Brower'S Moving & Storage, Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1989

297 N.L.R.B. 207 (N.L.R.B. 1989)

BROWER'S MOVING & STORAGE 207
Brower's Moving & Storage, Inc. and Local 814,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
AFL-CIO. Case 29-CA-13733
November 8, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On April 11, 1989, Administrative Law Judge
Joel P Biblowitz issued the attached decision The
Respondent and the Acting General Counsel filed
exceptions and supporting briefs, and the Respond-
ent filed an answering brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions only to the extent consistent with this
Decision and Order
The complaint alleged that the Respondent vio-
lated Section 8(a)(5) and ,(1) by repudiating and
failing to honor the terms of its collective-bargain-
ing agreement with the Union and by failing to
make the required contributions to the Teamsters
Local 814 Welfare, Pension and Annuity Funds
(the Funds), covering the employees in the follow-
ing appropriate unit
All chauffeurs, warehousemen, packers, hi-low
operators, checkers and helpers employed at
the Respondent's warehouse, excluding guards
and supervisors as defined in Section 2(11) of
the Act
The judge dismissed the complaint Relying pri-
marily on Ace-Doran Hauling & Rigging Co 2 and
McDonald's Drive-In Restaurant, 3 the judge found
that the collective-bargaining agreement between
the parties did not give rise to a presumption of
majonty status He concluded that the agreement
'We shall set forth the facts that the judge failed to mention, which
support asserting jurisdiction over the Respondent The Respondent, a
New York corporation with an office and place of business at its ware-
house located at 18 Avenue A, Port Washington, New York, is engaged
in the warehousing, moving, and storage of household and commercial
furniture and other items The Respondent, during the 12-month period
ending November 30, 1988, which is a representative period, in the
course and conduct of its business had gross revenues in excess of
$500,000 During the same 12-month period, the Respondent purchased
and received at its warehouse goods and material valued in excess of
$50,000 directly from sources located outside the State of New York We
find that the Respondent is an employer engaged in commerce within the
meaning of Sec 2(6) and (7) of the Act and that the Union is a labor
organization within the meaning of Sec 2(5) of the Act
3 171 NLRB 645 (1968)
3 204 NLRB 299 (1973) The judge also cited Weber's Bakery, 211
NLRB 1(1974), and Bender Ship Repair Co, 188 NLRB 615 (1971)
was invalid because the parties' practice under the
agreement demonstrated that they did not intend to
establish a valid collective-bargaining relationship
We disagree with the judge's failure to find a viola-
tion for the following reasons
The Respondent recognized the Union in 1951
after it demanded recognition The Respondent
admits signing successive collective-bargaining
agreements over the years, although there were
never any individual negotiations Most recently,
the Respondent agreed to be bound by the 1986 to
1989 collective-bargaining agreement between the
Union and an employer association of which the
Respondent is not a member The agreement states
that it covers employees classified as chauffeurs,
warehousemen, packers, hi-low operators, check-
ers, and helpers Although the Respondent has
never established the specific job classifications de-
scribed in the contract, it has employees who per-
form many of the functions included in those classi-
fications
It is undisputed that over the years the Respond-
ent failed to honor and abide by the wage, holiday,
vacation, union-security, and other provisions of
the successive agreements There is no affirmative
evidence that the Union was aware of these lapses
other than failure to pay into the Funds until the
instant unfair labor practice charge was filed From
1951 to 1954 a union representative visited the Re-
spondent's facility on a monthly basis to collect
dues No grievances were ever filed and no stew-
ard was appointed, and after 1954 no union repre-
sentative visited the Respondent's facility
Over the years the Union's Funds sent the Re-
spondent monthly contribution remittance reports
Until 1968 the Respondent made fund contnbutions
only on behalf of a few family members employed
by the Respondent, despite the fact that the Re-
spondent employed other individuals in the unit de-
scribed in the contract The Respondent had con-
tributed to the Funds on behalf of Wesley Brower
until 1956 when the Union informed him that, be-
cause he was an owner of the Respondent, he
could not work on trucks with members of the bar-
gaining unit
In 1968, the Respondent contacted the Union
about getting an employee "set up" with hospitali-
zation coverage and other benefits In March 1982
the Respondent paid the back dues and fund contri-
butions that the Union required in order for the
employee to be eligible The parties settled a 1981
suit brought by the trustees of the Funds for delin-
quent contributions for the period July 1975 to Jan-
uary 1981 In September 1987, the Respondent
ceased making any fund contributions In Decem-
ber 1987, the Funds conducted an audit of the Re-
297 NLRB No 28
208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent's payroll records and found a sizeable de-
linquency in contributions due from April 1983
through September 1987 The Funds regularly sent
past due notices to the Respondent on a monthly
basis showing delinquencies dating back to 1981
The Respondent did not respond to bills for the de-
linquency, and the Funds filed suit
By letter dated October 14, 1983, the Union re-
quested all employers with collective-bargaining
agreements, including the Respondent, to submit an
updated seniority list This request was made pur-
suant to a provision of the collective-bargaining
agreement The Respondent replied by sending the
Union a letter listing some family members who
worked for it At that time the Respondent also re-
quested that the Union provide it with the dates of
entry and years of credit for the few family mem-
bers that the Respondent had listed in its response
The Union responded by submitting this informa-
tion to the Respondent It appears that the Re-
spondent, in actuality, employed more unit employ-
ees than those listed in its response and never in-
formed the Union of the existence of these addi-
tional employees On October 11, 1988, the Union
filed the charge herein
We find that since 1951, the Union has been the
designated exclusive collective-bargaining repre-
sentative of the employees in the unit described in
the complaint, which we find appropriate for col-
lective bargaining, and that the Union has been
recognized as such by the Respondent Since 1951
such recognition has been embodied in successive
collective-bargaining agreements between the Re-
spondent and the Union, the most recent of which
is effective by its terms for the period April 1,
1986, to March 31, 1989 The Respondent has repu-
diated and, by its own admission, failed to honor
and abide by the wage, vacation, holiday, union-se-
curity, and other provisions of its agreement with
the Union We find that, since April 11, 1988, by
this conduct, the Respondent has violated Section
8(a)(5) and (1) of the Act We further find that the
Respondent has since April 11, 1988, violated Sec-
tion 8(a)(5) and (1) by failing to make the contrac-
tually required contributions to the Union's
Funds 4
We reject the Respondent's contention and the
judge's finding that there is no valid collective-bar-
gaining agreement and that the Union was not sup-
ported by a majority of the employees in an appro-
priate unit We find that the cases relied on by the
judge are distinguishable As the judge noted, it is
well established in Board law that an incumbent
union generally enjoys a presumption of continued
4 Mr Clean of Nevada, 288 NLRB 895 (1988)
majority status during the term of a collective-bar-
gaining agreement In Ace-Doran Hauling & Rig-
ging Go, supra, the Board found a narrow excep-
tion to that general rule when two factors under-
mined the validity of the contract and the presump-
tion of majority status First, the Board found that
the unit was not defined with sufficient clanty "to
warrant a finding that the contracts are ones to
which a presumption of majority status can
attach " 5 Second, the Board found that both par-
ties' practice under the agreements showed that the
parties did not intend them to be effective collec-
tive-bargaining agreements, but merely arrange-
ments to check off dues and to procure benefits for
union members only 6 Similarly, in Bender Ship
Repair Go, supra, the Board found a "patent ambi-
guity" in the contractual unit definition and that
the union acquiesced in the application of the con-
tract to only a few favored employees 8 In McDon-
ald's Drive-In Restaurant, supra, 9 the Board adopt-
ed the judge's finding that the unit purported to be
covered by the contract was ambiguous and that
the union never bothered to enforce its contract 10
The aforementioned cases are distinguishable be-
cause the collective-bargaining agreement in this
case suffers from no such infirmities It clearly
specifies the unit, and the judge specifically found
it was not a "members only" contract In addition,
the Union has clearly taken affirmative steps to en-
force its contract over the years When the con-
tract was first signed, a union representative went
to the facility to sign up employees and thereafter
visited monthly for 3 years to collect dues In 1956
the Union sought to stop the Respondent's owner,
Wesley Brower, from performing unit work In
1968 the Union responded to the Respondent's re-
quest to sign up one of its employees and required
that the Respondent comply with the contract by
paying back dues and _benefit contributions to the
employee's date of hire In 1983, the Union re-
quested that the Respondent submit an updated se-
niority list Moreover, the activity of the Funds in
filing suit in 1981 and in auditing the Respondent's
books and records in 1987 and instituting another
suit for the delinquencies discovered is consistent
5 171 NLRB at 645
'Id at 646
7 188 NLRB at 615
8 Id at 616
9 204 NLRB 299, 309 (1973)
'° The judge also cited Weber s Bakery, supra In that case the Board
adopted the judge's finding that, although the unit definition in the con-
tract was adequate to support the contract's validity, the parties' practice
under the agreement showed that they did not intend a real collective-
bargaining relationship and, therefore, the presumption of majority status
did not attach The judge in Webers Bakery found that the contract was
a sham and that the union acquiesced in, at most, token compliance with
the contract 211 NLRB at 12
BROWER'S MOVING & STORAGE 209
with a finding that there was in existence a valid
enforceable collective-bargaining agreement be-
tween the parties,
While no steward was appointed and no griev-
ances filed, the Respondent admitted it never told
its unit employees they were represented by the
Union or that there was an applicable contract
Therefore, the employees were denied the knowl-
edge necessary to seek assistance from the Union
And, as discussed earlier, the Union was also
denied knowledge concerning the unit employees
when it asked for it The Union filed the charge
herein in October 1988 and has actively pursued it
Thus, we find that there is no evidence that the
Union ever acquiesced in a repudiation of substan-
tial portions of the contract or that the Union and
the Respondent ever had an arrangement or under-
standing that would negate an intent to enter into a
valid collective-bargaining relationship "
Accordingly, we find that the 1986-1989 con-
tract is valid and gives nse to an irrebutable pre-
sumption of majority status and that the Union has
not abandoned its administration of the contract
We further find that the Respondent has violated
Section 8(a)(5) and (1) of the Act by repudiating
and failing to comply with the contract's terms and
by failing to make the required Fund contribu-
tions 12
" KBMS, Inc , 278 NLRB 826, 846 (1986)
We note that the Respondent itself has engaged in conduct that is in-
consistent with its position that there is no valid contract It has signed
successive agreements over a penod of 36 years and paid dues and made
benefit contnbutions pursuant to those collective-bargaining agreements
for several employees over a substantial part of that time In 1968 the
Respondent called on the Union to sign up an employee so he could re-
ceive union benefits, and it complied with the Union's requirement to pay
back dues and benefits for that employee so that employee would be eli-
gible
We also reject the Respondent's contention that the contract is not
valid because the Union lacked majority status at the time of the initial
recognition in 1951 The Board has held
[Mil employer may not defend against a refusal-to-bargain allegation
on the basis that the original recognition, occurring more than 6
months before charges had been filed in the proceeding raising the
issue, was unlawful Any such defense is barred by Section 10(b) of
the Act
Morse Shoe, Inc , 227 NLRB 391, 394 (1976), and the cases cited there-
in Mr Clean of Nevada, supra Even if the initial recognition in 1951
were flawed, it is outside the 10(b) period, and the Respondent is pre-
cluded from attacking the current contract on that basis
12 Mr Clean of Nevada, supra, KBMS, Inc. supra, Pioneer Inn & Pio-
neer Inn Casino, 228 NLRB 1263 (1977), enfd 578 F 2d 835 (9th Cir
1978)
We reject the Respondent's contention and the judge's finding that the
Union has abandoned the contract and the unit As the Board stated in
Pioneer Inn, supra at 1264
illhe lack of any basis for finding the contract to be invalid calls
into effect the long-established Board presumption of the Union's
majonty status during the term of the contract, irrespective of the
degree to which the Union may or may not have been deficient in
the administration of that agreement
To preserve the validity of a contract for contract bar purposes, a recog-
nized union need only show that it is willing and able to represent the
covered employees at the time its status is called Into question Loree
Footwear Corp, 197 NLRB 360 (1972), Road Materials, 193 NLRB 990,
CONCLUSIONS OF LAW
1 Brower's Moving & Storage, Inc is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act
3 The Union is the exclusive collective-bargain-
ing representative of the employees in the follow-
ing appropriate unit
All chauffeurs, warehousemen, packers, hi-low
operators, checkers and helpers employed by
Brower's Moving & Storage, Inc , at its Port
Washington, New York facility, excluding
guards and supervisors as defined in the Act
4 Since April 11, 1988, the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by repudi-
ating and failing to honor or abide by the terms of
its collective-bargaining agreement with the Union,
and by failing to make the required Fund contribu-
tions
5 The above-described violations of the Act
constitute unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7)
of the Act
THE REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act
Specifically, we shall order the Respondent to
honor and abide by the terms of its collective-bar-
gaining agreement with the Union, to make the
unit employees whole for any losses they may have
suffered because of the Respondent's failure to
abide by the terms of the agreement, for the period
beginning April 11, 1988, to be computed in the
manner set forth in Ogle Protection Service, 183
NLRB 682 (1970), plus interest to be computed in
the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), and to remit the
contributions required by the agreement for the
period beginning Apnl 11, 1988, to the Union's
Funds, with interest to be computed according to
the practice set forth in Merryweather Optical Go,
240 NLRB 1213, 1216 fn 7 (1979) The Respond-
ent shall also reimburse its employees for any ex-
penses ensuing from its failure to make contribu-
tions to the Funds, as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn 2 (1980), enfd mem
661 F 2d 940 (9th Cir 1981)
991 (1971) There is no evidence that the Union is either unwilling or
unable to represent the Respondent's employees covered by the contract
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board orders that
the Respondent, Brower's Moving & Storage, Inc ,
Port Washington, New York, its officers, agents,
successors, and assigns, shall
1 Cease and desist from
(a) Repudiating and failing to honor and abide
by the terms of its collective-bargaining agreement
with the Union covering the employees in the fol-
lowing unit
All chauffeurs, warehousemen, packers, hi-low
operators, checkers and helpers employed by
Brower's Moving & Storage, Inc , at its Port
Washington, New York facility, excluding
guards and supervisors as defined in the Act
(b) Failing to make pension, welfare, and annuity
fund contributions as required by its collective-bar-
gaining agreement with the Union for the unit em-
ployees described above
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Honor and abide by the terms of its collec-
tive-bargaining agreement with the Union
(b) Make whole all unit employees for any losses
they may have suffered as a result of the Respond-
ent's refusal to honor the terms of its collective-
bargaining agreement for the period beginning
April 11, 1988, in the manner described in the
remedy section of this decision
(c) Make whole the Union's Funds for any pay-
ments the Respondent failed to make for the period
beginning April 11, 1988, in the manner described
in the remedy section of this decision
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of reimbursements due
(e) Post at its Port Washington, New York facili-
ty copies of the attached notice marked "Appen-
dix " 13 Copies of the notice, on forms provided by
the Regional Director for Region 29, after being
signed by the Respondent's representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
' 3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading Posted by Order of the Nation-
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board'
conspicuous places including all places where no-
tices to employees are customarily posted Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT repudiate or fail to honor and
abide by the terms of our collective-bargaining
agreement with Local 814, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO covering the em-
ployees in the following unit
All chauffeurs, warehousemen, packers, hi-low
operators, checkers and helpers employed by
Brower's Moving & Storage, Inc, at our Port
Washington, New York facility, excluding
guards and supervisors as defined in the Act
WE WILL NOT fail to make pension, welfare, and
annuity fund contributions as required by our col-
lective-bargaining agreement with the Union for
the employees described above
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL honor and abide by the terms of our
collective-bargaining agreement with the Union
WE WILL make whole all unit employees for any
losses they may have suffered as a result of our re-
fusal to honor the terms of our collective-bargain-
ing agreement from April 11, 1988, with interest
WE WILL make whole the Union's Funds for any
payments we failed to make from April 11, 1988,
with interest
BROWER'S MOVING & STORAGE, INC
Carol L O'Rourke, Esq and James J Paulsen Esq , for
the General Counsel
Robert S Nayberg, Esq and Robert A Ivers, Esq (Law
Offices of Martin H Scher), for the Respondent
Michael Barrett, Esq (Friedman, Levy, Warren & Moss),
for the Charging Party
BROWER'S MOVING & STORAGE 211
DECISION
STATEMENT OF THE CASE
JOEL P BIBLOWITZ, 'Administrative Law Judge This
case was heard by me on February 9, 1989, in Brooklyn,
New York The complaint and notice of hearing herein,
which issued on November 30, 1988,' and was based
upon an unfair labor practice charge filed on October 11
by Local 814, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union), alleges that Brower's Moving & Storage, Inc
(Respondent) violated Section 8(a)(1) and (5) of the Act
by repudiating and failing to abide by its contract with
the Union by, inter aim, failing to make pension fund,
welfare fund, and annuity fund contributions, as required
by the contract, and by failing to comply with the con-
tract's terms regarding wages, holidays, vacations, and
union security
On the entire record, I make the following
FINDINGS OF FACT
I JURISDICTION AND LABOR ORGANIZATION STATUS
Therein being no dispute, I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and the Union is a
labor organization within the meaning of Section 2(5) of
the Act
II FACTS AND ANALYSIS
Respondent is engaged in the warehousing and moving
and storage business and has maintained a collective-bar-
gaining relationship (of sorts) with the Union since 1951
At that time, Respondent recognized the Union and the
union delegate came to Respondent's facility and had a
number of employees (principally members of the
Brower family) join the Union From that time until his
death in 1954, the union delegate came to the facility
regularly to collect union dues from these individuals
From 1954 until the visit of Peter Furtado (as discussed,
infra) nobody from the Union ever visited the shop Re-
spondent never formally negotiated a contract with the
Union, but, apparently, every few years executed a
Memorandum of Agreement agreeing to be bound by an
agreement entered into by the Union with one of the em-
ployer associations with which it negotiates, and to exe-
cute the printed contract as soon as it was available The
last such Memorandum of Agreement is effective April
1, 1986, through March 31, 1989
During 1988, Respondent had a complement of from
10 to 20 employees, this number does not include Doro-
thy Golden, bookkeeper and sister-in-law of the owners
It does include Clifford Brower, secretary-treasurer of
Respondent ("I take care of the books in the office and
work around the warehouse just like everybody else"),
Wesley Brower, president of Respondent and another
owner with Clifford Brower, Gary Brower ("He drives a
truck, he works around the warehouse, anything that has
'Unless indicated otherwise, all dates referred to herein relate to the
year 1988
to be done"), Wesley Brower's son, and John Brower, a
truckdnver and also Wesley Brower's son Gary and
John Brower each owns some stock in Respondent
Gary and John Brower are two of Respondent's four
regular drivers, Respondent . also employs people who do
packing and warehousing
At least since 1967, the only two employees for whom
Respondent has transmitted dues and contributions to the
Union are Clifford and John Brower Until about 1956,
Respondent contributed, as well, for Wesley Brower, at
that time, a representative of the Union told him that he
could not work alongside the other employees, and Re-
spondent ceased transmitting dues and contributions to
the Union on his behalf In about 1967, Respondent con-
tacted the Union and informed them that it had a driver
in its employ for about 9 years and that it had not been
deducting or transmitting dues or contributions on his
behalf, at that time, Respondent and the Union entered
into an agreement for the Respondent to pay about
$20,000 to the Union over 18 months so that the employ-
ee would be eligible for benefits upon his retirement
Respondent made the final payment pursuant to this
agreement in 1969 Prior to 1982, Respondent also made
the required contributions for employee George Finley
and, possibly, others
In 1981, the trustees of the Union's Welfare, Pension
and Annuity Trust Fund (the Funds) sued Respondent in
Supreme Court, Queens County, for failing to pay to the
Funds the sum of $14,105 for the period July 1975
through January 1981, 2 the lawsuit added an additional
$7500 as interest and attorney's fees By a stipulation en-
tered into in March 1982, Respondent agreed to pay
$19,000 to the Funds over a period of about 2 years and
the payments were made
By letter dated October 14, 1983, "to All Employers"
(including Respondent) the Union, by Charles Martelli,
its secretary-treasurer, wrote
In accordance with the requirements of Section
21(A) of the Collective Bargaining Agreement, it is
expected that each Employer shall mail, to the
Union's office, no later than November 15, 1983, an
up-to-date seniority list, showing the date of origi-
nal hire and the classification seniority date for all
employees
The above requirement must be complied with
without exception
On the bottom of this letter, Clifford Brower wrote
"Charlie—Please check and see what year we got in the
Union and how many years we have to our credit" Un-
derneath, he listed his name together with John Brower
By letter dated November 28, 1983, Martelli stated
"Please be informed that we are in receipt of your se-
niority list and wish. to inform you of the following in-
formation" The letter gave October 16, 1967, as date of
initiation for both, Clifford and John Brower, together
their pension credits
2 li is not clear whether this lawsuit covered payments only for John
and Clifford Browers, or whether It Included payments for others, as
well
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Other than the above-recited situations and the com-
plaint filed in the United States District Court for the
Eastern District of New York on February 11 (as more
fully described, infra) the Union has never filed a griev-
ance or court action against Respondent, nor did any
union representative ever appear at Respondent's facility
to question Respondent's compliance with the contract
even though the uncontradicted testimony establishes
that Respondent did not comply with a vast majority of
the contractual terms, including the following
Article 1 (Wages)
Article 3 (Birthday Holidays)
Article 4 (Vacations)
Articles 5, 6 and 7 (Job Classifications)
Aiticle 9 E (Pay for Meals and Lodging for
Overnight Hauls)
Articles 11 and 12 (Conditions and Rates Paid
Employees
Article 13 (Union Security Clause)
Article 16 (Check-Off of Dues)
Article 17 (Shop Steward) -
Article 21 (Seniority)
Article 23 (Death in Family)
Articles 29, 30 and 31 (Pension, Welfare and An-
nuity Fund)
Article 32 (Cost of Living Allowance)
More particularly (as regards the more important of
these provisions) Respondent did not pay the wages as
set forth in the contract or make the contributions to the
Union's Funds for any of Respondent's employees except
for Clifford and John Brower In addition, Respondent
did not maintain a seniority list, did not notify the Union
upon the hiring of new employees or after their 31st day
of employment, and never had any employee designated
as a shop steward As stated, supra, in about 1956
Wesley Brower was informed that, as an owner of Re-
spondent, he could not work on the trucks with members
of the Union At that time, Respondent ceased making
payments to the Union and the Funds on his behalf, but
he "still worked on the truck next to whoever was there
with me," without any complaints from the Union
Beginning in January, the Union has sent past due no-
tices ("This will inform you that your monthly payment
to the Teamsters Local 814 Pension, Welfare and Annu-
ity Trust Funds as set forth below has not been received
This matter needs your immediate attention ") to Re-
spondent stating that the delinquency period was 1981
through 1987, apparently, Respondent never responded
to these notices Rather, Respondent continued to make
the required contributions to the Funds for Clifford and
John Brower, at least, through the end of 1987
On December 21, 1987, Peter Furtado, who, at the
time, was an auditor for the Funds, audited Respondent's
books pursuant to the Funds normal procedures On Jan-
uary 14, the Funds sent Respondent a Notice of Audit
Delinquency stating that Respondent had underpaid the
Funds in the amount of $239,000 for the period April
1983 through September 1987, that amount, together
with interest and "liquidated damages" of 20 percent
brought the amount Respondent owed to $377,000 Pay-
ment was demanded within 15 days, Respondent was in-
formed that if payment was not made the matter would
be turned over to the Funds' attorneys On February 11,
1988, the Funds sued Respondent in Federal District
Court in Brooklyn for $239,000 plus interest, liquidated
damages, and costs Apparently, this matter has not yet
reached the trial stage Respondent has not paid this
amount to the Union
Respondent defends on three grounds there is no con-
tact, even if there were a contract, it has long since been
abandoned by the Union, and, even if it has not been
abandoned, after so many years of not enforcing the
agreements, the Union is estopped from attempting to do
so now .
The Board has long held that an incumbent union gen-
erally enjoys a presumption of continued majority status
(a prerequisite, of course, to an 8(a)(5) violation) during
the duration of an collective-bargaining agreement Pio-
neer Inn, 228 NLRB 1263 (1977), Colson Equipment, 257
NLRB 78 (1981) An exception to this rule was set forth
in Ace-Doran Hauling & Rigging Co, 171 NLRB 645
(1968), where the Board found that the contracts be-
tween the parties did not raise a presumption of regulari-
ty or that the union was the majority representative of
the employer's employees
The evidence relating to the practice under the
agreements further makes it clear that the parties
did not intend them to be effective collective-bar-
gaining contracts, but instead merely regarded them
as arrangements under which Respondent agreed to
check off dues, health and welfare, and pension
payments . for union members only The acquies-
cence of the Unions in respondent's failure both to
enforce the union-security provisions of the agree-
ments and to pay health and welfare contributions
for all employees (as ostensibly provided by the
"contracts"), makes it clear that the parties did not
believe that they were in true collective-bargaining
relationships
Since the alleged agreements are not such as
would give rise to a presumption of majority status,
we find that the General Counsel has failed to sus-
tain his burden of proof and therefore that the com-
plaint should be dismissed
See also Bender Ship Repair Go, 188 NLRB 615
(1971), Weber's Bakery, 211 NLRB 1(1974), and McDon-
ald's Drive-In Restaurant, 204 NLRB 299 (1973), which
stated at 309
However, the Board has held that this presump-
tion may not attach following the termination of the
contract where the contract does not define the bar-
gaining unit with sufficient clarity or where the
practices thereunder demonstrate that the parties
never intended to establish a real bargaining rela-
tionship
Apart from the ambiguity thus surrounding the
scope ,of the bargaining unit, the evidence leaves
one highly skeptical that a real collective-bargaining
relationship emanated from the execution of the
Alton contract As previously discussed, it is undis-
BROWER'S MOVING &STORAGE 213
puted that the Union neither administered the con-
tract nor serviced the employees As a result, not
only were the employees deprived of ,contractual
benefits pertaining to such matters as wage rates,
health and welfare contributions, meals, umforr9s,
job duties, and holidays, but they were subjected to
working conditions unilaterally imposed by the Re-
spondent without any protest from the Union
Moreover, whatever grievances or complaints they
had they personally presented to, and discussed
with, management and it was not until the closing
days of the contract that the Union undertook to
submit several employee grievances to the Compa-
ny In addition to the Union's indifference to em-
ployee interests, it did not serve its own much
better Although the contract contained union-secu-
rity provisions, it did not bother to enforce them
Apparently, the Union was content with the few
employees the Respondent periodically signed up
for the Union and with the initiation fees and dues
the Respondent deducted from the wages of these
employees It was only near the end of the contract
term that the Union took more affirmative steps to
enlist the Respondent's assistance to force the em-
ployees to join
In sum, I find that the parties never entered into
a true collective-bargaining relationship out of
which a presumption of the Union's majority status
may arise At best, the relationship was a token one
where "the Union was willing to exact little in the
way of contract enforcement and [the Re-
sponder.t was] satisfied to reap the financial benefit
of lower costs" In these circumstances, and in view
of equivocal nature of the bargaining unit, I find the
evidence insufficient to support a presumption that
the Union was the majority representative of the
employees in the alleged Alton store unit
I cannot imagine a better example of the situation re-
ferred to in McDonald's and Ace-Doran, supra, as the in-
stant matter Respondent initially recognized the Union
in about 1951 and about every 3 years the Union sent
Respondent a Memorandum of Agreement to execute, by
signing each of these, Respondent agreed to be bound by
the contract the Union was to negotiate with an associa-
tion After Respondent agreed to recognize the Union in
1951 (without any majority support from Respondent's
employees) the Union's subsequent activity (up until the
December 1987 audit of Respondent's books and the sub-
sequent filing of the Federal court action in February)
was as follows
After Respondent recognized the Union, a representa-
tive of the Union came to the Respondent's facility and
signed Clifford and Wesley Brower as union members, it
is not clear whether any other employee joined the
Union at that time
In 1967, Respondent contacted the Union and in-
formed them that it wanted Mernweather, a driver in its
employ for 9 years, to be a member of the Union and
covered by the Funds so that he could receive a pension
from the Union upon retirement The Union determined
the amount due it since Mernweather began his employ-
ment, with Respondent in 1959—almost $20,000—and
Respondent paid this amount to Respondent
In 1981, the union Funds sued Respondent for $14,000
delinquency in payments to the Funds from 1975, a year
later, this matter was settled when Respondent agreed to
pay this amount in installments This lawsuit involved
only the annuity, welfare, and pension funds not any
other payments Respondent failed to make under the
contracts
In 1983 the Union requested all employers under con-
tract to supply them with a seniority list, Respondent
asked the Union for the seniority dates of the only two
individuals who were members—Clifford and John
Brower—and the following month the Union supplied
them with their date of initiation into the Union-1967
On a monthly basis (beginning in, at least, April 1986)
transmitted to Respondent a combined Monthly Welfare,
Pension and Annuity Contribution Report with only
John's and Clifford's names filled in, Respondent then
listed 40 hours for each, together with the amount due
and a check to cover this amount Between the 1981
lawsuit and the December 1987 audit, Respondent never
questioned these reports
The record clearly establishes that aside from the dues
and fund payments for Clifford and John Brower (and
for a period, Mernweather and Wesley Brower) the con-
tracts between the parties were totally disregarded, em-
ployees were not members of the Union as required by
the union-security clause of the agreement nor did they
receive the terms and conditions of employment as speci-
fied in the contracts Rather, it appears that (with the ex-
ception of the 1981 lawsuit) between 1951 and December
1987, the Union did nothing to enforce its contract with
Respondent General Counsel, in her brief, cites Mr
Clean of Nevada, 288 NLRB 895 (1988) However, that
case is distinguishable from the instant matter because
that bargaining relationship lasted only 2 years and 4
months and involved deception by the employer In the
instant matter, the parties had a collective-bargaining re-
lationship for 36 years before the Union took any action
to enforce the contract, and Respondent never engaged
in any positive deceptions, it simply made believe that
the contract did not exist
The 1986 through 1989 contract therefore does not
give rise to a presumption of majority status, Ace-Doran,
supra, I therefore find that the General Counsel has
failed to sustain her burden of proof and accordingly rec-
ommend that the complaint be dismissed 3
3 Although I have recommended that the complaint be dismissed on
this ground, two other theories—members only and abandonment—
should be mentioned In Don Mendenhall Inc , 194 NLRB 1109 (1972),
the Board refused to find an 8(a)(5) violation because the agreement be-
tween the company and the union was applied to members only Mem-
bers only is not applicable to the instant situation because the contract
did not even cover the terms and conditions of employment of the only
two members—John and Clifford Brower, it only covered them for the
annuity, pension, and welfare funds On the other hand, I cannot imagine
a clearer case of abandonment by a union, in the situation herein, the
Union (as differentiated from the trustees of the Funds) made no attempt
to enforce the provisions of its agreements with Respondent for approxi-
mately 36 years To me, this indicates an unwillingness to represent the
employees in the unit" Road Materials, 193 NLRB 990, 991 (1971) See
also Industrial Paper Stock Co, 66 NLRB 1185 (1946) I would therefore
recommend the dismissal of this complaint for that reason, as well
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1 Brower's Moving & Storage, Inc is an employer en-
gaged in commerce within the meaning of Section 2(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 Respondent did not violate Section 8(a)(1) and (5)
of the Act as alleged in the complaint
[Recommended Order for dismissal omitted from pub-
lication]