AAA Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 793 (N.L.R.B. 1974)

AAA MOTOR LINES, INC 793
AAA Motor Lines, Inc. and International Brotherhood
of Teamsters , Chauffeurs , Warehousemen & Help-
ers of America, Local Union No. 612. Case
10-CA-10278
December 16, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On June 21, 1974, Administrative Law Judge John
P. von Rohr issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent, the General
Counsel, and the Charging Party filed exceptions and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the,
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
Respondent contends that its institution of certain
changes in terms and conditions of employment for its
employees on July 2, 1973, was not a violation of Sec-
tion 8(a)(5) of the Act. In support of this contention,
Respondent points out that in April 1973 Respondent
submitted various contract proposals to Local 612 offi-
cials, requesting at the same time that arrangements be
made to negotiate a renewal contract to the contract
expiring at midnight, June 30, 1973. Respondent also
points out that thereafter, and continuing through the
expiration of the then current contract, Local 612's
officials refused to meet with Respondent at any time
for purposes of negotiating a new contract, and that the
changes instituted on July 2, effective July 1, 1973,
were necessary to protect various conditions of employ-
ment of its employees that would have automatically
terminated as of midnight, June 30, 1973.'
For the reasons set forth below, we agree with the
Respondent that its unilateral institution of certain
terms and conditions of employment on the morning of
July 2, 1973, did not violate Section 8(a)(5) of the Act.
The record shows that on or about April 6, 1973, Re-
In support of this position, Respondent points out that its employees'
hospitalization insurance coverage under the old contract expired as of June
30, 1973, and that without another hospitalization plan in effect as of July
1, 1973, the employees would not be covered by any plan
spondent timely notified the Union of its intention to
terminate the then existing contract effective June 30,
1973. The Respondent also timely notified the Union
that it was withdrawing from the multiemployer bar-
gaining association and at the same time submitted a
proposed contract to Local 612 for consideration with
a request that the parties meet and commence bargain-
ing on Friday, April 13, 1973. Respondent received no
reply from the Union, nor did anyone from the Union
appear at Respondent's office on the 13th. On April 14
Dove, Respondent's president, contacted Sam Webb,
Local 612's business manager, by telephone with re-
gard to arranging a meeting. Dove suggested that a
meeting be held on April 18, and advised Webb he
would confirm this date by phone on the 17th. Dove
also requested that in the event Webb could not meet
on the 18th that he [Webb] furnish several alternative
dates. On April 16, a message was relayed to Dove from
Webb that he could not meet on the 18th. Dove then
contacted Webb on the 17th and again requested that
Webb establish a date for bargaining on the new con-
tract. Webb advised Dove that he would be unable to
meet until "after the master contract was settled."
When Dove pointed out that the contract expired on
June 30, Webb responded that he had to go by "certain
rules and regulations." At Dove's request, Webb did
agree to submit to Dove the Union's proposals on May
11. When Dove did not receive the Union's proposals
as promised on May 11, he attempted to contact Webb
at his office. Webb not being in the office, Dove left a
message for Webb to call him. Receiving no response
from Webb, Dove again called the office on May 21,
and was advised that Webb had received Dove's mes-
sage.
During this same period of time, Respondent re-
ceived a letter dated May 14, from the International
Union, advising that sometime in June a "properly
authorized subcommittee" would be appointed to meet
with Respondent and that it was "assumed" that this
would occur "some time during the month of June."
On May 22 Dove, by letter to the International Union,
informed them that the proposed period for negotia-
tions was unacceptable and again urged that a commit-
tee be appointed to meet with Respondent within not
more than 5 days after receipt of the letter. Dove again
enclosed a copy of Respondent's proposals for a new
contract.
On June 6 Respondent, having received no response
from the Union, filed a charge with the Board charging
that the Union was refusing to meet and bargain in
good faith in violation of Section 8(b)(3) of the Act.
Shortly after the charge was served on Local 612, Dove
215 NLRB No. 149.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received a telegram from Webb that Local 612 would
meet with Dove in Washington , D.C., on June 14.
Webb further advised that the purpose of meeting in
Washington was because of other commitments of Lo-
cal 612 . Dove , along with Bunton , Respondent's gen-
eral manager , arrived in Washington to meet with
Webb and International Representative Smith at the
appointed time . From the record testimony and exhib-
its, it is clear that ( 1) Webb did not believe that Dove
would come to Washington , (2) neither Webb nor
Smith was prepared to engage in any negotiations, (3)
there were in fact no meaningful negotiations , and (4)
Webb's purpose in inviting Dove to come to Washing-
ton was nothing more than a ploy to evade liability
under the Section 8(b)(3) charge filed by Respondent.
Dove and Bunton , frustrated in their attempt to engage
in negotiations , returned to Alabama.
On June 26 , Dove received a letter from Webb dated
June 25 atjd ostensibly written by Webb from his Bir-
mingham office , advising Dove that the Union was now
ready to meet and that Dove should advise the Union
as to the dates Dove would be able to meet with the
Union . Dove immediately called Local 612's office and
was advised that Webb was still in Washington. Dove
then wired Webb that he would be available from 1
p.m. to 8 p . m. on each day from Wednesday , June 27,
until agreement is reached. Upon receipt of Dove's
wire , Webb wrote Dove on June 27 , advising that he
would be tied up in Washington until June 29, but that
upon his return on June 29 he would contact Dove to
set a date to "commence" negotiations . On Friday,
June 29 , Webb called Dove from his Birmingham office
advising that he was back in town . Dove attempted to
arrange a meeting with Webb that day and on Satur-
day. Webb 's reply was that- he could not meet because
Smith , the International representative , would not be
available , but that "if'Mr . Smith "talked to the boss"
and "if' Mr. Smith could catch a flight back on Mon-
day, Webb would call Dove and let him know some-
thing. (Emphasis supplied.)
From the above recitation of the facts it is clear that
Respondent had been and continued to, throughout the
term of the expiring contract , diligently and earnestly
seek bargaining sessions with the Union 's representa-
tives , and that the union representatives were equally
insistent on not meeting with Respondent until other
matters which it considered of superior priority were
resolved . It is also clear that , by virtue of its agents'
conduct, Local 612 violated Section 8 (b)(3) of the
Act.' It is also clear that , as of June 29, Respondent
had no hope of discussing any of its proposed contract
2 See Local Union # 612, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers ofAmerica, etc (AAA Motor Lines, Inc),
215 NLRB No 148, issued this date, wherein the Union's conduct was
found violative of Sec 8 (b)(3) of the Act
terms with the Union prior to the contract's expiration.
As of midnight, June 30, Respondent's contract with
the Union expired. At the same time, the Union had
had before it for almost 2-1/2 months Respondent's
proposals for a new contract. Having refused to meet
and bargain with the Respondent right up to the date
the contract terminated, the Union placed the Re-
spondent in the position of having to take immediate
action to avoid losses of certain benefits to its em-
ployees. In doing so, we note that the Respondent in-
stituted only those changes that had already been
proposed to the Union; and that only matters of im-
mediate concern to the employees were instituted as of
July 1, 1973, those matters such as Respondent's
proposed pension plan being left open for future
negotiations with the Union.
In view of the circumstances herein, particularly the
Union's refusal to meet and bargain with Respondent
over terms for a new contract prior to the expiration of
the old contract, we find that the Respondent was justi-
fied in unilaterally instituting certain changes in the
terms and conditions of its employees effective the day
after the old contract expired, and that by unilaterally
instituting those changes, Respondent did not violate
Section 8(a)(5) of the Act.' Accordingly, we shall dis-
miss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the complaint herein be, and
it hereby is, dismissed in its entirety.
' In view of our finding herein, we find it unnecessary to pass on Respon-
dent's contention that the Union was also taking an intransigent position on
its claim that the old "national master" agreement had not expired and that
the Respondent would have to take the new "national master" or nothing
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge- Upon a
charge filed on July 16, 1973, the General Counsel of the
National Labor Relations Board, by the Regional Director
for Region 10 (Atlanta, Georgia), issued a complaint on
December 14, 1973, against AAA Motor Lines, Inc., herein
called the Respondent or the Company, alleging that it had
engaged in certain unfair labor practices within the meaning
of Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended, herein called the Act. The Respondent filed
an answer denying the allegations of unlawful conduct al-
leged in the complaint.
Pursuant to notice, a hearing was held before Administra-
tive Law Judge John P. von Rohr in Birmingham, Alabama,
on March 26-28, 1974. Briefs were received from the General
Counsel, the Respondent and the Charging Party on May 13,
1974, and they have been carefully considered.
AAA MOTOR LINES, INC.
Upon the entire record and from my observation of the
witnesses, I hereby make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
AAA Motor Lines, Inc., is an Alabama corporation with
its principal office, terminal, and place of business located at
Birmingham, Alabama, where it is engaged in the intrastate
transportation of freight by motor vehicle. During the calen-
dar year preceding the hearing herein, the employer received
more than $50,000 in gross revenue from operations which
functioned as essential links in the transportation of com-
modities in interstate commerce.
The parties concede, and I find, that the Company is en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
Local Union No. 612, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Ind., herein called
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Facts
The Union has been the collective-bargaining agent of the
Company's driver and dockmen employees for 16 or 18 years.
The last contract between the parties was effective from April
1970 to June 30, 1973. This contract was the National Master
Freight Agreement negotiated by the International Team-
sters Union negotiating committee and an employer associa-
tion. Although the Respondent was not a member of the
employer association, its practice had been to adopt the mas-
ter agreement with minor modifications. This it did with
respect to the last contract by an addendum executed on June
26, 1970.
On February 26, 1973, Frank Fitzsimmons, chairman of
the Teamsters National Freight Industry Negotiating Com-
mittee, notified the Respondent and other affected employers
of its desire to negotiate changes and revisions of the aforesaid
national agreement. On March 9,1 the Local Union sent a
similar notice to the Company, with appropriate notices also
being served upon the Federal and state agencies.
By letter dated April 6, the Company advised the employer
association and representatives of the Local and International
Union that it was withdrawing from the multiemployer bar-
gaining unit and also that it was thereby revoking the au-
thority of the employer association to bargain on its
behalf.' On the same date, April 6, the Respondent in a spe-
cial letter, signed by its president, Earl Dove, and addressed
to Sam Webb, the president and business administrator of the
I All dates refer to the year 1973, unless otherwise indicated
2 There is no issue in this case as to the timeliness or effectiveness of this
notice by the Company
795
Local Union, requested that a bargaining meeting be held at
the company offices on April 13, 1973, with respect to a
proposed new collective-bargaining agreement, a copy of
which proposed contract on behalf of the Respondent was
enclosed with the letter. Although Dove waited in his office
on the date of the proposed meeting , no union representative
appeared.
By letter of April 14, Company President Dove again
wrote Webb to request a bargaining meeting. Alluding to the
failure of any union representative to appear for his proposed
April 13 meeting, Dove this time requested that a meeting be
held at his office on April 18.3 However, he further stated
that if Webb could not be present on this date, that he furnish
"several alternative dates for a meeting within the next ten
days." Webb testified that in response to this letter he called
Mr. Kilgore, Respondent's terminal manager in Birming-
ham, to advise that he could not meet on that date because
his involvement in national negotiations in Washington, D.C.
would prevent him from being in the area except on week-
ends. Dove testified that although he learned that Webb
would not be present on April 18, he learned this through his
father, John Dove, who advised that Webb had called him
and notified him to this effect.
On April 17, Dove called Webb and again requested that
a date be set for the commencement of contract negotiations.
When Webb replied that he was going to Washington later
that day and that he would not be able to meet and negotiate
until after the master contract was settled, Dove protested
that the contract ended on June 30 and that Webb's proposed
time to meet would be too late. At this point Dove reiterated
his request for a bargaining meeting , but Webb responded
that "he had rules and regulations that he had to go by, and
would not be able to meet until after the master contract was
settled."' Dove finally asked that Webb provide him with a
copy of the Union's contract proposals and Webb agreed to
furnish them on May 11.
Dove credibly testified that he did not receive the contract
proposal on May 11, whereupon he called the union office.
Webb was not in but a secretary told Dove that she would
notify Webb that he had called. Hearing no further word,
Dove called Webb's office again on May 21. He again spoke
to the secretary, who this time merely assured him that she
had advised Webb of his earlier call.
On May 14, the Respondent received a copy of a form
letter addressed to "Employers Withdrawing From National
Negotiations," signed by Frank Fitzsimmons, which stated as
follows:
This will acknowledge receipt of your letter expressing
your intention and desire to engage in negotiations for
a new freight contract (over-the-road, local cartage, of-
fice and garage) on a local basis.
3 Although Webb testified that he advised the Company that he could not
be present on April 13, 1 am persuaded that he was mistaken in this tes-
timony Otherwise there would be no reason, particularly at this time, for
Dove to note in his April 14 letter that no union representative appeared
at this time Indeed, in that letter Dove further noted that he called Webb's
office on April 13, but was informed that Webb was out of town. I am sure
that he would not have made this call if he had been advised in advance that
the Union would not be present. Dove, it may be noted, resides in Mont-
gomery, Alabama, whereas Webb resides in Birmingham , Alabama
Credited testimony of Dove
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since we are authorized to represent the Local Unions
involved and since our principal negotiators will be en-
gaged in negotiations in Washington, D.C., with the
major part of the trucking industry, it will be necessary
for us to appoint a properly authorized subcommittee to
meet with you. This will be done as soon as time will
reasonably permit. We assume that this will be sometime
during the month of June.
If this arrangement is not satisfactory, please let us
know and we shall endeavor to accommodate you. This
offer to negotiate with you individually is not to be con-
strued as a waiver of our position that you are obligated
and shall continue to be a part of the national multiem-
ployer unit.
By letter dated May 22, Dove advised Fitzsimmons that
any proposed June meeting for commencement of negotia-
tions would be unacceptable. Reviewing the past attempts by
the Company to commence bargaining, the letter concluded
with the request that the Union "make arrangements to meet
with AAA . . . within not more than five (5) days after your
receipt of this letter."
On June 6, after receiving no response to the above letter,
the Respondent filed unfair labor practice charges against the
Union, alleging that it had violated Section 8(b)(3) of the Act.
Webb testified that after discussing the charge with C. W.
Smith, an International representative, it was determined that
the following telegram be sent to the Company, which tele-
gram in fact was sent to Dove on June 12:
This is to advise you that a representative from Local
Union 612, Sam Webb, will meet with you in Washing-
ton D C at the Shoreham Hotel, Room 130, at 9 AM on
June 14th 1973 The purpose of the meeting in Washing-
ton is because of other commitments of Local Union 612
Dove and William Bunton, the latter a company vice-presi-
dent, responded to the above telegram by going to Washing-
ton at the appointed time and place. The morning meeting
was brief, with the parties, including Smith and Webb who
were present for the Union, agreeing to exchange written
contract proposals and agreeing to meet again at 1:30 p.m. in
the afternoon.' However, according to the credited tes-
timony of Dove, Smith at this time stated that they "might
be allowed a break on the wages on a wage addendum but the
work rules of the master contract would have to remain
intact."
Upon returning to their hotel room, the company represen-
tatives ascertained that Smith had mistakenly given them a
proposed amendment to an area supplement instead of the
Union's proposal. Accordingly, they again sought out Webb
and found him in the hotel lobby at about 11:40. According
to the credited testimony of Dove, as substantially cor-
roborated by Bunton, Webb at this time stated that they
"were going to agree to the master contract with the wage
addendum and that's it." He then told the company represen-
tatives that "we would meet at 1:30 and negotiate if that is
what we wanted to do, but we were wasting our time . . . that
5 Although the Respondent had previously furnished its contract proposal
to the Union on April 6 , Webb conceded that up to this point he had only
"glanced" at it and that Smith had never seen it bcfon'.
the only reason that he sent the telegram . . . was to get
around the unfair labor practice charge." He added that
"there was some 2000 carriers that he was negotiating with
and if he allowed one short haul carrier to change off of the
master contract that he would have to deal with all of them";
and that neither he or the Union would allow any such thing
to occur. To all this Dove finally responded that there would
be no point in meeting at 1:30, but asked that they meet at
5:30 p.m. so that at that time he could at least apprise him
of the Company's objections to various provisions in the mas-
ter contract. Webb agreed to do so.
Dove met with Webb in the hotel cocktail lounge at about
5 p.m. When Dove began voicing certain objections to the
master contract, such as the grievance procedure, Webb again
expressed displeasure at the Respondent's filing unfair labor
practice charges. He finally told Dove to return to Alabama
and to stop bothering him, that when the master contract was
settled, he and Smith would return to Alabama as negotiating
agents and that they would settle all that needed to be settled
in half a day.6 With this the meeting concluded. Dove and
Bunton returned to Alabama the next day without further
discussion with the union representatives.
No further exchange took place between the parties until
June 25, at which time Webb wrote that the Union was "now
ready to enter contract negotiations" and that Dove should
advise him of the dates and times he would be available. On
June 26, upon receipt of the letter and after first attempting
to reach Webb at his office by telephone, Dove wired Webb
stating that he would be available for negotiations in Birming-
ham from 1 p.m. until 8 p.m. on each day from Wednesday,
June 27, 1973, until agreement was reached. In a letter to
Dove dated June 27, Webb advised that he was still tied up
in Washington, but expected to be back in Birmingham on
June 29 and would contact him immediately upon arrival "to
set up dates to commence negotiating."
Shortly before noon on June 29, after returning to Birming-
ham, Webb called Dove with respect to the scheduling of a
meeting. Dove asked that a meeting be held that day, but
Webb stated that Smith was not in town and that he would
have to talk to Smith first. Dove credibly testified that at this
point the conversation continued as follows:
I pressed for a meeting that day, Friday, or sometime
over the weekend. Mr. Webb said that he could not meet
with me that day or any time over the weekend. But that
possibly Mr. Smith could catch a flight back from Jack-
son, Mississippi on Monday and that if Mr. Smith talked
to the boss and it was worked [out] and that if Mr. Smith
could catch a flight on Monday, July 2 and let me know
something.
At about 8 or 8:30 a.m. on the morning of Monday, July
2, which was the time for the change in shifts, Respondent
distributed copies of the following letter, which was dated
July 1, to its employees:
6 The facts concerning the meetings at 11:40 a.m. and 5 p.m. on June 14
are set forth above largely in accordance with the testimony of Dove, whom
I credit. Dove impressed me not only as an honest witness, but as also having
a good memory concerning the details of these and other negotiating meet-
ings. Insofar as Webb's testimony concerning the Washington meetings
conflicts with that of Dove, I credit the testimony of Dove.
AAA MOTOR LINES, INC 797
The agreement between AAA Motor Lines, Inc. and
Teamsters Local Union 612, Birmingham, Alabama, ex-
pired according to its terms at midnight, Saturday, June
30, 1973.
Because we have been unable to reach an agreement with
your bargaining representative, Teamsters Local 612,
and because we believe that the terms of the contract
which we proposed to Teamsters Local 612 and have
explained to you is the best thing for the company and
for you, all work performed beginning July 1, 1973, will
be performed in accordance with our proposal to your
bargaining representative Teamsters Local 612 to the
extent permissible.
The proposals that we have discussed with you during
the past several days will be put into effect in their
entirety effective July 1, 1973, with the exception that
the pension plan that we proposed cannot be installed.
We must reach some sort of settlement with Local 612
before it can be determined which one of the two plans
you will be in.
If you have any questions concerning our proposed con-
tract and the cdnditions under which work will be per-
formed on July 1, 1973 and days thereafter, ask them
now or at any time. A general summary of our proposal
to Local 612 which becomes effective July 1, 1973 is on
the attached sheet. Be sure and ask questions if you have
any or if there is any point that needs clarification. We
look forward to working with you.
The principal attachment to the above letter stated as fol-
lows:
July 1, 1973 Letter to AAA Employees, page 2.
SUMMARY OF THE PROPOSAL OF AAA MOTOR
LINES, INC
DATED APRIL 6, 1973:
It is effective immediately upon agreement and signa-
ture.
Your wages go from $4.59 to $5.29, effective July 1,
1973. This is a 70q per hour increase, which amounts to
$28.00 per week. Your wages will continue to increase
to $6.29 per hour during the term of the contract
proposal. This amounts to a total increase in wages of
$1.70 per hour over the contract term, which is a 37%
increase in wages you will receive.
Jury Pay. Full pay while you are on jury duty.
Sick Pay. Full pay after the fifth day, with a minimum
of 15 days allowable, a maximum of 90 days, depending
on seniority.
Funeral Leave. Three days.
Paid Vacation. One week after 12 months, two weeks
after 24 months.
Paid Holidays: New Years Day, Memorial Day, Fourth
of July, Labor Day, Thanksgiving Day, Christmas Eve
Day and Christmas Day.
Pension Plan: $375.00 monthly retirement income at age
60, based on number of years seniority; early retirement
privileges; full vesting after seven years, and excellent
retirement program.
Hospitalization Program, as outlined attached
Again, be sure and ask questions if you have any or if
there is any point that needs clarification We look for-
ward to working with you.
With respect to any changes from the contract that are not
self-explanatory in the above notice, it may be noted that
regarding: (1) holidays-Memorial Day was substituted for
the employee's birthday; (2) vacations-these were decreased
to 2 weeks for employees who had over 15 years of service;
(3) funeral leave-increased from 2 to 3 days; (4) hospitaliza-
tion plan-an entirely new plan was substituted; and (5) pen-
sion plan-an entirely new plan was submitted.
It is undisputed that, except for the immediate implemen-
tation of the pension plan, the above changes were instituted
immediately upon the July 2 announcement.
To continue with the sequence of events, Webb called Dove
at 9 a.m. on July 2 and agreement was reached to meet that
afternoon. This meeting was held at a Birmingham hotel and
was attended by Webb, Smith, Bunton, and Dove. Smith had
with him a copy of the letter dated July 1 which Respondent
that morning had distributed to its employees. The parties
went over the various items listed therein. Smith accepted the
Company's position with respect to sick pay, jury pay, and
funeral leave. He rejected vacations, asked that holidays be
amended, and stated that they were only 1 cent apart "on the
money." Having reached this point, Smith finally stated, ac-
cording to the unrefuted testimony of Dove, that in his view
"the terms of Article 39 [of the Master Contract] was still in
full force, and effect and at that time we had two contracts,
the one that we had instituted and we had accepted part of,
and the national master contract which continued in full
force [and] effect." Dove took issue with Smith, however, and
stated that in the Company's view the old contract had indeed
terminated on June 30. The meeting closed with Webb's sug-
gesting, and Dove agreeing, that Respondent check with its
attorneys concerning the Union's position that the old con-
tract was still in effect.
The parties, with the exception of Smith who did not at-
tend, met again on July 6.' Webb again had with him the
so-called company proposals, which were the terms the Com-
pany had already put into effect. Some discussion was had
concerning the grievance procedure as provided in the old
(master) contract. Dove pointed out certain provisions
therein to which he specifically objected. Dove testified that
at one point Webb stated that he would have to go along with
the master agreement, with a wage addendum, that the
Teamster International would not ratify his (Dove's) propos-
als even if the employees did. Nevertheless, as Dove
conceded, Webb finally did say that he would take Respon-
dent's proposal to the members to see what they thought of
it.
Webb called a membership meeting of Respondent's em-
7 The record reflects, as the General Counsel concedes, that Webb errone-
ously placed this meeting as having occurred on July 5
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees on July 7. At this meeting the employees voted to
reject Respondent 's contract proposals . They also voted to
strike, subject to sanction by the International.
A further negotiating meeting was held on July 12 with all
parties, including Smith and a Federal mediator, present. At
this meeting the parties again negotiated from Respondent's
proposals . The parties reached tentative agreement on a num-
ber of items and initiated their agreement with respect to
these provisions . The same parties met again on July 13, but
on this occasion the negotiations became deadlocked on the
issue of the use of casual employees
Webb met with the employee membership again on July
14. After explaining the Company's proposals and position,
the employees again voted to strike. A strike ensued on July
15, the pickets bearing signs with the legend "AAA Motor
Lines on Strike, Unfair Labor Practice Strike, Local 612."
The strike remained in progress as of the time of the hearing
herein.
B. Conclusions
The Unilateral Action
The complaint alleges that on or about July 2, 1973, Re-
spondent violated Section 8(a)(5) and (1) of the Act by unilat-
erally changing the existing wage rates, hours of employment,
and other terms and conditions of employment of the em-
ployees in the appropriate unit.
Preliminarily, it is to be noted that in a companion case to
this one , in which a Decision is being issued by me contempo-
raneously herewith,' the Union has been found to have vi-
olated Section 8(b)(3) of the Act by failing and refusing, from
April 13, 1973, through on about June 25, 1973, to meet with
the Respondent upon request.
In defense of the previously discussed unilateral changes
which Respondent put into effect on or about July 2, 1973,
Respondent contends that this action was not taken until an
impasse had been reached , at which point it was legally justi-
fied in doing so. While Respondent is correct in its legal
position that an employer generally is free to institute unilat-
eral changes once an impasse is reached , the issue in this case
is whether here the parties in fact had come to a genuine
impasse on July 2 when the unilateral action was taken. In
this connection , the essence of Respondent 's contention is
that the Union, by its failure to meet and bargain in good faith
from April 13, 1973, to on or about the end of June 1, 1973,
created a situation which was tantamount to an impasse.
Upon the entire record, and without condoning the
Union 's conduct in failing to bargain during the period men-
tioned above , I agree with the contention of the General
Counsel that the parties had not yet reached the point where
unilateral action by the Company was legally justifiable. The
fact is, as President Dove conceded,' that during his tele-
phone conversation with Webb on June 29, a Friday, he was
made fully aware that it was "certainly possible" that the
Union representatives would be available for a negotiating
meeting on Monday, July 2. In fact, this is just what hap-
pened. However, notwithstanding the likelihood that such a
meeting would be held, Respondent nevertheless announced
and put into effect the aforenoted changes in wages, hours,
and working conditions in early morning of July 2. In this
connection, it is highly relevant to note that Respondent has
failed to show any business consideration, or any other type
of urgency, for so suddenly giving implementation to the
changes which it sought in its contract proposals; and this it
did without every notifying the Union that if it did not meet
and negotiate prior to the expiration date of the contract, it
intended to act unilaterally. The absence of any cogent reason
for taking unilateral action , under circumstances similar to
that here present, has been a factor in Board determination
that unilateral action is not justified under the Act. Manor
Mining and Contracting Corporation, 197 NLRB 1057
(1972). Cf. Flowers Baking Co., 161 NLRB 1429, 1436-37.
In sum , the facts in this case impel me to find and conclude
that the parties had not reached a point that was tantamount
to an impasse in the bargaining negotiations. To the contrary,
and has been heretofore related, the Union agreed to a num-
ber of Respondent's contract proposals when the negotiations
began on July 2.10 Accordingly, by unilaterally instituting
changes affecting the employees ' wage's, hours , and other
terms and conditions of employment, Respondent violated
Section 8(a)(5) and, derivately, Section 8(a)(1) of the Act.
D. The Alleged Unfair Labor Practice Strike
The complaint alleges that the strike beginning on July 15,
1973, was an unfair labor practice strike. The General Coun-
sel's theory in this regard is, of course, premised upon the
assumption that the strike was caused , at least in part, by
Respondent 's unfair labor practice in instituting the unilat-
eral changes heretofore discussed. For the reasons discussed
below I am persuaded that notwithstanding Respondent's
unilateral action , the strike in this instance was motivated
solely for economic reasons.
As an apparent exception to the hearsay rule, at least inso-
far as cases arising under the Act are concerned, the Board
has long admitted in evidence testimony of union representa-
tives and union members concerning any discussions held or
statements made during union meetings pertaining to author-
ization of strikes. This rule has been held to be particularly
applicable, and is usually limited, to situations involving al-
leged unfair labor practice strikes, the reason being that tes-
timony concerning the expressions at union meetings is rele-
vant insofar as it may tend to reflect the motives of the
membership in voting to strike. However, recognizing that
there always is the possibility that statements made during
the course of these meetings may be self-serving or conclu-
sionary, it would appear to be clearly within the discretion of
the trier of the facts to determine the weight to be given to
any such testimony.
Turning to the union meeting of July 7, Webb gave a rather
lengthy and rambling account of his discussion with the
membership at this time. Thus, he testified he had "the
8 See Local Union # 612, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, a/w International Brother- 10 It is thus noteworthy that notwithstanding any protestations by Webb
hood of Teamsters, Chauffeurs, Warehousemen and Helpers ofAmerica, Inc that Respondent would be required to accept the master agreement, with a
(AAA Motor Lines, Inc.), 215 NLRB No 148 (1974) possible modified wage agreement , the Union in fact did make concessions
9 R 554 during the July 2 negotiations
AAA MOTOR LINES, INC. 799
union's proposal and the company's" and that he told the
employees what "the company had said they put into effect";
that he told the employees "that the contract had not expired
and that there could be two health and two pension plans at
that time because we had taken the position that our pension
plan and insurance was running"; that " I went completely
through the July 5 letters and discussed it with the people";
and that "I wanted everybody to understand that it is
[the] local union's position and I had talked to Mr. Smith
after getting this July 5 letter that it's our position that the
Company has acted on an unfair labor practice strike .. .
and if we do have a strike, it will be an unfair labor practice
strike." Webb also testified that, after answering questions
from the floor concerning the Company's and the Union's
pension, a secret ballot was taken and "they [the
employee-members] turned down the Company's contract
proposal 100%." A strike vote was subsequently taken, with
the employees voting 100 percent to authorize a strike.
A second union meeting was held on July 14. Webb testi-
fied that at this meeting he told the employees what had
transpired during the last [July 13] negotiating meeting with
the Respondent, particularly stressing the problems that
related to casual employees, insurance, and pension. Sum-
ming up , he testified:
I explained every article that we had agreed to, and went
back over all the other proposals, and told them they
took a vote on it and they voted it down 100%. So I
advised them that being as they had-the company had
said'that this was their final proposal. And so I told them
that the strike would start on the 15, which it did.
So much for Webb's testimony concerning the two meet-
ings wherein the employees voted to strike. Bearing in mind
that these meetings were held while contract negotiations
were still taking place, and notwithstanding Webb's assertion
to the employees at the July 7 meeting that it was the Union's
"position" that the Company had committed unfair labor
practices, from the above testimony it seems clear that the
employees were primarily interested in the Company's and
Union's economic "proposals." In any event, I think more
revealing of the Union's true motives in engaging in the July
15 strike is the testimony of Union Representative W. C.
Smith taken on November 6, 1973, in a civil suit brought by
the Respondent against the Union in the United States Dis-
trict Court for the Northern District of Alabama. Smith, it
will be recalled, participated in the first negotiating meeting
between the parties held on July 2. Indeed, at this meeting
Smith acted as principal spokesman for the Union and it was
he who accepted and initiated various of Respondent's con-
tract proposals. He also participated in the negotiations held
on July 12 and July 13. While Smith was not called as a
witness in the instant hearing, Smith did testify on behalf of
the Union in the aforenoted court proceeding. The relevant
part of his testimony in that proceeding, which I received as
an admission against interest, related to the purpose of the
strike in question and is as follows:
Q. Are you familiar with the Union's purpose in call-
ing the strike?
A. Yes.
Q. What was that purpose, please?
A. The employer ceased to pay Health and Welfare
and Pension and other benefits in regard to the present
contract that we considered was in effect. This Union
and its members are on strike today for the benefits that
that contract provides. Namely the employer ceased
paying insurance, pensions and other things that is a
continuation of service and payments that were very
important to these people, pensions, life insurance and
health and welfare. Without those payments these mem-
bers, employees of AAA, had a break in service, a break
in continuity of payments and we have tried to grieve it,
the Local Union had on July the 3rd and that grievance
was stopped and we didn't know when it would be able
to continue and the picket line was placed in attempt to
put that contract into effect.
Significantly, the sole reason given by Smith for engaging
in the strike was strictly economic in nature , namely, to
obtain a contract which incorporated the various economic
benefits sought by the Union. In his entire testimony on the
subject, there is no claim whatsoever that the strike was
caused, in whole or in part, by any Respondent unfair labor
practice. It is my view that Smith's testimony was given more
objectively than was Webb's. Accordingly, I find and con-
clude that the strike which began on June 15 was solely
economic in nature and that it was not an unfair labor prac-
tice strike." Moreover, and while I do not regard this as
decisive to this finding, I do think it appropriate to note that
over the years Respondent appears to have had a good rela-
tionship with the Union. There is no evidence at all that
Respondent is an antiunion employer or that it deliberately
sought to undermine the Union.
In view of all the foregoing, I recommend that the allega-
tion in the complaint pertaining to the alleged unfair labor
practice strike be dismissed.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described 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 disputes
burdening and obstructing commerce and the free flow of
commerce.
V THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices , I will recommend that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
11 It is also noteworthy that Respondent engaged in three bargaining
meetings (July 6, 12, and 13), after Respondent instituted its changes, a
factor which is further indicative that the strike was for economic reasons
rather than in protest of the unilateral action Although Webb testified that
it was necessary to obtain the sanction of the International before engaging
in a strike , it appears that this was given priorto the July 14 union meeting
This would seem evident from the testimony of Webb who said that after
the employees rejected Respondent 's proposals at this meeting, "I told them
that the strike would start on the 15th , which it did "
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union
is a labor organization, all within the meaning of the Act.
2 All local truckdrivers and warehousemen employed by
the Respondent at its Birmingham , Alabama, terminal, ex-
cluding all other employees, office clerical employees, guards
and supervisors as defined in the Act, constitute an appropri-
ate unit for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
3. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No.
612, has at all material times herein been the exclusive repre-
sentative of the employees in the aforesaid appropriate unit
for the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
4. By the unilateral announcement and implementation of
changes in wages , hours, and working conditions on July 2,
1973, the Respondent has engaged in and is engaging unfair
labor practices within the meaning of Section 8(a)(5) and (1)
of the Act.
5. By the aforesaid refusal to bargain with the Union, the
Respondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of
the Act, thereby engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
7. The strike which began on July 15, 1973, was not an
unfair labor practice strike
[Recommended Order omitted from publication.]