Associated Milk Producers

National Labor Relations Board - Board Decisions

Oct 24, 1990

300 N.L.R.B. 561 (N.L.R.B. 1990)

561
300 NLRB No. 55
ASSOCIATED MILK PRODUCERS
1 On November 1, 1987, the Teamsters International Union was readmitted
to the AFL–CIO. The caption has been amended to reflect that change.
Associated Milk Producers, Inc. and Truck Drivers,
Chauffeurs, Warehousemen and Helpers, Local
Union No. 941, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO.1 Case 28–CA–
7857
October 24, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On a charge filed by the Union on July 17, 1984,
the General Counsel of the National Labor Relations
Board issued a complaint on August 22, 1984, against
the Respondent, Associated Milk Producers, Inc., al-
leging that the Respondent violated Section 8(a)(5) and
(1) of the National Labor Relations Act. The Respond-
ent filed a timely answer, admitting in part and deny-
ing in part the allegations of the complaint.
The complaint alleges that about July 5, 1984, the
Respondent failed and refused to bargain with the
Union as the exclusive collective-bargaining represent-
ative of the unit by ceasing to make its contributions
to the Central States, Southeast and Southwest Areas
Pension Fund (Pension Fund), as provided for in the
most recently expired collective-bargaining agreement.
The Respondent engaged in this conduct unilaterally
and without the agreement, consent, or acquiescence of
the Union.
On October 9, 1984, the parties jointly moved the
Board to transfer the proceedings to the Board, without
benefit of a hearing before an administrative law
judge, and submitted a proposed record consisting of
the formal papers and the parties’ stipulation of facts
with attached exhibits. On January 7, 1985, the Execu-
tive Secretary, by direction of the Board, issued an
order granting the motion, approving the stipulation,
and transferring the proceedings to the Board. There-
after, on March 11, 1985, the General Counsel filed a
brief. On March 12, 1985, the Respondent filed a brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in the case, the Board makes
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Associated Milk Producers, Inc., a
Kansas corporation, with an office and place of busi-
ness in El Paso, Texas, is engaged in the business of
marketing milk. In the course and conduct of its busi-
ness operations in Texas, the Respondent, in a period
representative of its operations at all times, purchased
and received products, goods, and materials valued in
excess of $50,000 directly from places outside the
State of Texas. During the same period, the Respond-
ent sold and shipped from its El Paso facility products,
goods, and materials valued in excess of $50,000 di-
rectly to points outside the State of Texas. We find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7)
of the Act. We further find that the Union, Truck Driv-
ers, Chauffeurs, Warehousemen and Helpers Local
Union No. 941, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
The issue presented is whether the Respondent has
violated Section 8(a)(5) and (1) of the Act by unilater-
ally ceasing to make its contributions to the Pension
Fund, as provided for in the parties’ most recently ex-
pired collective-bargaining agreement.
A. Facts
On October 3, 1979, the Union was certified as the
collective-bargaining representative of a bargaining
unit of truck drivers, helpers, maintenance men, and
lab technicians. The latest collective-bargaining agree-
ment between the Respondent and the Union was ef-
fective from October 7, 1983, through May 3, 1984.
Article 23 of the agreement provided that the Respond-
ent would make certain contributions to the Pension
Fund.
On February 27, 1984, the Union sent the Respond-
ent a letter requesting modification of the agreement.
On March 2, 1984, a decertification petition was filed
in Case 28–RD–466. On March 8, 1984, the Respond-
ent sent the Union a letter acknowledging receipt of its
February 27 letter and confirming the Respondent and
the Union’s agreement to hold contract negotiations in
abeyance pending disposition of the representation
matter. On March 9, 1984, the Respondent and the
Union executed a Stipulation for Certification Upon
Consent Election.
The first decertification election was held on April
5, 1984; there were 13 votes cast for the Union, 14
cast against the Union, with no challenged ballots. On
April 12, 1984, the Union filed objections to the elec-
tion. On May 11, 1984, the hearing officer rec-
ommended that the election be set aside and a new
election be held.
The parties’ collective-bargaining agreement expired
on May 3, 1984. The Respondent made all pension
fund payments due to the Pension Fund for May 1984,
and all preceding months. Following the expiration of
562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In support, the General Counsel cites Dow Chemical Co., 250 NLRB 756
(1980), enf. denied 660 F.2d 637 (5th Cir. 1981), and Presbyterian Hospital,
241 NLRB 996 (1979).
the agreement, the Respondent ceased making pension
fund payments. On July 5, 1984, the Respondent sent
the Union a letter in which it stated that it did ‘‘not
intend to continue to make contributions to the Central
States, Southeast and Southwest Areas Pension Fund.’’
The Respondent did not make the pension fund con-
tribution for the month of June, which was due about
July 15, 1984. On July 17, 1984, the Union filed a
charge with the Regional Office alleging an 8(a)(5)
violation.
On August 1, 1984, the Union sent the Respondent
a letter indicating that it had filed a charge with the
Board. On September 18, 1984, the Board adopted the
hearing officer’s recommendation that the election be
set aside, and ordered a second election. The second
decertification election was held on October 18, 1984.
There were 14 votes cast for the Union, 16 against,
with no challenged ballots or objections. A Certifi-
cation of Results issued on October 26, 1984.
B. Contentions of the Parties
1. General Counsel’s contentions
The General Counsel contends that the Respondent
violated Section 8(a)(5) and (1) of the Act by unilater-
ally discontinuing pension fund contributions from
June 1 to October 26, 1984. The General Counsel
notes that although an employer’s contractual obliga-
tions cease with the expiration of the contract, the
terms and conditions of employment established by the
contract and terms governing the employer-employee
relationship survive contract expiration. Fringe benefit
contributions, such as contractually established pension
fund payments, are a term and condition of employ-
ment which survive contract expiration. The General
Counsel contends, therefore, that the Respondent could
not cease making pension fund contributions to the
Pension Fund, in the absence of a union waiver, a
good-faith impasse, or the Union’s loss of majority sta-
tus.
The General Counsel argues that the unfair labor
practice arose when the Respondent, within 10 days of
its July 5, 1984 proposal, implemented the proposal
without providing the Union an effective opportunity
to bargain over the unilateral change.
Although the Union did not respond to the July 5
letter until August 1, 1984, the General Counsel asserts
that this is not evidence of waiver by the Union in
light of the Union’s having filed an unfair practice
charge on July 17, immediately after the due date for
the June pension contributions.
The General Counsel also argues that there can be
no claim of a good-faith bargaining impasse because
there was no bargaining over the discontinuation of the
pension fund payments. The General Counsel contends
that the Respondent could not have believed that the
matter could be effectively negotiated within the short
time between the day the July 5 letter was received by
the Union and July 15, the last day on which the June
pension fund contributions could be timely paid.
According to the General Counsel, following the ex-
piration of its collective-bargaining agreement, the
Union enjoyed a rebuttable presumption of majority
support. The General Counsel argues that the Respond-
ent has not sustained its burden of proving any actual
loss of majority status by the Union or that the Re-
spondent had a good-faith belief, based on objective
considerations, of the Union’s loss of majority status
prior to Respondent’s July 15 commencement of the
unilateral change. The General Counsel maintains that
neither the filing of the March 2 decertification petition
nor the results of the April 5 decertification election is
sufficient to rebut the Union’s presumption of majority
support.
The General Counsel argues that postelection unilat-
eral changes made prior to a Board certification are
unfair labor practices.2 The General Counsel states that
a finding of no unfair labor practice based on subse-
quent election results could reward and encourage em-
ployers to risk engaging in unilateral changes that
could affect the election process. The General Counsel
requests a make-whole remedy from June 1, 1984, the
first month in which the Respondent did not make its
pension fund contribution, to October 26, 1984, the
date the Certification of Results issued.
2. Respondent’s contentions
The Respondent agrees with the General Counsel
that pension fund plans are an aspect of an employee’s
terms and conditions of employment that survive the
expiration of the collective-bargaining agreement. The
Respondent further agrees that an employer may not
unilaterally alter its payments into those plans unless
(1) the change has been made subsequent to a bar-
gaining impasse and the union has rejected the change
prior to the impasse, or (2) the union does not rep-
resent a majority of the unit employees, or the em-
ployer has a good-faith doubt, based on objective con-
siderations, of the union’s continuing majority status,
or (3) the union has waived its right to bargain regard-
ing the change.
The Respondent maintains that the Union waived its
right to protest the discontinuation of the payments be-
cause it waited 3 weeks after the notification of the in-
tended discontinuation to respond to the Respondent’s
letter. Further, the Respondent observes that the
Union’s response was that the Respondent’s change
was illegal, which was not an outright objection to the
change.
563ASSOCIATED MILK PRODUCERS
3 In support, the Respondent cites Mike O’Connor Chevrolet, 209 NLRB
701 (1974), enf. denied on other grounds 512 F.2d 684 (8th Cir. 1975).
4 As noted, the parties’ collective-bargaining agreement expired at midnight
on May 3, 1984, and the parties had agreed to postpone negotiations for a
successor agreement pending disposition of the representation matter.
5 See, e.g., Owens-Corning Fiberglas Corp., 282 NLRB 609 fn. 1 (1987).
6 In Gibbs & Cox, an employer gave a union approximately 2 weeks’ notice
that it intended to discontinue payments to a major medical plan. Thereafter,
the union failed to request bargaining and the changes were implemented.
Based thereon, the Board concluded that the union had waived its right to bar-
gain.
Similarly, in Citizens National Bank, an employer announced to union rep-
resentatives and employees that it would be changing work schedules about
a week later. Finding that the union had failed to request bargaining about the
change, the Board concluded that the employer had not violated Sec. 8(a)(5)
of the Act.
7 In the letter, Union President and Business Manager Diaz stated that he
had twice attempted to contact the Respondent to discuss the contributions to
the Pension Fund, and that one of the attempted contacts was on August 1.
This assertion regarding unsuccessful attempts to contact the Respondent, how-
ever, falls far short of establishing that Union had requested, or was request-
ing, bargaining about discontinuing payments to the Pension Fund.
8 As noted, the charge was filed on July 17.
The Respondent also maintains that on July 15, be-
cause of the results of the decertification election, it
‘‘knew for certain’’ that the Union no longer enjoyed
majority support in the unit. The Respondent maintains
that it had a good-faith doubt, based on objective con-
siderations, of the Union’s continued majority support.
The Respondent states that the Board has a rule that
in the absence of compelling economic considerations
for doing so, an employer acts at its peril in making
a change in terms and conditions of employment dur-
ing the period that objections to an election are pend-
ing and the final determination has not been made.3
The Respondent argues that it ‘‘acted at its peril’’
when it made the change, during the postelection/pre-
certification period, but that the Board only finds a
violation when a certification of representative issues,
not as in this case, when a certification of results
issues. The Respondent argues that it acted at its peril
in making the change, but that there was no violation
because the Union lost the second decertification elec-
tion. The Respondent thus contends that it did not vio-
late the Act.
C. Discussion
The complaint alleges that the Respondent violated
Section 8(a)(5) and (1) of the Act by making a unilat-
eral change in the employees’ terms and conditions of
employment. Both parties have stipulated that the Re-
spondent ceased making pension fund contributions
and that the contributions were a term and condition
of employment that survived the expiration of the col-
lective-bargaining agreement. The General Counsel
contends that the Respondent’s change violated the
Act. The Respondent contends that its action was law-
ful. We agree with the Respondent that the cessation
of pension fund contributions did not violate the Act
for the following reasons.
We find, as contended by the Respondent, that the
Union waived its right to bargain over the cessation of
payments. Here, at times material, the parties’ collec-
tive-bargaining agreement had expired.4 In that cir-
cumstance, an employer’s obligation, prior to making
a change in the terms and conditions of employment,
is to give notice of its planned change and afford a
reasonable opportunity for bargaining.5 If an employer
meets its obligation and the union fails to request bar-
gaining, the union will have waived its right to bargain
over the matter in question. Gibbs & Cox, Inc., 292
NLRB 757 (1989); Citizens National Bank of Willmar,
245 NLRB 389 (1979).6
Here, the Respondent, by letter dated July 5, 1984,
notified the Union that it did not intend to continue its
contributions to the Pension Fund. The Respondent’s
next payment was due on or about July 15. The Re-
spondent concluded its letter by stating: ‘‘[i]f you have
any questions concerning our proposal or in any man-
ner care to discuss this matter with me [Respondent’s
attorney], please feel free to call me.’’
Despite being notified beforehand of the Respond-
ent’s intended change, the Union failed to request bar-
gaining—both before and after the Respondent imple-
mented the change. Consistent with its announcement
to the Union, the Respondent did not make a pension
fund payment in July. The Union did not communicate
with the Respondent until August. In its letter dated
August 1 to the Respondent, the Union did not request
bargaining.7 Rather, the Union stated that its position
was that discontinuing the contributions ‘‘would be il-
legal.’’ The letter further stated that the Union had
filed unfair labor practice charges regarding the mat-
ter.8
The Union’s filing an unfair labor practice charge
did not relieve it of its obligation to request that the
Respondent bargain over the proposed change. In Citi-
zens National Bank, supra, 245 NLRB 389–390, the
Board stated:
It is well established that it is incumbent upon
a union which has notice of an employer’s pro-
posed change in terms and conditions of employ-
ment to timely request bargaining in order to pre-
serve its right to bargain on that subject. The
union cannot be content with merely protesting
the action or filing an unfair labor practice charge
over the matter. [Fns. omitted.]
564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 WPIX, Inc., 299 NLRB 525 (1990) a Board majority concluded that an
employer did not violate Sec. 8(a)(5) by unilaterally implementing a change
in its mileage-reimbursement rate. The employer announced its intention about
3 weeks prior to the change. Although the union learned of the intended
change, it failed to request bargaining. After the employer implemented the
change, the union filed an unfair labor practice charge. Nonetheless, the Board
concluded that the union had failed to request bargaining and thus acquiesced
in the employer’s change.
Chairman Stephens dissented in WPIX, and he adheres to his dissent. In
WPIX, the Chairman concluded that the union could properly view the em-
ployer’s announced change as a fait accompli. The Chairman relied on several
factors, most notably that the employer did not inform the union of its inten-
tions but rather announced its change directly to the employees. In WPIX, the
union learned of the intended change only through fortuitous circumstances.
Here, the Chairman notes, unlike in WPIX, the Respondent communicated di-
rectly with the Union prior to making the change.
10 Having found that the Union waived the right to bargain, we need not
decide whether the Respondent was privileged to make its unilateral change
because of the results of the decertification elections in Case 28–RD–466.
Thus, it was incumbent on the Union to request bar-
gaining—not merely to protest or file an unfair labor
practice charge.9
We find that the Union waived its right to bargain
about the cessation of the payments to the Pension
Fund by failing to request bargaining after it was in-
formed by the Respondent of the intended change.10
Accordingly, we shall dismiss the complaint.
ORDER
The complaint is dismissed.