Allen Materials, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1116 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allen Materials, Inc., Debtor-in-Possession and Gen-
eral Drivers, Salesmen and Warehousemen
Local 984, an affiliate of the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America. Case 26-CA-
7389
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND ME MBERS
JENKINS AND PENELLO
On March 17, 1980, Administrative Law Judge
David L. Evans issued the attached Decision in
this proceeding. Thereafter, General Counsel and
the Charging Party filed exceptions and a support-
ing brief; Respondent filed an answering brief.
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, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Allen Materials, Inc., Debtor-In-Possession, Mem-
phis, Tennessee, its officers, agents, successors, and
I In adopting the Administrative Law Judge's dismissal of the allega-
tion that Respondent violated Sec. 8(a)(5) and (1) of the Act in its recall
of the truckdrivers, we do not adopt his discussion of the issue but agree
with his result solely on the ground that it appears that Respondent made
a good-faith attempt to apply the seniority provision of the contract ill
the recall and in fact did achieve substantial compliance with such provi-
sion in effectuating the recall. In reaching our result here we find it un-
necessary to rely on the Administrative Law Judge's erroneous statement
that employee Frazier had testified that all prior recalls had been made
by telephone, as Frazier did not testify at the hearing and no one else so
testified.
The Administrative Law Judge recommended in his remedy and rec-
ommended Order that Respondent pay interest on any moneys Respon-
dent owed the Union's health, welfare. and penlsion fund. However, be-
cause the provisions of employee beliefit fund agreements are variable
and complex, the Board does nriot provide at the adjudicatory stage of the
proceeding for the addition of interest at a fixed rate on unlawfully with-
held fund payments We leave to the compliance stage the question
whether Respondent must pay ay additional amounts into benefit funds
in order to satisfy our "make whole" remedy. These additional amounts
may be determined. depending on the circumstances of each case, by ref-
erence to provisions, to evidence of any loss directly attributable to the
unlawful withholding action, which might include the loss or return on
investment of the portion of funds withheld, additional administrative
costs, etc but not collateral losses .Merrtvieathiir Optical Compuny. 240
NLRB 1213 (197q) We havse modified the remedy and iie recommenided
Order accordingly
252 NLRB No. 157
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 2(b):
"(b) Make whole the employees in the appropri-
ate unit by paying all health and welfare contribu-
tions and pension fund contributions as required by
the bargaining contract which was effective from
March 1, 1977, to March 1, 1980, as modified by
subsequent agreement with the Union, and as re-
quired by any succeeding collective-bargaining
agreement, to the extent that such contributions
have not been made or that the employees have
not otherwise been made whole for benefits lost
and their ensuing expenses which would have been
covered by said health and welfare plans. This
shall include reimbursing employees' contributions
that they themselves may have made for the main-
tenance of the Union's pension and/or welfare cov-
erage after Respondent unlawfully ceased contrib-
uting, for any premiums they may have paid to the
third party insurance companies for health and
welfare coverage, and for any medical or dental
bills employees may have paid directly to health
care providers that the contractual policies would
have covered."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
PosTFID BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represen-
tatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE Wll.l NOT refuse to recognize and bar-
gain collectively with General Drivers, Sales-
men and Warehousemen Local 984, an affiliate
of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of
Ill6
ALLEN MATERIALS, INC
America, concerning wages, hours, and other
terms and conditions of our employees in the
appropriate unit which is:
All production and maintenance employees
at the place of business of the employer at
1572 Chelsea, Memphis, Tennessee, exclud-
ing all office clerical employees, watchmen,
guards and supervisors as defined in the Act.
WE WIL. NOT repudiate our agreement with
the Union made through the process of collec-
tive bargaining for a schedule of payments to
the Union's health and welfare and pension
fund plans, or any other agreement made
through the process of collective bargaining.
WE WIL. NOT institute changes in vacation
pay or any other term and condition of em-
ployment of the employees in the above-de-
scribed unit during the effective term of a col-
lective-bargaining agreement with the Union
without first consulting and bargaining with
the Union concerning such changes and reach-
ing an agreement on any modification of the
terms of the contract.
W. WilL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE wit.. make whole our employees for
any failure in paying or delay in paying their
1978 vacation pay.
WE WILI. make whole our employees in the
appropriate unit by paying all health and wel-
fare contributions and pension fund contribu-
tions as required by the bargaining contract
which was effective from March 1, 1977, to
March 1, 1980, as modified by subsequent
agreement with the Union, and as required by
any succeeding collective-bargaining agree-
ment, to the extent that such contributions
have not been made or that our employees
have not otherwise been made whole for bene-
fits lost and their ensuing expenses which
would have been covered by said health and
welfare plans. This shall include reimbursing
employees' contributions that they themselves
may have made for the maintenance of the
Union's pension and/or welfare coverage after
we unlawfully ceased contributing, for any
premiums they may have paid to the third
party insurance companies for health and wel-
fare coverage, and for any medical or dental
bills employees may have paid directly to
health care providers that the contractual poli-
cies would have covered.
AI .I.N MATERIAI.S, INC., DEBTOR-
IN-POSSESSION
DECISION
STATFMENT O: T HE CASE
DAVID L. EVANS, Administrative Law Judge: This
proceeding under Section 10(b) of the National Labor
Relations Act was heard in Memphis, Tennessee, on Sep-
tember 5 and 6, 1979. The underlying charge, as amend-
ed, was filed by the Union on September I, 1978,' and
the complaint and notice of hearing issued on April 26,
1979. The primary issue is whether Respondent, as ad-
mitted successor to Allen Materials, Inc., refused to bar-
gain in violation of Section 8(a)(1) and (5) of the Act by:
(a) refusing to grant contractual wage increases to its
employees; (b) failing to honor employees' seniority
rights; (c) failing to make payments to its employees'
health and welfare and pension funds; and (d) failing to
pay full amounts of vacation pay to its employees. Re-
spondent answered denying the refusal to bargain.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel and Re-
spondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Allen Materials, Inc., Debtor-in-Pos-
session, admits that since February 1, 1978, it has been a
successor employer of Allen Materials, Inc. During the
12 months preceding issuance of the complaint, Respon-
dent in the course and conduct of its business operations
purchased and received at its Memphis, Tennessee, loca-
tion products valued in excess of $50,000 directly from
points located outside the State of Tennessee and during
the same period of time Respondent sold, shipped and
delivered from said location products valued in excess of
$50,000 directly to points located outside the State of
Tennessee. Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
it. THE ABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR lABOR PRACTICES
A. Background
Respondent operates a concrete block manufacturing
plant and ready-mix concrete delivery service in Mem-
phis. Its president at all times material herein has been
I All dte, are in 1978 unless olherlwise specified
1117
)DECISIONS ()OF NATIONAL I.ABR RFI.ATII)NS BO()ARD
William B. Allen; general manager was Fred Richardson;
block plant manager was Basil Nichols: dispatcher super-
visor (and undisputed supervisor) of the ready-mix driv-
ers was William Martin. Each of these individuals,
except Richardson, testified.
Respondent has recognized the Union as the collec-
tive-bargaining representative of its production and main-
tenance employees since the mid-1950's. There has been
a succession of collective-bargaining agreements the last
of which has effective dates of March 1, 1977, to March
1, 1980. The contracts between the parties expressly cov-
ered as the production and maintenance unit Respon-
dent's ready-mix concrete plant employees, drivers, me-
chanics, yardmen and helpers. Although not expressly
mentioned in the contracts it is essentially undisputed
that as a part of the production and maintenance unit the
parties have included the employees of Respondent's
concrete block plant which is on the same premises as
the rest of the operation.
Relevant provisions of the last contract between the
parties are: Article XV, Seniority, provides "Seniority
shall prevail. Seniority shall be based on length of ser-
vice and ability to perform work." The article further
provides "employees shall be laid off according to se-
niority, and employees shall be returned to duty accord-
ing to their seniority rights, provided such employees
report within four (4) days after notice, and registered
mail to the last known address shall be accepted as proof
of notice."
Article XIX, Grievance and Arbitration, provides for
a grievance procedure which requires grievances to be
filed within 5 working days after the act complained of
has been committed and which includes a binding arbi-
tration provision.
Article XXI, Vacations, provides progressively larger
vacations for employees who have worked 1, 3, 15, or 20
years.
Article XXVIII, Wages, provides for wage increases
for all classifications effective March 1, 1978, and March
1, 1979. (Although block plant employees are not specifi-
cally listed, they are paid the same, and were to get the
same wage increases, as truckdrivers according to undis-
puted testimony.)
Article XXXII, Health and Welfare, provides for con-
tributions to the Central States, Southeast and Southwest
Area Health and Welfare Fund for the purposes of a
group insurance plan. The contract called for increases
to that fund effective March , 1978, and March 1, 1979.
Article XXXIII, Pension, provides for contributions to
the Central States, Southeast and Southwest Area Pen-
sion Fund with increases effective March 1, 1978, and
March 1, 1979.
On February 9, 1978, Allen Materials, Inc., filed a pe-
tition for an arrangement under Chapter XI of the Bank-
ruptcy Act in Federal District Court and was declared a
debtor in possession. However, Respondent did not seek
to disaffirm its agreement with the Union. Instead, it
sought voluntary "cooperation" from the Union in an at-
tempt to ease part or all of the financial burden imposed
by the contract. The extent of which the Union agreed
to cooperate is a factual issue in this case.
B. February Meetings and the March I Wage Increase
The complaint alleges that since on or about March 1,
in violation of Section 8(a)(5), Respondent unilaterally
"[r]efused to grant contractual wage increases to its em-
ployees." It is undisputed that Respondent delayed the
increases called for by the contract from March I to
about November 1.
On or about February 6, Allen called Union Assistant
Business Agent Authur B. Crutcher and informed him
that Respondent was considering filing the Chapter XI
petition, but there was no discussion of the effect of such
petition. Allen and Crutcher met on February 9, appar-
ently hours after the petition was filed. Crutcher testified
that Allen stated that he wanted wages frozen and
wanted permission to lay off employees out of seniority.
Crutcher testified that he replied that the contract must
he followed. As the General Counsel points out, Allen's
testimony about this meeting is totally vague, but neither
do I credit Crutcher that he adamantly insisted in this
meeting that all contractual provisions be followed, in-
cluding specifically the seniority clauses and the require-
ment that wage increases be granted to all unit personnel
on March 1. Crutcher and Allen agreed to meet again
with respective counsel, and there would have been no
purpose in Crutcher's agreeing to the meeting if, as he
claimed, he took the position in the first meeting that
there was nothing to discuss.
The second meeting was held in late February.
Crutcher was accompanied by Attorney John Koelz and
Allen was accompanied by Attorney John R. Dunlap.
Koelz testified; Dunlap did not. Allen testified:
[W]e told them that we, at this time, thought that
we could make the pay increase sometime in the
fall, probably October or November, but we
weren't sure, that we would do our best. We had
frozen all wages for all employees. And they said,
all right, and that was, basically, all that was said.
Koelz described the discussion of wages thusly:
Basically, [w]e just discussed the situation where we
was told that the company was in bankruptcy, and
just discussed the possibilities of wage increases that
was in accordance with the contract. I don't think
there was any firm commitment made either way.
There was some discussion as to the freezing of the
wages at a certain point.
At this time, we had discussed the possibility of
freezing wages. However, like I said, there was
nothing that was firm about this point. We said we
would look into it and discuss it with the member-
ship.
Koelz was specifically asked by the General Counsel:
Q. From your own personal knowledge in the
meetings, do you know whether or not the Union
ever agreed to allow the company to grant wage in-
creases at a time other than when they were due in
the contract'?
A. Nothing definite, no.
1118
ALLEN MATERIALS. INC
Q. All right. Do you know whether or not, from
your own personal knowledge, that the Union ever
agreed to allow the company to recall employees
out of seniority?
A. Absolutely not.
Koelz was given another opportunity by me to deny that
he and/or Crutcher granted permission for delay of the
March I wage increase. Koelz again failed to deny such
permission was given.
On direct examination Crutcher claimed an almost
total inability to remember what happened at this second
meeting. On cross-examination he claimed inability to re-
member if he asked when, if not on March 1, the March
I wage increases would be implemented.
I find that in the second meeting the Union agreed to
the postponement of the wage increase until "October or
November" as Allen testified. My reasons are: although
given the opportunity to, even led to, deny that the
Union had agreed to be delayed, Attorney Koelz refused
to do so. His "nothing definite" response regarding the
wage increase was (and is) strikingly different from his
"absolutely not" response regarding seniority. Koelz ad-
mitted offering to take the proposition to the member-
ship; this was hardly an insistence that the contract abso-
lutely be followed regarding the March 1 wage increase
which was scheduled. If Koelz had said anything which
would indicate the Union was demanding the March I
wage increase be implemented as scheduled, despite Re-
spondent's appeal, Koelz (and Crutcher) assuredly would
have clearly indicated in their testimony. Crutcher's
claimed inability to remember asking when the wage in-
creases were to be implemented (if not on March I) was
plainly incredible. Moreover, as discussed infra, although
there were numerous grievances filed immediately over
layoffs and failures to recall in seniority and failures to
pay vacation pay which occurred almost immediately
after the second meeting, there were no grievances, or
other protests, when, on March 1, Respondent failed to
implement the wage increase called for by the contract.
Respondent's failure to pay the March I wage increase
continued until about November 1 when it was imple-
mented. There was no oral or written objection to the
delay until September I when Koelz filed the original
charge herein on behalf of the Union. Koelz could not
satisfactorily explain why the charge was not filed for 6
months and Crutcher could not credibly explain why
there were no grievances filed over the delay of the
wage increase. The only logical reason for a failure to
object in some form was that the Union, and the employ-
ees, knew why the wage increase had been delayed; the
Union had given permission for the delay, either with or
without its taking the matter to the membership for ap-
proval. Upon these factors, and the credible demeanor of
Allen as he testified regarding the Union's giving con-
sent, I find that the Union did in fact consent to the
delay of the March I wage increases, and Respondent
did not violate the Act in delaying the wage increases
until November 1978.
C. Layoff and Recall Issues
There was presented testimonial and documentary evi-
dence at the hearing that Respondent laid off and re-
called several employees including block plant employ-
ees and mixer drivers in 1978. The General Counsel
makes the blanket allegation that seniority was not fol-
lowed in regard to lay off or recall and, in regard to
mixer drivers, that Respondent failed to follow a con-
tractual requirement that recalls be made by registered
letter. The General Counsel contends that by this failure
to follow the contract, Respondent violated Section
8(a)(5) of the Act. The employer replies that the layoffs
and recalls were made according to ability of employees
to perform work and that its failure to recall employees
by registered mail was in accord with past practice and
that, at most, it has breached the contract but not violat-
ed the Act.
The reliable evidence presented is extremely' sketchy.
At many points the General Counsel relies on verbal tes-
timony where it is obvious that documentary evidence
was necessary. This is especially true as to the facts of
layoffs and recalls and the classification and seniority
dates of the employees involved. The General Counsel
offered her Exhibit 33 which bares seniority, layoff, and
recall dates of some employees but, contrary to her rep-
resentation, it does not cover all employees involved.
However, taking the credible portions of the verbal testi-
mony and the parts of the General Counsel's Exhibit 33
which can be relied upon, I make the following findings:
During the week of February 8, the following employ-
ees (listed here in descending order of their seniority)
were laid off by Respondent: Minor, Niter, Taylor, T.
Johnson, Pollion, Frazier, Scaife, L. Johnson, Watts,
O'Neal, Chase, Baker, James Howard, and D. Johnson.
Minor, Niter, Taylor, Frazier, Scaife, L. Johnson, and
O'Neal were ready-mix drivers. Baker, James Howard,
and D. Johnson were block plant employees (and the
three least senior block plant employees); Pollion was a
warehouseman, and the record does not disclose the clas-
sification of Chase, Watts, and T. Johnson.
On April 25, Respondent laid off the following block
plant employees listed here in descending order of se-
niority: Teague, Hillard, Mitchell, Gross, Head, Stew-
art,2 Isom, Piyavunno, A. Haynes, Gilliam, M. Haynes, a
and John Howard.
On May 1, Teague, Hillard, and Mitchell were re-
called to the block plant and worked until May 8, when
they were again laid off. On May 16, Teague was re-
called, but not Hillard or Mitchell.4 In their place, Re-
spondent recalled Gross and Head. On May 18, Isom
was recalled to the block plant. No other recalls were
made to the block plant until March 20, 1979, when A.
2 Stewart is not listed on GC. Exh. 33: I rely on his testimony as to
his date of hire.
:' GC Fxh 33 lists MN Haynes immediately following A Ha.nes It
does not list an employee named Gilliam Nichols testified that Gilliam
followed A Haynes There is no need to resolre this conflict since nel-
ther M Haynes nor Gilliam was recalled
I II undisputed that Mitchell had a terminal illness at the time Pre-
sumahl the General Counsel concedes that Mitchell could not hac
worked een if he had been recalled because she makes no conlcntlonl on
behalf of Mitchell
1119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Haynes and John Howard were recalled. On the same
date James Howard was rehired.5 As noted, Piyavunno
had more seniority than any of these three; and Gilliam 6
and Melvin Haynes had seniority over both Howards;
and Baker had seniority over James Howard.
On November 8, ready-mix truckdriver Orlando Scaife
was recalled, but not Minor, Niter, Taylor, or Frazier
who had more seniority than Scaife.
To the General Counsel's objections to Respondent's
failure to follow strict seniority in the block plant, Re-
spondent replies that at most the General Counsel is stat-
ing a breach of contract, not a refusal to bargain in viola-
tion of Section 8(a)(5). Respondent further points out
that the contract provides that "seniority shall be based
on length of service and ability to perform the work."
Nichols testified that Respondent opened the block plant
on May I and recalled Teague, Hillard, and Mitchell in
accordance with strict seniority. Respondent tried to
combine jobs and get the three employees to produce
5,000 blocks per day but this did not work out because
Hillard could not perform more than one function. Spe-
cifically, Hillard had been a strapper and he could not
operate any machinery. When the plant reopened, Re-
spondent discontinued the practice of strapping blocks
before shipping. Gross, Head, and Isom could operate
forklifts and machinery that Hillard could not. Stewart
was a yardman and as such waited on customers. This
function was also discontinued. Piyavunno was a "cream
man," another function which was abolished. Alvin
Haynes was a "multi-talented" employee and could oper-
ate machinery and do cleanup and he was called before
Piyavunno and Stewart for this reason. Johnny Howard
was a machine operator and performed maintenance; he
was called before Gilliam, who had more seniority but,
according to Nichols, Gilliam "was working." 7 Nichols
did not say why James Howard was rehired over those
who were on layoff but he and Allen testitied generally
that all who were recalled could perform more than one
function and were more able to perform the work as Re-
spondent had restructured the block plant operation.
Those block plant employees who still had recall rights
when James Howard was rehired were John Williams
(who only did cleanup), Gilliam, Piyavunno, Stewart,
and Hillard.
The General Counsel introduced no evidence that Re-
spondent's general or specific assertions regarding rela-
tive abilities of employees who were recalled were incor-
rect. The General Counsel simply contends that Respon-
dent should have followed strict seniority in recalling its
employees and its failure to do so violated Section
8(a)(5) of the Act. I disagree. In N.L.R.B. v. Frontier
Homes Corporation, 371 F.2d 974 (8th Cir. 1967), the
Eighth Circuit enforced a Board finding that a failure to
s James Howard cannot be said to have been "recalled" because he
had been laid off for over 12 months and, under the contract, lost all se-
niority rights
' Actually, the General Counsel does not mention Gilliam, but since
the General Counsel is following strict seniority in all cases, and Nichols
admitted Gilliam's relative seniority status and that he was passed over,
this is an apparent oversight
I If this meant Gilliam was not offered recall rather than that he de-
clined recall because he wanted to continue working elsewhere, the Gen-
eral Counsel failed to develop the point
follow strict seniority and failure to bargain with the
union violated Section 8(a)(5). However, the holding was
premised on the facts that after expiration of a contract
which contained an ability clause such as found herein,
respondent unilaterally created a merit rating system and
recalled employees according to that system rather than
recall employees according to strict seniority which had
been its past practice during the term of the contract. In
enforcing the Board's Order the Eighth Circuit ob-
served:
Had the contract been in force at the time of the
layoff, Frontier would have been justified in follow-
ing its terms even though it differed from the past
practice. The right to consider ability (to some
extent) had already been given as the result of past
negotiations, so to the extent granted there would
have been no need to submit this issue to further ne-
gotiation. However, the fruit of these past negotia-
tions must end with the expiration of the contract.
Here the contract, with the ability clause, was in effect
at the time of the recalls and it plainly provided that
ability to perform work is a coequal consideration with
length of service, and there is no evidence that Respon-
dent chose employees for layoff or recall on a basis in-
consistent with the contract. But, even assuming that it
did, there is no evidence that Respondent in any way
was by its actions seeking to repudiate the contract. The
evidence is that Respondent first gave the most senior
block plant employees a chance to do the work; then,
when they did not work out on the restructured jobs,
Respondent chose among the laid-off employees on the
basis of ability for the jobs which then existed. Griev-
ances could have been, and were, filed over the selection
for recall. Respondent did not refuse to entertain any of
them. If Respondent's contractual interpretation was
wrong, the Union could have pressed the grievance to
arbitration. It did not. There is no evidence to cast suspi-
cion upon Respondent's contentions that its selection for
recall among the block plant employees was based upon
an apprisal of relative ability and a good faith interpreta-
tion of the contract, and not a repudiation of the con-
tractual seniority provision. Accordingly, I find that by
its selection of block plant employees for layoff on May
8 and recall on May 16 and thereafter, Respondent did
not violate Section 8(a)(5) of the Act.
In regard to the ready-mix truckdrivers, dispatcher
William Allen Martin testified that in February he laid
off drivers Minor, Niter, Taylor, Frazier, and Scaife.
Frazier testified that all prior recalls had been handled
by telephone. Martin testified that he did attempt to call
Minor but he was told by another employer that Minor
had another job and was not interested in coming back.
Martin accepted this. Martin testified that he attempted
to contact Niter by telephone but was unsuccessful. No
other attempt to recall Niter was made. Frank Taylor
was the next senior truckdriving employee, but Martin
made no attempt to contact him because, "I had neither
a telephone number or an address for him. In the past, he
had changed residences quite frequently. And based on
that, I didn't try to get in touch with him." Nor did
1120
AL-LEN MATERIALS, INC.
Martin attempt to call Frazier who was the next driver
in seniority after Taylor. Orlando Scaife was next after
Frazier. Martin telephoned Scaife and Scaife began
working on November 8.
The General Counsel contends that the failure to
tender offers of recall and failure to send offers of recall
by registered mail to the employees senior to Scaife were
violations of the contract and a violation of Section
8(a)(5). Respondent's defense is that its action in recalling
Scaife was, at most, a breach of contract, but not a viola-
tion of the Act.
The contract does not require recall by registered
mail. It states that "registered mail to the last known ad-
dress shall be accepted as proof of notice," but it does
not say that this is the only method of recall, and Re-
spondent's evidence that recalls were previously handled
orally was not rebutted by the General Counsel. But, as-
suming arguendo, that the failure to send registered let-
ters was a literal violation of the contract, the General
Counsel has nevertheless, failed to prove that Respon-
dent's action was a repudiation of the contractual agree-
ment or an attempt to undermine the Union and there-
fore has failed to prove a violation of Section 8(a)(5) of
the Act.
Moreover, Respondent's passing over Minor (as well
as Niter, Taylor, and Frazier) to recall Scaife also repre-
sents an apparent breach of contract, but not a violation
of the Act. The General Counsel offers no theory of
how the recall of Scaife could constitute an attempt to
undermine the Union or an attempt to repudiate a con-
tractual agreement regarding seniority. Thus, the Gener-
al Counsel is simply attempting to enforce a seniority
provision, and nothing more. The statutory machinery
created to prevent unfair labor practices is not a simple
substitute for the grievance and arbitration procedures
which the Union chose here not to invoke. That is, not
every breach of a collective-bargaining agreement is a
violation of the Act. I find that under the circumstances
herein, Respondent did not violate the Act in recalling
Scaife on November 10 rather than Minor, Niter, Taylor,
and Frazier who were senior to him.
D. Suspended Payments to Health and Welfare and
Pension Fund
The complaint alleges that since on or about March 1,
Respondent unilaterally "failed to make payments to its
employees' health and welfare and pension funds." As
noted, the contract provides for employer contribution
to the Union's health and welfare and pension plans on
behalf of the employees. Allen testified that at the
second February meeting, "they [the Union] were also
concerned about the payment of the health and welfare
and pension fund, and it was left that the two attorneys
would get back together and try to work out some sort
of settlement and repayment schedule on that." The only
evidence of "some sort of settlement" on this point is the
following testimony of Allen and the representation of
counsel:
Q. Do you know, of your own knowledge,
whether or not an agreement was reached with the
Central State's Health, Welfare, and Pension Plan of
the Teamsters, regarding settlement of their claim
for pension benefits?
A. Yes, sir.
Q. In the bankruptcy proceeding.
A. Yes, sir, there was one reached.
Q. Do you know whether or not, of your own
knowledge, if an order was entered with regard to
payment of any sums due for claims by Central
State's Pension Plan-
A. Yes, sir.
Q. -pursuant to the contract.
A. Yes, sir, there was one.
Q. Okay
JUDGE EVANS: Have you complied with that
order?
THE WITNESS: No, sir. We have not been able to
meet the financial commitments that were set forth
in it yet.
JUDGE EVANS: Do you have the date of that
order, counsel?
MR. DUNLAP: Your Honor, the date of that order
was in October of 1978.
JUDGE EVANS: Was that by the same District
Court in which the bankruptcy proceeding is being
entertained?
MR. DUNLAP: That's correct.
JUDGE EVANS: Thank you.
MR. DUNLAP: Basically, for the Court's own in-
formation, it provided for a payout over a period of
time to the Central State's Pension Plan, and we
were going to have to seek an amendment to that
order to make application for it with the consent to
the Central State's Pension Plan.
The bankruptcy court order incorporating the agreement
referred to was not placed in evidence. However, it is
clear that an agreement (subsequently made the subject
of a bankruptcy court order) for the benefit of the em-
ployees was reached by the processes of collective bar-
gaining; that Respondent has refused to abide by said
agreement for no reason other than alleged financial in-
ability; and that there is no evidence of union acquies-
cence in Respondent's failure to make the payment. In
these circumstances Respondent, has, in effect, repudiat-
ed its agreement made with the Union as representative
of the employees in the unit and Respondent thereby
violated Section 8(a)(5) of the Act. B. N. Beard Compa-
ny, 231 NLRB 191 (1977); Adams Iron Works. Inc., 221
NLRB 71 (1975); Oak Cliff-Goldman Baking Company,
207 NLRB 1063 (1973). Since the agreement itself is not
in evidence, the specific perimeters of Respondent's vioa-
tion of the Act in this regard cannot be determined here.
That determination may appropriately be made, and re-
medied, at the compliance stage of this case.
E. The 1978 Vacation Pay
The complaint alleges that Respondent has unilaterally
"failed to pay full amounts of vacation pay to its employ-
ees since on or about March 1, 1978."
In this regard Allen admitted that for the great major-
ity of its employees for whom vacation pay became due
1121
DECISIONS ()F NATIONAL L.ABOR RELATIONS O()ARD
in 1978, the employees did not receive such pay or, if
they were paid, it was after delay. Allen testified that in
the second February meeting Dunlap stated that those
individuals who felt they were entitled to vacations
should file with the bankruptcy court because the claims
would be treated either as "priority or administrative
type claim." Allen further testified that Crutcher or
Koelz replied that the Union would secure the appropri-
ate forms for filing such claims and assist the employees
in such attempts to get their vacation pay. On direct ex-
amination Crutcher testified that vacation pay, as well as
seniority, wages, and other matters were discussed at the
meeting, but "the only response that I got out of the
company was that they couldn't do nothing, because
they were tied up in the bankruptcy court." Koelz did
not deny agreeing to assist the employees in filing in the
bankruptcy court for their vacation pay which was then
due or soon to become due and he acknowledged that he
did assist some employees in filing such claims. Thus, the
issues becomes; did the Union, by agreeing to assist the
employees, consent to Respondent's failure or delay in
paying some of the 1978 vacations? I find that it did not.
Even as Allen related it, Dunlap presented the Union
with the accomplished fact that Respondent had no in-
tention of paying the 1978 vacation pay. While Dunlap
suggested a method by which the employees could re-
ceive their vacation pay, and the Union indicated that it
would attempt to assist the employees in such endeavor,
there is no evidence that the Union agreed to omitting or
delaying the 1978 vacation pay for any employee.
Respondent's referrals of the employees and their rep-
resentative to the bankruptcy court was a disavowal of
any responsibility for paying the vacation pay, not a
good-faith interpretation of the contract. In these circum-
stances, Respondent's delay or refusal to pay 1978 vaca-
tion pay constitutes a unilateral modification of the con-
tractual obligation which is not excused by inability to
pay8 and is thus a violation of Section 8(a)(5) of the
Act.' Again, the names of the employees whose 1978 va-
cation pay was delayed or denied may properly be deter-
mined at the compliance stage this case.
Upon the foregoing findings of fact and upon the
entire record and pursuant to Section 10(c) of the Act, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is 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.
3. The following constitutes a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees at the
place of business of the employer at 1572 Chelsea.
H Oak Clijf-Goldman Baking Company, upra.
9 In effect, in delaying or refusing to pay tihe 1978 vacation pay. Re-
spontdent is attempting to take advantage of an order disaffirming a col-
lective-bargaining agreement which was not only not granted, it was niot
even sought See Oxford Structures. Ltd. Dehbor-in-Porsesion, 245 NLRB
1180 (1979).
Memphis, Tennessee, excluding all office clerical
employees, professional employees, technical em-
ployees, watchmen, guards and supervisors as de-
fined in the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in
the aforesaid unit within the meaning of Section 9(a) of
the Act.
5. By unilaterally delaying or denying vacation pay to
employees in the aforesaid unit during the term of its
collective-bargaining contract with the Union, Respon-
dent has engaged, and is engaging, in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of the
Act.
6. By refusing to honor and comply with the terms of
the collective-bargaining agreement reached with the
Union regarding a schedule of payments to Central
States, Southeast and Southwest Area Health and Wel-
fare Fund and the Central States, Southeast and South-
west Area Pension Fund of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, Respondent has violated Section 8(a)(5)
and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. Respondent has not engaged in unfair labor prac-
tices insofar as the complaint alleges violations of the
Act not specifically found herein.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the purposes of the Act, including
the posting of the notice attached to this Decision.
Since Respondent, in derogation of its statutory obliga-
tion, unilaterally delayed or denied vacation pay of its
employees during the term of the collective-bargaining
contract covering the employees involved, I recommend
that Respondent be directed specifically to refrain from
making unilateral changes in wages, rates of pay, or
other terms and conditions of employment of its employ-
ees in the above-described appropriate unit during the
term of the contract without first reaching agreement
with the Union concerning such contemplated changes.
Further, I recommend that the Respondent make whole
the employees in the above-described appropriate unit,
and make whole the respective union health and welfare
and pension funds, for anyt' losses they may have suf-
fered as a result of the unfair labor practices found
herein, with interest thereon. Florida Steel Corporation,
231 NLRB 651 (1977). See, generally, Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
'o he Saloon, Inc, 247 NLRB No 156 (1980)
I 11 22
ALLEN MA I RIAI.S, INC.
ORDER''
The Respondent, Allen Materials, Inc., Debtor-in-Pos-
session, Allen Materials, Inc., and its officers, agents. suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with General Drivers, Sales-
men and Warehousemen Local 984, an affiliate of the In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America as the exclusive repre-
sentative of its employees in the following appropriate
bargaining unit:
All production and maintenance employees at the
place of business of the employer at 1572 Chelsea,
Memphis, Tennessee, excluding all office clerical
employees, professional employees, technical em-
ployees, watchmen, guards and supervisors as de-
fined in the Act.
(b) Repudiating or reneging on agreements made with
the Union through the process of collective bargaining
for the benefit of employees in the appropriate unit, in-
cluding specifically agreements regarding contributions
due the Central States, Southeast and Southwest Area
Health and Welfare Fund and Pension Fund of the Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America.
(c) Instituting changes in vacation pay or other rates
of pay, or other terms and conditions of employment of
its employees in the above-described appropriate unit
during the effective term of any contract covering said
employees without first consulting with and bargaining
with the Union concerning such changes and reaching
agreement on any modification of the terms of such con-
tract.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights set forth in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
I' In the event no exceptions are filed as provided by Sec. 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as prosided
in Sec. 102 48 of the Rules and Regulations, be adopted bh he Board and
become its findings, conclusions, and Order, and all objections thereto
shall he deemed waived for all purposes
(a) Make whole the employees in the appropriate unit
by paying to them, with interest, all monies they would
have received as vacation pay for the year 1978 which
was either delayed or denied.
(b) Make whole the employees in the appropriate unit
by paying all health and welfare contributions and pen-
sion fund contributions as required by the bargaining
contract which was effective for March 1, 1977. to
March 1, 1980, as modified by subsequent agreement
with the Union and as required by any succeeding col-
lective-bargaining agreement, with interest, to the extent
that such contributions have not been made or that the
employees have not otherwise been made whole for
benefits lost and their ensuing expenses which would
have been covered by said health and welfare plans. This
shall include reimbursing employees' contributions that
they themselves may have made for the maintenance of
the Union's pension and/or welfare coverage after Re-
spondent unlawfully ceased contributing, for any premi-
ums they may have paid to the third party insurance
companies for health and welfare coverage, and for any
medical or dental bills employees may have paid directly
to health care providers that the contractual policies
would have covered.
(c) Preserve and, upon request, make available, to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amounts of backpay and
benefits going under the terms of this Order.
(d) Post at its Memphis, Tennessee, facility copies of
the attached notice marked "Appendix." 12 Copies ot said
notice, on forms furnished by the Regional Director for
Region 26, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
'2 In the event that this Order is enfoirced by a Judgment f a U'nted
States Court of Appeals the ords in the notice reading ',lted h
Order of the National l.abor Relations Board" shall read "'Posted Pursu-
ant to a Judgment of the United States Court of Appeals Fllorcing an
Order of the National I.abor Relations Board
I 1 13