to meet the obligations of his oath as a witness Davis, on the other hand, was a candid witness and his testimony convincing Moreover, in view of the conclusion reached that impasse had, in fact, been reached there is no need to consider Respondent's other conten lions that the General Counsel is precluded from proceeding (a) because of an earlier, written determination by the Regional Director that nei ther party was willing to yield its position" and (b) because of inconsist ent allegations in a complaint issued by Region 8 (Case 8-CA-15927) that Respondent, as a member of the association, refused to execute the Na tonal Agreement Despite assurances of counsel at the hearing, that corn plaint has not been dismissed as to Respondent 272 NLRB No 92 GRANT TRUCKING 591 yet to be negotiated 2 and agrees to be bound by these terms and conditions until it executes the national agree- ment and riders It does not contemplate individual nego- tiations by the signatory Davis advised the subcommit- tee that Respondent would sign neither the interim agreement nor a national agreement, rather, it desired to negotiate an individual contract Only one negotiating meeting was held between Re- spondent and the subcommittee On March 16, 1982, Davis and Brown met for 10 minutes (during a recess in other ongoing negotiations participated in by Brown) and Brown was given a 19-page contract proposal by Respondent This proposal was never discussed or con- sidered by the subcommittee Again, Brown proposed that Respondent sign an interim agreement which would have bound Respondent to a national agreement yet to be negotiated and suggested that some relief might be available by a rider once the national agreement was signed by Respondent Of course, this procedure posed an enormous risk to Respondent because, once Respond- ent was bound to the national agreement, there would be no assurances of concession bargaining or concessions Respondent again refused At no time thereafter did the subcommittee propose anything to Respondent other than a national agreement In March 1982, Davis met with Local Union President Hunt, who represented that he had authority to negotiate a local rider with Respondent 3 Hunt, who was present in the hearing room, was not called to testify by the General Counsel or the Charging Party On March 31, they executed an agreement to bargain in good faith and to make any agreement retroactive to April 1, 1982 Thereafter, Hunt and Davis agreed on two alternative proposals for a local rider with concessions which would accompany the national agreement which still had not been negotiated The two alternatives were submitted by Hunt and Davis to the local union, but Hunt refused to submit it to the membership, stating that he could not "mess" with the national health, welfare, and pension provision Between April and October 1982, there were no meet- ings with the subcommittee' and Brown refused to nego- tiate with Davis, insisting that Respondent wait for the national agreement to be finalized, because a rider with concessions would not be approved until the national 2 The record indicates that the national agreement was not finalized until late 1983, more than 18 months after the onset of bargaining in this case 3 Although Respondent was advised, by letter of February 4, 1982, that only the subcommittee was authorized to bargain on behalf of the local unions, Brown admitted that It was not Improper to negotiate with a local in advance of the national agreement as to concession 4 One meeting was scheduled for January 17 1983, but Davis was pre vented from attending by a severe snowstorm agreement was negotiated Brown also advised Davis that the subcommittee could not discuss (not "budge" on) concessions on the levels of contributions to the funds In August 1982, by telegram, the local union threat- ened strike action if Respondent did not sign the national agreement, which still had not been negotiated No strike occurred Finally, by letter of April 25, 1983, Respondent sub- mitted a final contract proposal to the local union, stat- ing it would implement its provisions if no response were received within a week Hunt returned the proposal the next day, disavowing his previously declared authority to bargain over a local agreement and instructing Re- spondent to send the proposal to the subcommittee Re- spondent returned the proposal to Hunt On May 15, the final offer was Implemented and, by letter of May 31 to Hunt, the Union was invited to sign the contract which had been implemented There was no response to this letter From a consideration of all record evidence as cred- ited, NLRB v American Ins Go, 343 U S 395 (1952), there emerges three inescapable conclusions that compa- ny proposals were never discussed or considered by the subcommittee, that the Union, from the outset, insisted that Respondent commit itself to a national agreement yet to be negotiated before local concessions could be considered, and that the Company was precluded from negotiating in advance over local concessions because the subcommittee considered the local union to be with- out authority and because, in any event, local conces- sions could not be considered until there was a national agreement Where, as here, a union refuses to consider any agree- ment other than a national agreement, impasse is reached and employer is free to implement the terms of its last offer Betlem Service Corp, 268 NLRB 354 (1984) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 5 ORDER It is ordered that the motion to dismiss be granted and the complaint dismissed 5 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