Brown Co.

National Labor Relations Board - Board Decisions

Jul 30, 1979

243 N.L.R.B. 769 (N.L.R.B. 1979)

BROWN COMPANY
Brown Company; Brown Company, Livingston-Gra-
ham Division; Brown Company, Tri-City Concrete
Division; L-T Transport, Inc. and Kris A. Borum
Brown Company, Livingston-Graham Division and
Kris A. Borum. Cases 21 CA 14732 I and 21 C'A
14732 2
July 30. 1979
DECISION AND ORDER
On April 21, 1978, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Charging Party filed exceptions and supporting
briefs, and Respondent filed cross-exceptions and a
reply brief and brief in support of cross-exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brietf
and has decided to affirm the rulings. findings, and
conclusions of the Administrative Law Judge only
where they are consistent herewith.
The General Counsel and the Charging Party have
excepted to the Administrative Law Judge's dismissal
of the complaint herein based on his deferral to an
award made by a joint labor-management grievance
committee. We find merit in these exceptions.
Livingston-Graham and Tri-City are divisions of
Brown Company are engaged in the manufacture and
transportation of rock, sand, gravel, and ready-mixed
concrete products. L-T Transport, Inc.. also owned
by Brown, was formed in 1975 and is engaged in the
transportation of bulk cement. The Administrative
Law Judge found that Brown, Tri-City. Livingston-
Graham, and L-T constitute a single employer within
the meaning of the Act. We agree with this finding.
The facts are set out in the Administrative Law
Judge's Decision and need not be repeated fully here.
This case involves the transfer of work which was
performed by employees of Livingston-Graham to L-
T while Livingston-Graham was party to a collective-
bargaining agreement, covering such work, with
Building Material & Dump Truck Drivers Local 420.
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (herein
called Local 420), Intervenor in this proceeding.
Prior to January 1976, part of Livingston-Gra-
ham's operations involved the hauling of bulk cement
aboard "cement trains," special tractor-trailer trucks
designed for such hauling. It operated 7 of these
trucks and employed 12 drivers in this operation.
Most of its cement hauling involved the delivery of
cement from cement companies to Livingston-Gra-
ham's own locations to satisfy its own needs. How-
ever, on some occasions, Livingston-Graham also
hired out its cement trains (with drivers) to cement
companies for the hauling of cement to other custom-
ers of the cement companies, a so-called for-hire ar-
rangement. The cement train drivers employed by
Livingston-Graham were part of a unit of some 200
of' its employees represented by Local 420 and cov-
ered under the "blue book" contract between Rock
Products and Ready Mixed Concrete Employers of
Southern California and a number of Teamsters lo-
cals. including Local 420.
In the early 1970's, man, of Livingston-Graham's
competitors in the ready-mix business began forming
satellite cement hauling companies which operated
under for-hire collective-bargaining agreements with
different Teamsters locals including Local 420. In the
spring of 1975, Respondent's officer, Dyck. became
aware that one of Livingston-Graham's competitors.
Con Rock, had formed such a company and had
signed for-hire collective-bargaining contracts with
Teamsters locals including Local 420. Under these
contracts, the cement train drivers were paid substan-
tially lower wage rates than Livingston-Graham's
drivers were receiving under the blue book contract
between Livingston-Graham and Local 420.
Dyck informed Local 420's secretar,-treasurer,
Traweek. that Respondent intended to form a new
compan, L-T. and transfer its cement trains from
l ivingston-Graham and Tri-City (which also had ce-
ment trains whose drivers were represented by l.ocal
467). to I,-T. nder Dyck's proposal, if local 420
agreed to sign a for-hire contract, the trucks, although
operated by L,-T. would remain at the Livingston-
Graham location. The employees presently driving
the trucks could transfer to the employ of L-T, retain
their seniority, and work under the lower wage rate
or, based on their seniority, bump back into other
jobs at Li,,ingston-(iraham. If they did not have suffi-
cient seniority to bump. they would be laid off. Tra-
week informed Dyck that he would sign the for-hire
contract only if authorized by the drivers he repre-
sented.
Following meetings with the employees at which
both Dck and the union representatives attempted
to persuade the employees of the benefits of Dyck's
proposal, the employees withheld their approval and
Local 420 refused to sign the for-hire contract. Mean-
while. Locals 467 and 87 1, with jurisdiction over loca-
tions where Tri-City had its operations, signed such a
contract with Respondent. Thereafter, employees of
Tri-City were given first opportunity to transfer to the
driving jobs at L-T. No such invitation was extended
to Livingston-Graham employees.
On December 31, 1975, all of Livingston-Graham's
cement trains were transferred to Tri-City's Redlands
location where. January 2. 1976. L-T began its ce-
ment hauling operations, utilizing drivers formerly
243 NLRB No. 100
769
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed by Tri-City and represented by Locals 467
and 871. At the same time all but three of Livingston-
Graham's former cement train drivers bumped into
other jobs with that Company. Three, including the
Charging Party herein, had insufficient seniority to
bump and were laid off for a period of months.
On January 24, 1976, the Charging Party and other
former cement train drivers of Livingston-Graham
filed a grievance under the blue book contract be-
tween Local 420 and Livingston-Graham over the
transfer of work to L-T. The grievance was heard by
the grievance committee under step two of the griev-
ance procedure on February 19, 1976. Traweek was
the presiding cochairman of the committee, although
he did not participate in the deliberations or vote on
the grievance. The committee consisted of three rep-
resentatives from unions and three from manage-
ment. The three union representatives were from Lo-
cals 235, 692, and 871. Management was represented
by the retiring industrial relations director for the em-
ployer association and his successor, and Clemente,
from another contracting company.
Shortly after the Union began its presentation of
the grievance, the Charging Party interrupted, claim-
ing that the Union was not fairly representing the
grievants. She was then allowed to present her own
case, during which she argued that Livingston-Gra-
ham's transfer of the work to L-T was violative of
various sections of the contract.
Dyck argued for Livingston-Graham that the sale
of the trucks to L-T was for economic reasons to meet
the competition of cement hauling companies, that it
had bargained with Local 420, and that it had a right
under the contract to sell the equipment. After hear-
ing the testimony, the committee deliberated and de-
nied the grievance.
In dismissing the 8(a)(3) and (5) allegations of the
complaint, the Administrative Law Judge deferred to
the grievance committee's denial of the Charging Par-
ty's grievance. As the committee had agreed that Re-
spondent's action was not violative of the contract,
the Administrative Law Judge found that no viola-
tion lay under the Act. We disagree.
In determining whether it will honor the award of
an arbitrator or an arbitration panel in deciding an
unfair labor practice case, the Board looks to see
whether the arbitration proceedings appear to have
been fair and regular, whether all parties to the pro-
ceedings have agreed to be bound by the arbitration
award, and whether the arbitration decision is not
clearly repugnant to the purposes and policies of the
Act.' In our opinion the proceedings before the com-
I Spielberg Manufacturing Company. 112 NLRB 1080 (1955).
mittee here, and the award it made, do not meet this
test.
Although the Board has honored the awards of
joint committees such as the committee in the instant
case, we will not honor such an award where it ap-
pears that members of the committee have interests
which are directly in conflict with those of the griev-
ing party. In this case, one of the representatives on
the committee was from Local 87 1, which represented
some employees of Tri-City, but had no jurisdiction
over cement train drivers. However, prior to the
grievance hearing here, Local 871 had signed a for-
hire contract with Respondent, and its members who
worked for Tri-City had been invited to, and some
did, transfer to L-T cement train drivers filling jobs
formerly held by the grieving parties.2 Likewise, two
of the management representatives on the committee
were the retiring industrial relations director of the
employer association and his successor, people whose
function it is to act in the best interest of the associ-
ation's employer-members, including Respondent
and other companies who, like Respondent, had
formed satellite companies and signed for-hire con-
tracts with local unions. The third member from man-
agement was Clemente. of Sully-Miller Contracting
Company, which had also formed a for-hire cement
company. It appears to us that this situation necessar-
ily created a community of interest on the part of the
committee members which was in conflict with the
interests of the grievants and which would preclude
the impartiality we deem necessary in an arbitration
proceeding. Under such circumstances we will not
honor the award of that committee in deciding the
unfair labor practice allegations before us.3
2 As a result of a grievance decision, these employees were not allowed to
keep the seniority they had with ri-(City pertaining to bidding and bumping
rights. They did maintain their seniority pertaining to such things as vaca-
tion, insurance beniefits, and other matters.
Additionally, we note that the evidence before us concerning the griev-
ance proceedings is scant and sheds little light on what matters were consid-
ered by the committee in its deliberations. All that is shown is that the
committee accepted Dyck's explanation of economic necessity and found
that he did not violate art. X and XIX of the contract. Yet, in considering
art. XIX, which deals with job protection of employees and the right of the
Employer concerning subcontracting its hauling, there is little and vague
evidence that the committee considered the single-employer nature of Re-
spondent's operations as they relate to the transfer of work involved here. It
is also clear that the committee did not consider the unfair labor practice
issues presently before the Board. Further, although, as noted by the Admin-
istrative Law Judge. there is no 8bX I A) charge before us alleging that the
Union did not fairly represent the grievants. the evidence is clear that, prior
to and during the grievance proceedings, the positions of the Union and the
grievant, Borum. were not in harmonious accord. All of these factors weigh
in our finding that deferral to the committee award is not suitable in this
case.
Member Jenkins concurs in this finding. For the reasons given in his dis-
sents in Automoive Transport, Inc., 223 NLRB 217 (19761: Terminal Trans-
port Compan, Inc., 185 NLRB 672 (1970); and nited Parcel Service. Inc.
232 NLRB 1114 (19771. he would not defer to an award rendered by a panel
without an outside neutral member to provide impartial consideration of the
grievance.
770
BROWN COMPANY
We also do not agree with the Administrative Law
Judge that the legality of Respondent's actions here
depend on an interpretation of the contract which can
best be made by the greivance committee as an exten-
sion of the collective-bargaining process. Rather, Re-
spondent's actions must be judged by their conformi-
ty with statutory law.
As the Administrative Law Judge correctly noted.
we have held that a unilateral removal of bargaining
unit work during a contract term is the type of con-
tract modification proscribed by the Act, regardless
of economic justification. Further, under Section 8(d)
of the Act, a party to the contract cannot be com-
pelled to bargain about such a modification and, ac-
cordingly, any modification can be implemented only
with the consent of the other party.4
In the instant case it is clear that Local 420 agreed
to sign the for-hire agreement only with the authori-
zation of the concerned employees, which was not
forthcoming. As a result of this refusal to sign the
contract. Respondent moved its trucks and deprived
the drivers of the jobs they were entitled to under the
existing contract. Some drivers were laid off and oth-
ers were forced to bump into less desirable positions
at Livingston-Graham.
It is also clear that Respondent took this action for
the sole purpose of escaping from its wage obligations
under the existing collective-bargaining contract. Had
the employees and Local 420 agreed to a contract
containing substantially lower wage rates than the
blue book contract under which they were covered,
Respondent would have left the trucks at Livingston-
Graham and the drivers would have retained their
jobs. By transferring its trucks to L-T. Respondent
thus did partially abrogate the existing blue book
contract with Local 420.
It matters not whether Respondent's transfer of its
trucks was a result of union animus, nor that it first
bargained with the Union and attempted to get it to
sign a new agreement. It is obvious that Respondent's
actions were "inherently destructive of employee in-
terests"5 and that the employees lost the jobs to which
they were entitled as a result of Respondent's efforts
to escape its economic obligations under the contract.
Such conduct is violative of Section 8(a)(3) and (I) of
the Act.6
See Los Angeles Marine Hardware Co., a Division of Mission Marine
Associates. Inc., and California Marine Hardware Co. a Division ol Mission
Marine Associates. Inc.. 235 NLRB 720 (1978). and cases cited therein.
Rushton & Mercier Woodworking Co. Inc. 203 NLRB 123 (1973).
Los Angeles Marine Hardware Co., supra. and cases cited therein. Were
economic necessity a consideration to justifs actions in a case such as this.
we would here find that Respondent has failed to show such a necessit). Its
claim that lowenng wages was necessars for it to be competitive with other
cement hauling companies is unconvincing, as the record shows that the
minimum rates charged by for-hire cement haulers to cement companies is
set by the Public Utilities Commission and, according to Dyck's testimony
The above finding is not precluded by the fact that
Local 420 has apparently abided by the decision of
the grievance committee, or that the Uinion has not
filed a charge with the Board. As noted. we will not
honor the committee's award because it does not con-
form to the Spielberg criteria. However, in light of the
Union's apparent silent acceptance of the commit-
tee's decision, and the fact that we are able to remedy
adequately Respondent's unfair labor practices as
found, we find it unnecessary to pass on whether Re-
spondent also violated Section 8(a)(5) of the Act.'
CON(CI lSIONS ()F LAW
I. Brown Company: Brown Company, Livingston-
Graham Division: Brown Company. Tri-Cit: Con-
crete Division: L-T Transport. Inc., are each employ-
ers within the meaning of Section 2(2) of the Act en-
gaged in commerce and in businesses affecting
commerce within the meaning of Section 2(6) and (7)
of the Act and collectively constitute a single em-
ployer within the meaning of the Act.
2. Building Material & Dump Truck Drivers ocal
420, International Brotherhood of Teamsters. Chauf-
feurs, Warehousemen and Helpers of America. is a
labor organization within the meaning of Section 2(5)
of the Act.
3. A unit appropriate for collective bargaining is:
All drivers of plant and pit trucks, to-axle
dump trucks, three-axle dump trucks, semis.
truck-trailer and semis, cement-trains, mixer
trucks, flats, flat truck-trailer and semis, mobile
service trucks, mobile sweeper driver, ware-
housemen, automotive repairmen, batch plant
operators, bunkermen. gas station operator and/
or fueler, loaders. washers, greasers. firemen, and
chippers employed by Livingston-Graham
within the geographical jurisdiction of Local
420: excluding all employees properly covered
by other bargaining units, office clerical employ-
ees, technical and professional employees,
guards, watchmen, and supervisors as defined in
the National Labor Relations Act. as amended.
4. At all times material, Building Material &
Dump Truck Drivers Local 420, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, has been the exclusive collective-
all the cement haulers charged the same rate. It would thus appear that.
although having lower wage rates would allow Respondenl to increase its
profits (and the record shows Livingston-Graham's cement hauling opera-
tion was profitable), it would not affect the competition factor.
'Contrary to our dissenting colleagues' representation. we do not consider
the Union's not contesting the grievance committee's decision. for whatever
reason, tantamount to consenting to the actions of Respondent The record is
quite clear that Local 420 at no time gave the consent necessary to legitima-
tize Respondent's unilateral actions.
771
I)ECISIONS OF NATIONAL LABOR RELAl IONS BOARI)
bargaining representative of' the employees in the
above-described unit within the meaning of Section
9(a) of the Act.
5. Bv discontinuing its cement hauling operations
at Livingston-Graham's locations in Vernon and El
Monte. California, and selling and transferring its
trucks to L-T Transport. Inc., at its Redlands, Cali-
fornia, location, with the object of withdrawing this
work from the bargaining unit for which Local 420 is
the contractually recognized representative under the
terms of its then existing collective-bargaining agree-
ment, Respondent unlawfully deprived employees
Louis H. Bering. Kris A. Borum, William R. Cannon,
Anthony Giangreco Clarence Hudson James Jawor-
ski, Harry D. Potts, Robert L. Reilly. Carmen Ros-
selli, Robert L. Schaffer, Donald H. Thomas, and
James A. Wilson of the employment to which they
were entitled, thereby violating Section 8(a)(3) and
(1I) of the Act.
6. The aforesaid unfair labor practices affect coim-
merce within the meaning of Section 2(6) and (7) of
the Act.
Ti RMF.I])Y
The General Counsel has requested that Respon-
dent be required to transfer back to its Livingston-
Graham locations the trucks which it transferred to
L-T on or about December 31, 1975: that it reinstate
the drivers who formerly drove those trucks for Liv-
ingston-Graham to their former positions, making
them whole for any loss of wages they may have suf-
fered; and that it be required to continue to recognize
and bargain with Local 420 as the collective-bargain-
ing representative of these employees.
Given the nature of Respondent's unfair labor
practices, such a remedy seems appropriate to restore
the status quo ante. Further, there is no evidence to
show that this remedy creates an undue hardship on
Respondent. Respondent, as a single employer, re-
mains in the cement hauling business and maintains
its own fleet of trucks for this purpose. As noted by
the Administrative Law Judge, there is substantial
functional integration between Livingston-Graham
and L-T, including the dispatching and repair of the
trucks, clerical work, and the sharing of a common
sales force. We will therefore grant the remedy re-
quested by the General Counsel. Where backpay is
required, it will be paid with interest on on the
amounts owing, and computed in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977). See, generally, Isis Plumbing & Heating Co..
138 NLRB 716 (1962).
ORDER
Pursuant to Section IO(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent.
Brown Company: Brown Company, Livingston-Gra-
ham Division: Brown Company. Tri-City Concrete
Division: L-T Transport. Inc., El Monte, Vernon. and
Redlands, Califtrnia, its officers, agents, successors.
and assigns, shall:
1. Cease and desist from:
(a) Discontinuing its cement hauling operations at
l.ivingston-Graham's Vernon and El Monte locations
and selling and transferring its trucks to L.-T Trans-
port. Inc.. at Redlands. or discontinuing any other
work encompassed within its collective-bargaining
agreement with Building Material & Dump Truck
Drivers Local 420, International Brotherhood of'
Teamsters, Chauffeurs Warehousemen and Helpers
of America, with the object of escaping the obliga-
tions imposed by the collective-bargaining agreement.
(b) Laying off or otherwise discriminating against
employees with regard to hire or tenure of employ-
ment or any term or condition of employment for
engaging in activities on behalf of a labor organiza-
tion or t'or engaging in activities protected by Section
7 of the Act.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of any right
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Continue to recognize and, upon request, bar-
gain collectively with l.ocal 420 as the exclusive bar-
gaining representative of the following unit found
herein to be appropriate. A unit appropriate for col-
lective bargaining is:
All drivers of plant and pit trucks, two-axle
dump trucks, three-axle dump trucks, semis,
truck-trailer and semis, cement-trains, mixer
trucks, flats, flat truck-trailer and semis, mobile
service trucks, mobile sweeper driver, ware-
housemen, automotive repairmen. batch plant
operators, bunkermen, gas station operator and/
or fueler. loaders, washers, greasers, firemen, and
chippers employed by Livingston-Graham
within the geographical jurisdiction of Local
420; excluding all employees properly covered
by other bargaining units, office clerical employ-
ees, technical and professional employees,
guards, watchmen, and supervisors as defined in
the National Labor Relations Act, as amended.
(b) Resume the cement hauling operations for-
merly carried on at Livingston-Graham's Vernon and
772
BR()ON ('OMPANY
El Monte locations transferring back to L.i'ingston-
Graham's Vernon and 1I.1 Monte locations the trucks
which it previously sold and transferred to I.-T
Transport, Inc.
(c) Offer to Louis 1i. Bering. Kris A. Borum. Wil-
liam R. Cannon, Anthony ijangreco. Clarence lud-
son, James Jaworski. Harry D. Potts. Robert 1.. Reil-
ly, Carmen Rosselli, Robert L. Schafler. Donald H.
Thomas, and James A. Wilson immediate and full
reinstatement to their former positions of emplov-
ment as drivers of cement trains, dismissing. i neces-
sary, anyone who may have been hired to perform the
work that they had been performing prior to Decem-
her 31, 1975. or, if their former positions no longer
exist. to substantially equivalent positions without
prejudice to their seniority or other rights and privi-
leges previously enjoyed. and make them whole or
any loss of pay they may have suffered as a result ot
this discrimination in the manner set forth above in
the section entitled "The Remedy."
(d) Preserve and. upon request, make available to
the Board or its agents. all payroll records, social se-
curity payment records, timecards, personnel records
and reports, and all other records necessary to com-
pute the backpay and reinstatement rights set forth in
this Decision.
(e) Post at its El Monte, Vernon. and Redlands.
California, facilities copies of the attached notice
marked "Appendix." Copies of said notice, on forms
provided by the Regional Director for Region 21, af-
ter being duly signed by Respondent's authorized rep-
resentative, shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained b it
for 60 consecutive days thereafter, in conspicuous
places. including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other mate-
rial.
(f) Notify the Regional Director for Region 21. in
writing, within 20 days from the date of this Order.
what steps Respondent has taken to comply herewith.
MEMBERS PENFI.Io and MURPHY, dissenting:
This is another instance in which our colleagues
give lip service to the Spielherg principle ' but in fact
whittle away at its substance. Contrary to our col-
leagues, we would affirm the Administrative Law
Judge's finding that Respondent did not violate Sec-
I In the event that this Order s enforced h a Judgment of a United States
Court of Appeals. the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcilng an Order of the National
Labor Relations Board."
* Spielberg Manufacturing Corpnam . 112 NLRB 1080 1955).
tion 8(a)(5) and (3) of the Act and would dismiss the
complaint in its entiret\.
-he essential facts are complex and bear recount-
ing. Brown Company is engaged in the manufacture
and transportation of rocks. sand. gravel. and reads-
mixed concrete products. l. ivingston-(Grahanl is a di-
vision of Brow n which has 4 rock plants and I I or 1 2
batch plants in Orange. Los Angeles. and Ventura
Counties. It employs between 400 and 500 employees.
Some 200 of its employees are represented by eam-
sters Local 420 under the terms of a contract between
Rock Products and Reads Mixed Concrete Employ-
ers of Southern (alitfornia and Locals 420. 692. 495.
88. 982. 235. and 871. eamsters. he contract is re-
ferred to as the blue ook. Among the job classifica-
tions set forth in the contract is that of "drivers of
cement trains." Prior to January 2. 1976. Iijingston-
Graham operated 7 trains and employed 12 cement
train drivers. All of these drivers were members of
Iocal 420 and were covered by the blue book.
Tri-C'itN is also a division of Browin enga-ged in sub-
stantiall the same business as L.ivingston-Graham. It
has several plants in San Bernardino and Riverside
Counties and employs some 100 employees. About 50
to 55 of Tri-City's employees are covered under a
contract with Teamsters Local 467. referred to as the
orange book. Before January 2. 1976. Tri-CitN had
two cement trains and four cement train drivers at its
Redlands location. These drivers were covered hb the
orange book. The remainder of Tri-CitN's employees
are covered by an agreement between Tri-Citv and
Teamsters Local 871 that the terms of l ocal 467's
contract are to govern. None of the cement trains has
ever been housed in Local 87 I's jurisdiction.
Livingston-Graham's cement trains were used pri-
marilN as part of its own operation. Occasionally. Li'-
ingston-Graham hired it cement trains to cement
companies which made deliveries to other customers.
The same was true of Tri-City's operations.
In April 1975. Livingston-Graham informed Local
420 that it wanted to form a cement hauling com-
pany. transfer the seven cement trains to that com-
pany. and work out an agreement with the Union
whereby the cement trains could operate under a for-
hire contract rather than under the blue book. In so
doing, Livingston-Graham was attempting to follow
an industry practice which began about 1970. Under
this practice. companies like Livingston-Graham
which engaged in several operations would create or
acquire a separate corporation with the exclusive op-
eration of cement hauling. The new company would
then enter into a for-hire agreement with the Union.
The Teamsters, including Local 420. entered into a
number of such for-hire agreements. in which the
773
DECISIONS () NA ()IONAL I.ABOR REI.ATIONS BOARI)
wage rates for drivers were substantially less than
those under the blue hook."'
In a letter dated July 27. 1975, Livingston-Graham
informed Local 420 that it had established a cement
hauling company called L-T Transport, Inc., and that
it would like the Union to send it a cement hauling
agreement. On July 15, 1975, Anton Dyck, who han-
dles labor contract negotiations for Livingston-Gra-
ham and Tri-City, met with representatives from Lo-
cals 420 and 467 and said that he would like for both
Locals to sign a for-hire agreement with the new com-
pany, L-T, to cover cement train drivers. This agree-
ment would have resulted in all the cement trains
staying where they were. The Livingston-Graham
drivers would have had the option of transferring to
L-T at the locations where they were then working,
with retention of their Livingston-Graham seniority,
or of refusing to transfer, and bumping into any slot
that their seniority dictated, pursuant to the blue
book. Tri-City drivers would have had a similar op-
tion.
However, the Local 420 representative told Dyck
that the Union would sign the for-hire contract only
if the affected drivers agreed to it. The Local 420 driv-
ers requested the Union not to sign the agreement.
Local 467, on the other hand, did sign the agreement
on August 13, 1975. Subsequently, the 7 cement
trains located at Livingston-Graham were moved to
Tri-City, and 14 cement drivers, formerly employed
by Tri-City, were hired by L-T. On January 2, 1976,
L-T began operations. As a result of this action, three
Livingston-Graham drivers were laid off and the re-
maining nine drivers bumped into different jobs with
Livingston-Graham.
On January 24, 1976, the Livingston-Graham driv-
ers filed a grievance under the blue book alleging
that, without prior notice or bargaining, the Com-
pany violated the agreement "by virtually eliminating
the work and classification of its Cement Train Driv-
ers, and subcontracting (and/or otherwise transfer-
ring) said work to other employers and/or locations."
On February 2, 1976, the Union filed a grievance
form with the grievance committee alleging that Liv-
ingston-Graham violated the seniority and job pro-
tection provisions of the blue book. Pursuant to the
grievance procedure set forth in the contract, the
grievance was heard by the joint grievance committee
on February 19, 1976. The grievance was unani-
mously denied by the six members of the grievance
committee. The Union apparently accepted the com-
10 The hourly pay rate for cement train drivers under the for-hire contract
was $5.58 effective June . 1975; $5.98 effective July 1,. 1975: and $6.20
effective January 2, 1976. In contrast, the blue book wage rate for cement
train drivers was $7.73 effective September I. 1974. with a 90-cent-an-hour
increase September I. 1975. and a 95-cent-an-hour increase effective Septem-
ber . 1976.
mittee's decision, inasmuch as it did not file charges
with the Board and there is no indication that it took
any action to set aside the decision.
The complaint alleges that Livingston-Graham's
actions constituted a partial abrogation of its agree-
ment with Local 420 in violation of Section 8(a)(5)
and that it transferred the the work in retaliation for
Local 420's refusal to consent to a midterm modifica-
tion of the agreement, thus violating Section 8(a)(3).
In both instances, the question of whether a violation
occurred can be answered only by determining
whether the transfer of the cement trains was a mid-
term, unilateral modification of the contract. Thus,
the statutory rights involved herein are intertwined
with an interpretation of the contract. The Adminis-
trative Law Judge so found, and we agree. He further
found that such an interpretation can best be made
by the grievance committee as part of the collective-
bargaining process, that the decision of the committee
met the standards set forth in Spielherg, supra, and
that deferral to the decision was therefore warranted.
Accordingly, he dismissed the complaint. We agree
with this conclusion.
Our colleagues' disagreement with the Administra-
tive Law Judge's conclusion is based on two grounds.
First, they hold that the decision of the grievance
committee does not meet the Spielherg standards for
deferral. Second, they believe that the legality of Re-
spondent's actions here does not depend on contract
interpretation, and that the actions are unlawful un-
der the statute. Neither of these positions is well
founded.
With respect to the decision by the grievance com-
mittee, our colleagues assert that members of the
committee have interests which are in direct conflict
with those of the grieving party. They point to two of
the management representatives, the retiring indus-
trial relations director of the employer association
and his successor, who, they argue, have conflicting
interests because it is their function to act in the inter-
est of the association members, many of whom have
signed for-hire contracts of the sort at issue herein.
They further argue that the third management repre-
sentative had conflicting interests because he was
from a company which had formed a for-hire cement
company. No assertion is made that these representa-
tives had a direct interest in affirming the specific for-
hire contract at issue herein. In such circumstances,
the majority position amounts to a rejection of any
joint grievance committee as a body capable of im-
partially considering a grievance. For, as stated by
the Administrative Law Judge, such committees, by
their nature, cannot be entirely neutral. All represen-
tatives are involved in the same industry and are
bound by the same contract. Any interpretation of
the contract will necessarily interest them. Yet, as our
774
BROWN COMPANY
colleagues acknowledge, the Board has held that deci-
sions by joint labor-management committees can be
treated as arbitration awards." Our colleagues offer
no evidence that the interests of the three manage-
ment representatives are different from those of any
other potential representative to the committee.
Nor is our colleagues' attack on the impartiality of
the labor representative from Local 871 supported by
the evidence. True, Local 871 signed a for-hire agree-
ment with L-T. However, no cement trains have ever
been within Local 87 I's jurisdiction. Four employees
formerly represented by Local 871 did take employ-
ment with L-T as cement train drivers. Yet, when
they attempted to transfer to L-T retaining the senior-
ity earned under the contract between Local 871 and
Tri-City, a grievance was filed, and it was decided
that these employees could not maintain their senior-
ity but would, instead, be treated as new employees
for purposes of bidding and bumping rights. They all
joined Local 467. Thus Local 871 gained nothing for
its members as a result of the transfer of work from
Livingston-Graham to L-T. Its members, like those of
any other union potentially a representative to the
grievance committee, could leave their present jobs
and begin work essentially as new employees at L-T
where they would be represented by Local 467.
For these reasons, we see no merit in the majority's
assertion that conflicting interests precluded an im-
partial decision by the grievance committee. We
would, therefore, defer to the committee's decision
determining that Livingston-Graham's transfer of' ce-
ment trains to L-T did not violate the collective-bar-
gaining agreement. Accordingly. we would find that
Respondent did not violate Section 8(a)(5) by unilat-
erally modifying the contract, and therefore did not
violate Section 8(a)(3) by transferring work as a result
of that modification.
Our colleagues, however, relying on an analysis of
Respondent's conduct in light of statutory law rather
than interpretation of the contract by the parties, find
that the contract has been unilaterally modified. This
finding is equally ill founded. Our colleagues cor-
rectly state that a unilateral removal of bargaining
unit work during a contract term is an unlawful
modification of the contract if the other party refuses
to consent to the modification. They assert that Local
420 refused to consent to Respondent's proposed
transfer of work and that Respondent therefore par-
tially abrogated the contract by transferring the work.
At the same time, they concede that the Union si-
lently accepted the grievance committee's decision
that Respondent did not partially abrogate the con-
" United Parcel Service, Inc., 232 NLRB 1114 (1977): Terminal Transport
Company, Inc., 185 NLRB 672 (1970): and Denver-Chicago Trucking Com-
pany, Inc.. 132 NLRB 1416 (961).
tract. Yet. clearly, since other alternative steps were
available to it, if the Union accepted the decision in
silence, it acquiesced therein and abandoned its ear-
lier opposition to Respondent's action and consented
to it.'2 Thus, our colleagues take the contradictory
position that the Union both consented and refused
to consent to the transfer of work. Small wonder that
they find it "unnecessary" to pass on the allegation
that Respondent violated Section 8(a)(5) by making a
midterm, unilateral modification of the contract.
As a result of the inability to find a violation of
Section 8(a)(5) and the failure to find evidence that
Respondent's transfer of work was motivated by
union animus. our colleagues are reduced to asserting
merely that Respondent's action was "inherently de-
structive of employee interest," in violation of Section
8(a)(3). Yet, there is nothing inherently unlawful in
an employer's securing lower wage rates for a certain
type of work. It is a legitimate objective of the collec-
tive-bargaining process. The action is unlawful only
in certain circumstances as when, for example. it is
taken for the purpose of avoiding a bargaining obliga-
tion. Our colleagues assert that Respondent trans-
ferred the work for such a purpose. Once again. they
are caught in a contradiction, for, if the Union con-
sented to Respondent's action, as our colleagues con-
cede, then the action was rendered lawful and we
cannot find it was illegally taken for the purpose of
avoiding the contract.
Accordingly, we cannot agree with any of our col-
leagues' conclusions. Assuming, arguendo. that their
position on the invalidity of the grievance committee
decision was correct. there still is no basis for finding
a violation here. Irrespective of the impartiality of the
committee decision, the Union clearly acquiesced in
it. By so doing. it concurred in Respondent's transfer
of the work. Thus, even if the transfer were a modifi-
cation of the contract, it was consented to by the
Union and was, therefore, not unlawful. For these
reasons, we must dissent.
12 Our colleagues dispute this conclusion. arguing that the I non's fallure
to contest the decision is not tantamount to consenting to the actions of
Respondent. But, by accepting the decision. the ULnion indicated compliance
with it and therefore its assent. In these circumstan, r them to say there
was no "consent" is reminiscent of the tale ot the e ipero)r who wore no
clothes. In addition. the Union agreed n the collectlve-bargaining contract
that questions about the contract would be settled by the join committee
Thus. the Union consented to the joint committee's procedures herein and is
hound by the joint committee's resolution,
APPENDIX
NOTI(CE To EMPLOYEE S
POSTED BY ORDER OF 11lE
NATI()ONAL LABOR RATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
775
DI)('ISIONS O() NATIONAI. I.ABOR RI.AIIONS BOARD
To organize themselves
To form. join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all such activities
except to the extent that the employees' bar-
gaining representative and employer have a
collective-bargaining agreement which im-
poses a lawful requirement that employees be-
come union members.
In recognition of these rights, we hereby notify our
employees that:
WF WILll NOT discontinue our cement hauling
operations at Livingston-Graham's Vernon and
El Monte locations or sell or transfer trucks to L-
T Transport. Inc.. at Redlands. or discontinue
any other work encompassed within our collec-
tive-bargaining agreement with Building Mate-
rial & Dump Truck Drivers ocal 420. Interna-
tional Brotherhood of Teamsters. Chauffeurs.
Warehousemen and Helpers of' America, with
the object of escaping the obligations imposed bv
the collective-bargaining agreement.
W Wll.1. NOI lay of or otherwise discriminate
against employees with regard to hire or tenure
of employment or any term or condition of em-
ployment for engaging in activities on behalf of a
labor organization or for engaging in activities
protected by Section 7 of the Act.
WtI Will. N() in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of any right guaranteed them by Section 7 of
the Act.
Wt. wtl.l. continue to recognize and, upon re-
quest, bargain collectively with Local 420 as the
exclusive bargaining representative of the follow-
ing unit:
All drivers of plant and pit trucks, two-axle
dump trucks, three-axle dump trucks, semis,
truck-trailer and semis, cement-trains. mixer
trucks, flats, flat truck-trailer and semis. mo-
bile service trucks, mobile sweeper driver.
warehousemen, automotive repairmen. batch
plant operators bunkermen, gas station opera-
tor and/or fueler, loaders, washers, greasers,
firemen, and chippers employed by Living-
ston-Graham within the geographical jurisdic-
tion of Local 420. excluding all employees
properly covered by other bargaining units, of-
fice clerical employees, technical and profes-
sional employees, guards, watchmen, and su-
pervisors as defined in the National Labor
Relations Act. as amended.
Wi. Wlt., resume the cement hauling opera-
tions tormerly carried on at Livingston-Gra-
ham's Vernon and El Monte locations transfer-
ring back to Livingston-Graham's Vernon and
El Monte locations the trucks which it previously
sold and transferred to L-T Transport Inc.
Wti wlL.t. offer to Louis H. Bering, Kris A.
Borum. William R. Cannon, Anthony Gian-
greco, Clarence Hudson. James Jaworski, Harry
D. Potts, Robert L. Reilly, Carmen Rosselli.
Robert L. Schaffer. Donald H. Thomas. and
James A. Wilson immediate and full reinstate-
ment to their former positions of employment as
drivers of cement trains, dismissing, if necessary,
anyone who may have been hired to perform the
work that they had been performing prior to De-
cember 31, 1975. or, if their former positions no
longer exist, to substantially equivalent positions
without prejudice to their seniority or other
rights and privileges previously enjoyed. and \wt
wrut. make them whole for any loss of pay they
may have suffered as a result of this discrimina-
tion. with interest thereon.
BRO(WN COMPANY; BROWN COMPANY. Lv-
IN(StON-GRAHAM DIVISION: BROWN CoM-
PANY, TRI-CITY CON(CRIT11 DiVISIoN: I,-T
TRANSPORr. IN(C.
l)E('ISION
SIAIIMINI (OiI I11F (CSF
Ri( IARD) 1). IAI' IIz/. Administrative Law Judge: his
case was heard at Los Angeles. (alifornia. on October 19.
20. 21. 26. 27. and 28 and November 21. 1977. The charges
in Cases 21 (A 14732 1 and 21 CA 14732 2 were filed
by Kris A. Borum through her attorney, Neil Herring, on
May 28. 1976. Th'e complaint. which issued on Februar
23. 1977. and was amended at the hearing. alleges that
Brown ompanN. herein called Brown: Brown Company,
Livingston-G raham Division. herein called Livingston-Gra-
ham: Brown C(ompany, l'ri-('ity Concrete Division, herein
called Tri-City: and L-T Transport. Inc., herein called .-T'
(the four entities are herein jointly referred to as Respon-
dent). violated Section 8(a)(1). (3). and (5) of the National
Labor Relations Act. as amended. Prior to the opening of
the hearing, the motion of Building Material & Dump
Truck Drivers Local 420. International Brotherhood of'
Teamsters. Chauffeurs. Warehousemen and Helpers of'
America. herein called Local 420. to intervene was granted.
Issues
The primary issues are:
I. Whether Brown. Livingston-Graham. Tri-City, and L-
T are so integrated as to constitute a single employer.
2. Whether Respondent violated Section 8(a)(5) of the
Act b transferring certain Local 420 bargaining unit work
776
BROWN COMPANY
(cement trains) from Livingston-Graham to L--i during the
term of a contract that Livingston-Graham had with Local
420.
3. Whether Respondent violated Section 8(a)(3) of the
Act by laying off or transferring to other classifications Liv-
ingston-Graham cement train drivers when the cement
train work was removed from the bargaining unit.
4. Whether a grievance committee resolution of the dis-
pute should be honored.
All parties were given full opportunity to participate, to
produce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel, the Respondent. and the C'harging Party.
Upon the entire record of the case, and from my observa-
tion of the witnesses and their demeanor. I make the fo)llow-
ing:
I:INDINGiS ) F( I
I. Ilt BSINI(SS ( RSPII)NI)INI
Brown is a Delaware corporation which, through its di i-
sions, is engaged in the manufacture and transportation of
rock, sand, gravel and ready-mix concrete products. I.iving-
ston-Graham is a division of Brown and is engaged in the
manufacture and/or transportation of rock, sand. gravel
and ready-mix products in Southern California from its
yard located. until early 1976. at 5500 North Peck Road, El
Monte. California. and thereafter at 13550 Live Oak Ave-
nue, Irwindale, California. Tri-C'ity is a division of Brown
and/or Livingston-Graham and is engaged in the manufac-
ture and/or transportation of rock, sand, gravel, and reads-
mix products in Southern California. I-T is a California
corporation wholly owned by Brown and is engaged in the
transportation of bulk cement in Southern California. Tri-
City and L-T share a principal business location at 8205
Alabama Street, Redlands, California. During the 12
months immediately preceding issuance of complaint,
Brown. Livingston-Graham, and Tri-City each purchased
and received goods and products valued in excess of
$50,000 directly from suppliers located outside of Califor-
nia. During the same period of time the purchase and re-
ceipt of goods of each of the companies comprising Respon-
dent from suppliers located outside of California if
combined would exceed $50,000. Brown, Livingston-Gra-
ham, Tri-City, and L-T each is an employer engaged in
commerce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.'
11. 11TH LABOR OR(iANIZAll(IONS IN()IVItI)
Local 420 is a labor organization within the meaning of
Section 2(5) of the Act. General Truck Drivers, Warehouse-
men & Helpers Local 467. International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called Local 467. is also a labor organiza-
tion within the meaning of Section 2(5) of the Act.
I These findings are based on a stipulation of all parties.
Ill. ilt A:(ilI) tN AIR I.AB)OR PRAt ICS
A. The Single Employer
Anton )yck is a corporate officer of Respondent. He is
assistant secretary of Brown, vice president of Livingston-
Graham and Tri-City, and treasurer and director of IL-T.
He reports to J. Watkins. who is general manager of Living-
ston-Graham and executive vice president of Livingston-
Graham. Tri-C'it), and -T. David Davis is director and
president of' I.-T as well as senior vice president and direc-
tor of Brown. Jlames Mauer is director, vice president. and
secretart of 1.-1' and Brown, as well as counsel of Brow n.
Merrill Nash is a director of L-i. as well as a director and
president of Brown. Donald Shields is assistant secretar o'
both 1-T and Brown. Gary Tompkins is controller for l.iv-
ingston-Graham. Tri-City, and 1.-T.
Dyck credibly testified and I find that Brown holly
ow ns and controls l.iingston-(iraham. I'ri-(its. and I.-T.
Thes are Brown's operating arms. l.ivingston-Graha n and
Tri-('it are divisions of Brown. and l.-T is wholl, owned
and controlled by Brown.
There is substantial functional integration between the
companies. A large portion of' L-T's operaltion ins olhes de-
livering bulk cement to Lixingston-Graham and Tri-('its
L-T trucks are housed at Tri-City's ard and L-'' uses l'n-
Cit's office. A l ivingston-iraham dispatcher dispatches
LA-'' cement trucks. livingston-(iraham and ri-City, per-
form clerical work for L-1. .-l trucks are sometimes re-
paired at Livingston-iraham and rl-C(it ards. Li ilng-
ston-Grahamn and [ri-City share a common sales force. he
companies do keep separate books and mans of the ser ices
that one company performs for the other are paid for pur-
suant to written agreements.
I)yck is the ke\ man in the labor relations policies of all
of the companies. lie handles labor contract negotiations
for l.tvingston-Gralham, Tri-('ity. and L-i. He is also in
charge of the grievance procedures from he second step
onward for those three companies. Local ,n..... ers consult
with Dyck when they want to discharge an e.,ployee and
think that a grievance might result. Dyck has direct super-
visory authority over employees of Livingston-Graham and
Tri-City.
The facts set forth below show that the companies have a
common labor policy with regard to the critical matters
involved in the instant case. L-T was formed solely to im-
plement Respondent's labor policy. Dyck wanted to have
Livingston-Graham and Tri-City cement trucks covered
under one labor contract rather than another. L-T was cre-
ated by Brown and purchased the Livingston-Graham and
Tri-City cement trucks. L-T has those trucks at a Tri-Cit
location so as to be covered by the contract it desired.
Separate corporations will he treated as a single employer
for the purposes of the Act. where, despite nominal separa-
tion. they are highly integrated with respect to ownership
and operation. Some of the principal factors considered are
interrelation of operations, centralized control of labor rela-
tions, common management, and common ownership or
control. Radio and Television Broadcast Technicians Local
Union 1264. IBEW v. Broadcast Service of Mobile. Inc.. 380
U.S. 255 (1965): Sakrete of Northern California, Inc., 137
NLRB 1220 (1962). enfd. 332 F.2d 902 (9th ('Cir. 1964), cert.
777
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied 379 U.S. 961 (1965). In the instant case, Brown,
Livingston-Graham. Tri-City, and L-T have common own-
ership, common officers, and common labor relations poli-
cies and the companies are functionally integrated. The cor-
porate fiction does not prevent a finding that they are a
single employer. Insulated Building Materials Co., Int., 162
NLRB 1105, 1109 (1967). 1 find that Brown, Livingston-
Graham, Tri-City, and L-T constitute a single employer
within the meaning of the Act.' Pepe's Inwood Packing Co..
Inc., 206 NLRB 642, 645 (1973).
B. The Operations of Livingston-Graham and Tri-Citv
Before the Advent of .-T
L-T began operations on January 2, 1976. I.-T was cre-
ated solely for the purpose of operating cement trains that
were formerly operated by l.ivingston-Graham and Tri-
City.
A cement train consists of a tractor and two torpedo-
shaped trailers in which bulk cement is carried. Cement is
one of the ingredients of concrete. Bulk cement is carried in
a cement train to a batch plant were it is mixed with rock,
sand, and water. Those ingredients are mixed in a mixer
truck and delivered as concrete. Respondent does not
manufacture cement but buys it from companies not in-
volved in this proceeding. Respondent is engaged in other
aspects of the concrete business, including the transporta-
tion of bulk cement.
Livingston-Graham has been in existence since 1960. It
employs between 400 and 500 employees and is engaged in
the business of mining and selling rock and sand products
and manufacturing and selling ready-mix concrete. It has 4
rock plants and I I or 12 batch plants in Orange. Los Ange-
les, and Ventura Counties. Some 200 of Livingston-Gra-
ham's employees are represented by Local 420 under the
terms of a contract between Rock Products and Ready
Mixed Concrete Employers of Southern California and Lo-
cals 420, 692, 495, 88, 982, 235, and 871, Teamsters. That
contract, which is referred to as the blue book, was effective
from 1974 through August 31. 1977. A succeeding contract
is still in effect. Livingston-Graham and Tri-City are each
members of the Rock Products and Ready Mixed Concrete
Employers of Southern California. Much of Livingston-
Graham's operation is within the jurisdiction of Local 420,
and Livingston-Graham is, through its membership in the
Association, bound by the blue book. The contract provides
that the employer signatories thereto are "separate parties."
It also refers to "the applicable Local Union." The recogni-
tion clause of the contract provides for a bargaining unit
consisting of those classifications set forth in article IV. sec-
tion I, of the contract and excluding all employees properly
covered by other bargaining units. That article sets forth 29
different classifications for truckdrivers and employees en-
gaged in related support functions. One of those classifica-
tions is that of "drivers of cement trains." The wage rate for
that classification was $7.73 effective September 1. 1974,
2 Though I have found that the companies comprising Respondent consti-
tute a single employer, that does not imply that the employees of each of the
companies do not comprise separate appropriate bargaining units. A I Fire
Protection, Inc,.. and Corcoran Automatic Sprinklers. Inc., 233 NLRB 38
(1977).
with a 90-cent-an-hour increase September I, 1975. and a
95-cent-an-hour increase effective September I. 1976.
Before L-T began operations on January 2, 1976, Living-
ston-Graham operated 7 trains and employed 12 cement
train drivers.') One of the cement trains and two of the driv-
ers were housed at Livingston-Graham's Vernon operation.
Six cement trains and ten drivers were housed in Living-
ston-Graham's El Monte (also referred to as Irwindale) lo-
cation. Both Vernon and El Monte are located within the
jurisdiction of Local 420. All of Livingston-Graham's ce-
ment train drivers were members of Local 420 and were
covered by the blue book.
Tri-City is engaged in substantially the same business as
Livingston-Graham. It has several plants in San Bernardino
and Riverside Counties and employs about 100 employees.
Tri-City's operations are located within the jurisictional
boundaries of Local 467 and Local 871, Teamsters. Some
50 or 55 of ITri-City's employees are covered under a con-
tract with Local 467. Those operations that are within Lo-
cal 871's jurisdiction are covered by an agreement between
Tri-City and Local 871 that the terms of Local 467's con-
tract are to govern. Before l.-T began operations, Tri-C('ity
housed two cement trains and four cement train drivers at
its Redlands location. Redlands is within the jurisidiction of
Local 467, and none of the cement trains were housed
within the jurisdiction of Local 871. The drivers were mem-
bers of Local 467 and covered by a collective-bargaining
agreement known as the orange book. The orange book is
an agreement from 1974 through August 31, 1977 (which
has been followed by a succeeding contract) between The
Rock and Gravel and Ready-Mix Concrete Companies and
Local 467. Tri-City is a signatory to that agreement.
When Livingston-Graham operated cement trains, they
were used primarily as part of l.ivingston-Graham's own
operation. In most cases the cement trains went to a cement
plant, received a load and returned to a Livingston-Grahanm
batch plant where the cement was mixed with rock, sand,
and water. The concrete was mixed in Livingston-Graham's
cement mixer trucks for delivery to Livingston-Graham
customers. In such situations, the cement company, instead
of using its own cement trains to deliver the cement to Liv-
ingston-Graham, credited the Livingston-Graham account
with the cost of the Livingston-Graham cement train that
was used. On such occasions, Livingston-Graham cement
trains were not used for deliveries to Livingston-Graham.
At such times. Livingston-Graham hired its cement trains
to the cement company, and the cement company used
them to make deliveries to other customers. In such situ-
ations, the cement company paid Livingston-Graham for
the use of the trucks at a rate set by the Public Utilities
Commission. Livingston-Graham was supplying its cement
trains "for hire" to the cement companies. All of the cement
train work was covered under the blue book agreement
with Local 420.
C. The Evolution of Industry Practices With Regard to
"For Hire" Contracts
Historically, there have been two separate categories of
employers who operate cement trains in the ready-mix con-
I Those 12 drivers are the alleged discriminatees.
778
BROWN ('()OMiPNNY
crete industry. In one category are the companies who are
engaged in various aspects of the read-mix business and
who use their cement trains in hauling cement for their own
needs. T'he ariious eamsters unions seek blue book, or-
ange book, or similar contracts from such companies. Be-
fore L-T took over Livingston-Graham's and Tri-(City's ce-
ment train operations. Livingston-Graham and Tri-('ity
were employers in this category. Livingston-Graham was
bound by the blue book and Tri-City was bound by the
orange book. The blue book set forth a payment schedule
for cement train drivers.
The second category of companies is made up of those
companies whose primary business is the hauling of bulk
cement for cement companies on a "for hire" basis. Such
companies do not haul their own products but in effect rent
out their equipment and drivers to the cement companies
for the cement companies to fill the needs of the cement
company. The Teamsters unions within whose jurisdictions
the for-hire companies are located seek to enter a special
"For Hire Cement Carriers Agreement" with such compa-
nies. The wage rate for cement train drivers under the for-
hire agreement is substantially less than the wage rate un-
der the blue book.
Companies such as Livingston-Graham worked under
something of a competitive disadvantage under the blue
book. Part of Livingston-Graham's work involved for-hire
arrangements with cement companies for the use of its ce-
ment trains. Livingston-Graham was competing in that re-
gard with companies who paid a lower wage rate under the
for-hire contract.' The hourly pay rate for cement train
drivers under the for-hire contract was $5.58 effective June
1, 1975. $5.98 effective July 1. 1975, and $6.20 effective
January 2. 1976.
Beginning about 1970 a new practice began in the indus-
try which made the situation of Livingston-Graham and
comparable companies much worse. Companies in the in-
dustry who were signatory to the blue book, the orange
book and equivalent contracts began to create or acquire
separate corporations. The parent company would transfer
its cement train operation to the new company and the new
company would enter into a for-hire agreement with the
Teamsters union in whose jurisdiction it operated. The new
company would continue to perform the same work that
the parent had previously done and carry cement needed by
the parent. However, the new company's sole business
would be operating the cement trains and it would bill the
cement companies for its services on a for-hire basis. While
the parent had previously received a credit from the cement
company against the purchase of cement, the new company
would simply bill the cement company for service. Under
this arrangement, the parent could have its own cement
needs filled at a lesser cost because the new company would
pay a lower wage rate to cement train drivers.
This pattern repeated itself over and over again.
One of the first to use the new system was Transit Mix
Concrete, a company that is party to the blue book. A sub-
' Minimum rates for cement hauling are set by the Public Utilities Com-
mission. The practice in the industry is to charge those minimum rates. The
PUC considers the latbor costs set forth in the for-hire agreement in deter-
mining rates.
sidiar. oothill Iransportation. entered into a for-hire
agreement with local 420. Succeeding tior-hire contracts
tollowsed until the current one which is eective from 1976
through 1979.
GC & Ready Mix is another parts to the blue book. It
acquired a nonunion company named CI L Trucking.
whose sole business was hauling cement for hire. (i & F
had a cement train with two drivers under the blue book.
CTL bought the cement trains, and the drivers who had
formerly driven them exercised their bumping rights and
stayed with G & F. In Februars 1971. ('TL entered into a
for-hire agreement with Local 420 and Teamsters Local
692. That agreement was modeled on the Foothill agree-
ment.
Sully-Miller is a party to the blue hook. It wholly owns
P & K Materials, Inc.. a for-hire cement hauler.
G & T Cement Transportation. Inc.. and l.ocal 420 are
parties to the for-hire agreement. G & I' is a subsidiar of
B & B Reads Mix Concrete. Inc. and B & B is signator to
either the blue book or the orange book or both.
Sisk American Trucking is a party to a tor-hire agree-
ment with Local 420. Sisk is a subsidiary of the Skyline
Concrete Sales Company. Skyline is a signatory to either
the blue book or orange book or both.'
Steve Gibson is vice president and general manager of
G & E Ready Mix. He sits on the negotiating committee
that bargains for the for-hire contract. He credibly testified
that there are 12 employees who are represented bh that
negotiating committee: that all of them are r-hire cement
haulers; and that at least 9 of the 12 are related to read\-
mix companies who are parties to the blue book. lie also
credibly testified that there are only some three read-l-mix
companies in the Southern Calilornia area who still operate
cement trains under the terms of the blue hook, and that,
between those three companies, they operate only six or
seven cement trains. He credibly estimated that those com-
panies haul 2 percent or less of the total cement in that
area.
Con Rock is engaged in the business of mining and trans-
porting rock. sand. gravel and Ready-Mix products. At one
time ('on Rock employed 10 cement train drivers who oper-
ated cement trains under the blue book and the orange
book, depending on the jurisdiction of the union in which
the cement trains were housed. In 1973 or early 1974. Con
Rock learned that there were several companies signatory
to the blue book that had signed the for-hire cement agree-
ment with Locals 420. 467. and 235. As those companies
had a competitive advantage. Con Rock approached the
various locals concerning the possibility of securing the
same treatment. ('on Rock acquired a dormant company
which it named Reliance Transport Company. Reliance
was wholly owned and controlled by Con Rock and the
president of C'on Rock was also the president of Reliance.
Con Rock activated Reliance in earls 1975 and negotiated
with the various locals for a for-hire agreement. Locals 420,
467, 235. and 871 executed a for-hire contract with Reli-
ance that was effective from June I. 1975. to May 30, 1976.
The findings with regard to G & T Cement Transportation. Inc.. and Sisk
Amencan Trucking are based on a stipulation relating to the 1976 contract.
The record does not indicate whether that contract superseded a prior con-
tract.
77'
l)I:'CISIONS ()O NATIONAL L.ABOR RELA'IIONS BOARD)
Two sheets were put on the back of the contract and the
Con Rock cement train drivers could sign to indicate
whether they wanted to drive for Reliance or stay with C(on
Rock. Two of' the drivers chose to go with Reliance and
eight opted to accept bumping rights within Con Rock.
Anton Dyck, who, among his other duties. is vice pres-
ident of l.ivingston-Graham, learned that Reliance had en-
tered into a for-hire contract shortly after it was signed. He
called Arthur Battle, the manager of industrial relations for
Con Rock (the parent of Reliance) and asked for details.
Battle told him that he had set up a company called Reli-
ance and had negotiated a bor-hire agreement. Dyck asked
for a copy of the contract and Battle sent him one.
Con Rock is a competitor of Livingston-Graham. When
Dyck received a copy of the contract between Reliance and
Local 420. he approached Local 420 with the request that
Livingston-Graham be afforded equal treatment.
D. The Tran.s/i'r o lthec Cement Train Work From
Livingston-Graham to1 L-T
All of Livingston-Graham's 7 cement trains were housed
in the jurisdiction of Local 420 (6 in El Monte and I in
Vernon) and all 12 cement train drivers were covered by the
blue book agreement between Livingston-Graham and Lo-
cal 420. Dyck on behalf of Livingston-Graham sought out
Oliver Traweek, secretary-treasurer of Local 420. in an at-
tempt to work out an arrangement whereby the cement
trains could operate under a for-hire contract rather than
the blue book.
Dyck and Traweek are both members of a grievance
committee under the blue book. Shortly before a grievance
committee meeting on April 17. 1975. Dyck met with Tra-
week. Dyck said that his company was going to form a
cement haul company and transfer the cement trains to that
company. He also told Traweek that he was aware that
Traweek had signed the for-hire agreement with all of his
company's competitors and that his company was the last
one not under a for-hire agreement. Dyck said that he
wanted to be competitive and that he wanted the same con-
tract the Union had given everyone else. Traweek replied
that Dyck's company was not the only one and Dyck asked
who the others were. Traweek said that he did not know
and that he would have to check his records. Traweek also
said that they would discuss the matter further.
Sometime in April, May, or June 1975. L-T was formed.
Dyck who was instrumental in the creation of L-T, cred-
ibly testified that L-T was created in order to follow the
industry practice of forming a separate company for the
hauling of cement and to obtain a for-hire cement train
agreement that would allow the Company to pay lower
wages to cement train drivers and be competitive with other
companies.
After several telephone conversations between Dyck and
Traweek in which the matter was discussed, Dyck sent Tra-
week a letter dated June 27, 1975, which stated:
We had discussed, some time ago. that we would be
setting up a cement hauling company called L-T
Transport. Inc. This company is now set up and we
would appreciate your sending us a Cement Hauler's
Agreement such as the one recentl1 executed b our
competitors.
If we need to get together for an, reason on this
matter, please let me know.
On July 15, 1975, Dyck met with l.ocal 420 Secretary-
Ireasurer Traweek and ocal 467 business representative
William Mann. Traweek represented l.ivingston-G(raham's
10 cement train drivers housed in El Monte and two cement
train drivers housed in Vernon. Mann represented Tri-
City's four cement train drivers housed in Redlands. Dyck
had retyped Reliance's for-hire contract and substituted L-
l's name for Reliance's. He gave copies to -'rraweek and
Mann.? He told them that he had copied the contract from
the Reliance contract to which Locals 420 and 467 were
parties. and that he would like them to sign the same con-
tract with L-T. Mann said that the Reliance contract made
some references to the blue book rather than Local 467's
orange book and he wanted that corrected. ' ck agreed.
'Iraweek asked whether [)yck would red-circie wage rates
and Dyck said he would not. The coniract hat Dck
brought did not have the last two pages n which drivers
could sign whether they wanted to go with the new com-
pany or not. Traweek said that the Reliance contract had
such pages for the drivers to sign and, in addition. the Reli-
ance contract had a listing of the other locals. Traweek also
said that it went smoother when the employees could indi-
cate whether they wanted to stay with the old company or
go with the new one and that it had worked well at Reli-
ance. Dyck agreed to put the two pages on the back of the
contract. Mann asked for a change in the pension plan lan-
guage and Dyck agreed. They discussed who would type
the contract and it was agreed that Dyck would do so. Tra-
week asked that there be a meeting with the drivers and
said that it had worked well with Reliance when the people
had a chance to sign for which company they wanted to
work.
Traweek testified that at this and all other meetings he
made it clear to Dyck that Local 420 would sign the for-hire
contract only if the affected employees agreed to such a
contract. Mann testified somewhat ambiguously but con-
cluded that the understanding was that employee consent
was needed. Dyck testified that there was a full and binding
agreement on the for-hire contract and that, while Traweek
never specifically said he would sign, the' fully discussed
the matter and reached an agreement. Dyck testified that he
had no outstanding recollection that he was told at the July
15 meeting that the Union would sign the contract if the
drivers agreed. He acknowledged. however, that he did give
a sworn statement on a prior date in which he averred that
at that meeting Traweek told him that he would sign a
contract if a majority of the drivers driving the cement
trains agreed to it. I credit Traweek's assertion that his
agreement to the for-hire contract was conditioned on ap-
proval by the drivers and no binding agreement was
reached on July' 15. 1975.
The agreement proposed by Dyck at the July 15 meeting
would have resulted in all the cement trains remaining
where they were. The Livingston-Graham drivers, all of
I Traweek testified that he did not receive a copy of that contract until the
following week. I credit Dyck's testimons It the contrary.
780
BROWN COMPANY
whom were members ofI Local 420. would have had the
option of transferring to L-T at the locations where they
were then working, with retention o their Livingston-Gra-
ham seniority. Tlhey also would have had the option of re-
fusing the transfer, remaining with Liingston-Graham and
humping into any slot that their seniority dictated pursuant
to the blue book. In a similar vein, the -Iri-('it cement
train drivers, all of whom ere members of Local 467,
would have remained at the same locations as employees of
L-T with their Tri-City seniority or. at their option, bumped
into available jobs at Tri-City under the orange book.
On July 24, 1975. Dyck met with I I of the 12 I.ivingston-
Graham cement train drivers in the conference room of the
Livingston-Graham office. Traweek. as well as James
Thompson, president of Local 420. was present. At the time
Dyck was under the mistaken impression that Traweek had
orally agreed to the for-hire contract. Dyck told the drivers
that Livingston-Graham was going out of the cement haul-
ing business and would no longer employ cement train driv-
ers. He handed each of the employees a copy of the for-hire
agreement. Annexed to the agreement were two pages for
the employees to sign. One of them read "We, the under-
signed, have read and fully understand the provisions of the
For Hire Cement Carriers Agreement and by affixing our
signatures agree to be covered by this said agreement as
employees of L-T Transport. Inc." The other page read:
"We. the undersigned. have read and fully understand the
provisions of the For Hire Cement Carriers Agreement and
by affixing our signatures decline to be covered by this said
agreement as employees of L-T Transport. Inc." Dyck told
them that was the contract L-T would have and there were
two pages at the end for the drivers to indicate whether they
wanted to go with L-T or stay with Livingston-Graham. As
Dyck assumed that Local 420 had agreed to the contract.
he told the employees that they could go to L-T with their
Livingston-Graham seniority or that they could stay with
Livingston-Graham and bump into available jobs based on
their seniority. It was understood that employees who re-
mained with Livingston-Graham and did not have suffi-
cient seniority to bump into an available job would be laid
off.
Traweek. who understood that the choice of transferring
to L-T with seniority would be available only if Local 420
agreed to the for-hire contract, told the employees that it
would be for their benefit if the for-hire contract was signed
and the cement trains were kept in the yard. He explained
the bumping procedure and said that junior men would lose
their jobs if the employees did not sign the for-hire contract.
Thompson told the employees they should sign because it
would keep the trains in El Monte. would save jobs and
would keep the jobs in Local 420. Both of them gave rea-
sons why the for-hire contract should be executed. Traweek
told the employees that if the Company did move the ce-
ment trains out of Local 420's jurisdiction and worked un-
der another agreement or nonunion, the employees would
not be able to go along with the trucks and that they would
have to bump in compliance with the blue book seniority
procedure. He explained the pension benefits that might be
lost. He also told them that he would not sign the agree-
ment until the members involved authorized him to do so.
One of the drivers asked for another meeting so that the
could have time to read the contract betfore making a deci-
sion. Another meeting was scheduled for July 31, 1975.'
On July 30. 1975, the day before Dyck's second meeting
with the Local 420 drivers was scheduled. DIck met with
Local 467 representatives and the drivers of the two cement
trains that were housed at ri-('itx. Local 467 Business
Representative Mann and Shop Steward Wilson were pre-
sent. Dyck told the employees about the trmation of L-I
and the proposed transfer of' the cement trains to L-. ie
explained the situation and gave them copies of the for-hire
contract. At that meeting, Local 467 agreed to sign the for-
hire contract. On August 13. 1975. L-T and L.ocal 467 ex-
ecuted that agreement. The agreement provided that ri-
('ity' cement train drivers who were assigned to and regu-
larly driving equipment transferred to L.-T would ha'e first
priority to transfer with such equipment into the emplo of
I.-T with their Tri-City seniority date but with the wages
and benefits provided in the for-hire contract. It was antici-
pated that Tri-City's two cement trains. ater being trans-
ferred to L-T, would remain at ri-(City's Redlands ard
and be driven by the former Tri-City cement train drivers.
In the event that a Tri-Cit 3 driver did not desire to work for
L-T, that driver would be given the option of bumping back
into Tri-City in whatever position his seniority dictated.
Dyck met with the Livingston-Graham cement train
drivers again on July 31. 1975. Traweek was not present but
Local 420's president. Thompson. was. Much of what was
said at the July 24 meeting was repeated. In addition. there
were a number of questions from employees concerning
such matters as pension rights. Thompson told the employ,-
ees that it was in the employees' best interest to sign the for-
hire agreement. Dyck asked them to sign one of the two
sheets at the back of the contract to indicate whether they
wanted to work for L-T or exercise bumping rights at .iv-
ingston-Graham. Some of the employees said they would
sign, others said they would not. and still others said they
would sign under protest. Dck told them then had until
.August II to make a final determination.'
Sometime after the July 31 meeting. Traweek held a
meeting with the .ivingston-Graham train drivers. He told
the employees that if Local 420 signed the for-hire agree-
ment, the cement trains would stay where they were and
that the employees would work for L-T with their Living-
ston-Graham seniority. He also told them, in substance.
that if Local 420 did not sign the agreement. the cement
trains would be taken out of Local 420's jurisdiction and
that the employees would lose out. A vote was taken and
7 Some of the employees testified that other things were said at the June
24, 1975. meeting, but it appears that they were confused ith regard to
what was said at the June 24 and the July 31 meetings.
I The contract by its terms was to be in effect through June 30, 1976 On
January 2. 1976, a new contract was entered into, which incorporated some
changes that had been negotiated in the dispatch procedure. The August 13
agreement named both Local 467 and Local 420 as parties, .ocal 420 did not
execute the agreement and therefore it did not apply to Local 420
9 Dyck credibly testified that at that time he believed that, b August I I.
the Public Uttilities Commission would allow the transfer of ILilingston-Gra-
ham's cement haul permit to I.-T In tact. the permit was not transferred
until December 1975 and. because of that, L-T did not begin operations until
January 2. 1976
781
I)l:('ISl()NS ()I NAI I()NAI I A()R R I A IONS H()OAR)
the emplo ees requested Iraeucek notl to sipn the for-hire
agreement.
On August I 1975. I raweek called l)vck and told him
that Local 42() would not sign the agreement. ()n that day,
DI)yck made the decision that the .ivingston-G(rahami ce-
ment trains would he relocated to Redlands. Dyck ac-
knowledged in his testimony that. i Traweek had agreed to
sign the agreement, the cement trains would have remained
where thev were and that the I.ivingston-(iraham drivers
would have had an opportunity to transfer to .-T with their
seniority.
Shortly after the August II conversation between Tra-
week and I)yck, I)Dck called L.ocal 467 Business Represent-
ative William Mann. Mann had already agreed to sign a
for-hire contract with .-T. Dyck told Mann that Local 420
was not going to sign the tfor-hire agreement. He also told
Mann that he anticipated bringing the cement trains that
were then in Local 420's jurisidiction into ocal 467's area.
and he asked Mann whether Mann would agree to it. Mann
replied that he would have to check with Local 420. Mann
then called Traweek and told him of the conversation with
Dyck. Traweek said that his people were not going to go
along with the for-hire agreement. Mann asked whether it
was all right it' Local 467 signed. Traweek replied that he
could not keep ocal 467 from signing and that he did not
see any way he could keep the Company from doing what it
wanted to with its equipment.
On August 13, 1975. Local 467 and L.-T signed a r-hire
agreement. The agreement named both Locals 467 and 420
but, as Local 420 did not execute the agreement. it did not
apply to it. The agreement had detailed procedures for hir-
ing at L-'. It provided in part that cement train drivers
who formerly worked for Tri-('ity would have first prioritN
to transfer with the equipment into the employ of L.-T with
their Tri-City seniority, but at the wage and benefit levels
contained in the for-hire agreement. The contract also pro-
vided that, as to any' equipment initially remaining unas-
signed, L-T would call Local 467 for references of qualified
individuals befbre filling the vacancies. with the selection of
any new hire being within the sole discretion of L-T.
By memo dated August 20. 1975. the Tri-City employees
were notified that all the hulk cement trains would he
parked at the Redlands facility and that any teamsters em-
ployed at Tri-City would have a one-time opportunity to
transfer into the new company without any loss of seniority.
The memo invited employees to apply and a number of
them did so. In September, the L-T jobs were promised to
applicants from Tri-City employees and everyone who had
been promised the job, except for one or two who changed
their minds, began work when L-T went into operation on
January 2, 1976. A total of 14 I.-T cement train drivers
were initially hired for 9 cement trains. At least one of the
employees had previously driven a cement train for Tri-
City and all of them had previously worked for Tri-City in
one capacity or another. Some of the Tri-City employees
who had been cement train drivers opted to bump back into
Tri-City and not accept the work with L-T.
In early November 1975, Local 871 signed a for-hire con-
tract with L-T. Local 871 had jurisdiction over Tri-City's
rock and batch plants in Upland. California, but no cement
trains had ever been based there. As of the date of the trial,
there still were no cement trains based within ocal 871's
jurisdiction. ocal 871's for-hire contract with .-T would
become meaningful only if cement trains were domiciled
within its jurisdiction. However. under the terms of that
contract, an argument could be made that Tri-City employ-
ees within Local 871's jurisdiction could transfer to L-T
with their Tri-City seniority, even though the Local 871
contract did not cover the geographical area in which L-T's
cement trains were housed. After L.-T's initial hiring. four
of the I.ocal 871 employees went to work for 1-1 with their
Tri-City seniority. They all joined Local 467. A grievance
wsas filed on the seniority issue and, unt' i , .contractual
grievance procedure, it was decided that those employees
could not maintain their ri-City seniority and would be
treated as new employees.
In a letter to I.ocal 420, dated December 30, 1975, Liv-
ingston-(iraham stated that the equipment it had used in
cement hauling had been acquired by L-'T and that Living-
ston-Graham would no longer employ cement haul driv-
ers."'
On December 31, 1975. all of the ivingston-G(raham ce-
ment trains were physically moved to Tri-Citi's Redlands
yard. On January 2 1976, L-l began its cement hauling
operation from Tri-City's Redlands yard with the former
Tri-Cit employees who had been promised jobs with L-''."
Before L-T began operations. Livingston-Graham em-
ployed 12 cement train drivers. They were Kris A. Borum,
Anthony Giangreco. James A. Wilson, William R. Cannon,
louis H. Bering. Harry D. Potts, Carmen Rosselli, Robert
L. Reilly, Robert L. Shaffer, Donald N. 'Ihomas. Clarence
Hudson and James Jaworski. On January 2. 1976, Dyck
told the employees in the presence of representatives of Lo-
cal 420 that I.ivingston-Graham had no more cement train
work and that the employees would have to exercise their
seniority rights for bumping. Borum, Jaworski and Hudson
did not have enough seniority to bump into any other posi-
tion and they were laid off on that day, The other nine
employees bumped into different jobs with Livingston-Gra-
ham. Some of those jobs involved less overtime than the
employees had previously made and some were to jobs that
the employees did not consider desirable. About 4 months
later, the three laid-off employees were recalled and given
non-cement train driver work.
The complaint does not allege that I.-T violated the Act
by its hiring procedures. The General Counsel stated on the
'O The letter stated:
We are, b this letter, confirming the previous notice to your organi-
zation and its members that because of economic reasons this company
is going out of the business of cement hauling and will not employ any
drivers for that purpose. In conversations with representatives of your
organization we communicated the fact that this would occur not later
than the end of the calendar year 1975. We have not been able, in a
number of meetings with you, to reach agreement concerning the effect
of this discontinuance of business upon those of your members that
were employed b us in the operation of the equipment used in the
hauling of cement.
The equipment that was used in the cement hauling has been ac-
quired by L-T Transport, Inc.. which is in the business of transportation
of bulk cement.
1l At a special meeting of the L-T b)ard of directors on December 30.
1975, the acquisition of Livingston-Graham equipment was authorized. L-T
purchased cement trains from Livingston-Graham and from Tri-City
through the parent Brown. Brown purchased them and sold them to L-T.
782
BROWN COMPANY
record that the complaint was not intended to attack the
hiring procedure or practice or the hiring that was actually
done by L-T when it began its cement train operation. The
General Counsel also stated:
What we're alleging is that there was a violation when
these trains were sent down there; that the trains
should go back status quo ante and the cement train
drivers who were driving the trains for Livingston-Gra-
ham at that time should be reinstated as the cement
train drivers.
But we are not alleging any violation as to the hiring
under the [L-T "for hire"] contract because we're not
attacking the contract.
The General Counsel took the position that he was not
contending that Respondent refused to bargain by failing
either to transfer cement train drivers to L-T under the for-
hire agreement or to directly hire the cement train drivers at
L-T under the for-hire agreement.
Livingston-Graham employee Schaffer testified that he
asked Dyck if any of the employees would be allowed to go
with the cement trains to Redlands if and when they were
moved, and that Dyck replied that, if he let one employee
go, he would have to give the same opportunity to the oth-
ers, so it would be company policy to allow no one to go.
Dyck testified that all he told Schaffer was that if Schaffer
wanted to work for L-T, he would have to go as a brand
new hire because the jurisdiction between the two locals
would not honor the seniority. I credit Dyck's version of the
conversation. Dyck also credibly testified that he never told
any cement train driver that that driver could not apply for
work at L-T. After the cement trains were moved. Schaffer
asked Dyck if he could transfer to Redlands. Dyck replied
that Schaffer could apply at Redlands and that, if he
needed a recommendation, he (Dyck) would probably give
him one.
From time to time before the formation of L.-T. Living-
ston-Giaham transferred equipment to Tri-City. removing
it from Local 420's jurisdiction. Livingston-Graham drivers
were not permitted to follow the equipment and could only
apply for work at Tri-City as new employees. That proce-
dure was followed whenever equipment was transferred
from a location where it was covered by one collective-
bargaining contract to a location where it was covered by a
different collective-bargaining contract.
E. The Grievances Filed by the Livingston-Graham Cement
Train Drivers
I. The grievance procedure under the blue book
As is set forth above, the blue book is a collective-bar-
gaining agreement between a number of employers through
the Rock Products and Ready Mixed Concrete Employers
of Southern California and Teamsters Locals 420. 692. 495.
88, 982. 235. and 871. The blue book contains a three-step
grievance procedure. In the first step an employee can take
up a grievance with his foreman, shop steward, or union
representative. With regard to the second step, the blue
book provides:
783
Article XI
GRIF, 4N( t PR()( Fl) R
Section I. Grievance Steps. Grievances shall be
taken up and processed in the following manner:
* . * . *
(b) STEP TWO. It the grievance is not settled in
Step One within two (2) working days. within ten (10)
working days thereafter it shall be presented in writing
through the Union to the Employ-er and the Emplo)-
ers' Negotiating (Committee: provided. houceer, that
grievances may be initiated b' the L nitn direct in
this Step Two. A committee of an equal number of
representatives of the Employers' Negotiating (Com-
mittee and the Union will meet within thirts (30)
working days thereafter to settle the grievance. his
Committee is authorized to adopt written rules of pro-
cedure b mutual agreement and such rules o proce-
dure shall be binding upon all signatories to this
Agreement. If a decision is reached b this committee,
it shall be final and binding upon all parties insolved.
The third step, which provides for the appointment of an
arbitrator, is applicable only i the grievance is not resolved
at the second step. The griexance committee's contractual
mandate is broader than that of the third step arbitrator.
The third step procedure states:
The power and authority of the arhitrator shall he im-
ited to the question presented to him., and he shall have
no power to add to or subtract from or modit anx
terms of this Agreement ....
The blue book also pro ides as follows:
Article XIII
HBR(AININ(i
Section i. Interpretation of Agreement. Questions
concerning interpretation or application of this Agree-
ment ma) arise from time to time and in the interest of
preventing misunderstandings an equal number but
not less than three (3) each from the Employers' Nego-
tiating Committee and the Union Negotiating Com-
mittee shall promptly meet at the request of either in
an attempt to resolve such question. but in anN event
within thirty (30) days, unless otherwise mutually ex-
tended.
Under the rules of procedure established by the grievance
committee, there is a chairman of the employer-members of
the association and a chairman of the union members. Prior
to each hearing, the employer and the union chairmen each
designate three members of the panel who decide the par-
ticular case. The chairmen alternate in presiding over the
hearings but they do not participate in the ote. The rules
of the committee provide that a tape recording shall be
taken of the proceedings and kept for 3 ears. However the
record is unclear as to whether tape recordings were taken
at the time the grievances in question were heard. raweek
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that tape recordings were kept only when there was
disagreement within the grievance committee and the griev-
ance had to go to the third step. In any event, there appears
to be no tape available relating to the instant case. The
decision of a majority of the grievance committee is final
and binding. If the grievance committee is evenly split, the
matter can go to the third step of the grievance procedure.
An official minute is made relating to each grievance
hearing. In addition, the association prepares a more de-
tailed minute which it distributes to its members. The asso-
ciation's minute is unofficial and the Unions are not parties
to it.
2. The grievances
On August 1, 1975, a grievance was filed by employees.
'['he grievance protested an anticipatory breach of contract.
Local 420 filled out a grievance from dated August 6, 1975.
which was presented to the grievance committee. The griev-
ance protested the eliminating of cement trains. At the time
of the grievance hearing on August 21, 1975, Livingston-
Graham was still operating the cement trains. The griev-
ance committee decided that there was no violation of the
collective-bargaining agreement.
L-'I began operations on January 2, 1976. and on that
date the Livingston-Graham cement train drivers either
bumped into different positions or were laid off. On Janu-
ary 24. 1975, the cement train drivers filed a grievance
which stated:
On or about January 2, 1976, without prior notice or
bargaining with the Union, Livingston-Graham, Inc.,
violated the 9/1/74-8/31/77 Rock Products and
Ready-Mixed Concrete Employers of Southern Cali-
fornia collective agreement, by virtually eliminating
the work and classification of its Cement Train Driv-
ers, and subcontracting (and/or otherwise transferring)
said work to other employers and/or locations.
The grievance was signed by Kris Borum and James A.
Wilson.
A grievance form dated February 2, 1976 was filed by the
Union with the grievance committee. It alleged that Living-
ston-Graham violated articles X and XIX of the agreement.
Article X of the contract provides for seniority rights. Arti-
cle XIX, which is entitled "Job Protection," provides as
follows:
It is the intent of the parties to this Agreement to
protect the work performed by employees in the bar-
gaining unit.
The Employer recognizes that it is important and
desirable to utilize its own equipment and drivers to
the greatest extent possible prior to using sub-haulers
and/or non-Company trucks.
The Union recognizes that under certain conditions,
such as those dictated by customer demands, equip-
ment requirements, daily dispatch determinations, ma-
terials to be hauled and similar factors, that sub-haul-
ers and/or non-Company trucks are necessary and
have been so utilized throughout the Industry for
many years.
The Employer, in accordance with the above, must,
however, determine the number, type and location of
its working equipment in conformity with its business
requirements. The Employer further must be able to
determine, in keeping with sound business practices.
the extent to which it will replace equipment which is
too costly to operate, obsolete or damaged.
Under these conditions, the Employer agrees that
sub-haulers and/or non-Company trucks will not be
utilized as a subterfuge to defeat the protection of the
bargaining unit work.
In keeping with the above, the Union recognizes
that the Employer will utilize such sub-haulers and/or
non-Company trucks as required by location and clas-
sification only after all the available (Companv trucks
at such locations and in similar classifications have
been initially dispatched.
The grievance was heard by the grievance committee on
February 29, 1976. Traweek was presiding cochairman at
that time. He did not participate in the deliberations or the
vote. The union representatives on the grievance committee
were Rafferty of Local 235, Lee of Local 692, and Musser
of Local 871. The compan representatives were Clemente
of Sully-Miller Contracting Company, Munson, the retiring
industrial relations director for the Association, and Sam-
son, his successor. Local 420 business representative, Tan-
berg, partially presented the case for the grieants. Before
the commencement of the hearing. Neil Herring requested
to appear and represent the grieving employees. He was
told by Cochairman Traweek that attorneys were not able
to represent either side before the grievance committee and
Herring was required to leave.
Tanberg began to present the union case. Grievant
Borum interrupted and said that she had not been fairly
represented by Tanberg and desired to present her own
case. The grievance committee decided that she could go
ahead and present her own case. She read article I, section
I, dealing with union recognition and argued that the Com-
pany had violated that part of the contract by failing to
negotiate over the movement of equipment to the other
company. She pointed to article IV of the contract which
deals with wages and argued that the Company had vio-
lated the agreement by not paying the proper rate for the
equipment when it moved its trucks to the other company.
In addition, she mentioned article XIX of the contract
which deals with job protection and argued that Living-
ston-Graham sold the equipment to L-T in violation of the
job protection clause: that it was a paper transfer of equip-
ment; that the two companies were related: and that there
was a violation relating to the bargaining unit that she be-
longed to. She also argued that there was a violation of'
article XX, which deals with the term of the contract.
Anton Dyck presented Livingston-Graham's case. He ar-
gued that Livingston-Graham could not compete with the
cement haul companies and that it was uneconomical for
Livingston-Graham to continue with those trucks. He told
the committee that Livingston-Graham sold its trucks to L-
T and negotiated an agreement in good faith with another
local. fHe pointed out that Livingston-Graham had unsuc-
cessfully attempted to negotiate an agreement with Local
784
BROWN COMPANY
420 and that the Companm had the right under the job
protection clause to sell the equipment.
After the presentation, the grievance committee deliber-
ated in executive session. They voted to deny the grievance.
John Clemente. who was a member of the grievance com-
mittee. credibly testified that he believed the six members of
that committee were unanimous in their decision. On his
notes of that meeting he wrote: "case of Union denied. mo-
tion carried unanimous." The only official written docu-
mentation of that decision is a minute that states "Moved
and seconded claim of union be denied. Carried." The min-
utes of the meeting prepared by the Association and distrib-
uted to its members read:
Case 2-6-13 Local 42() s Livingston-Graham
Dispute.
Kris Borum and James Wilson protest the Company's
disposal of the Cement Trains.
Contract ReJfrence: Article X. Section 3 and Article
XIX
Summary of Facts.
The union alleged that on January 2, 1976. the Com-
pany. without prior notice or bargaining, violated the
Labor Agreement by eliminating work in the Cement
Trains classification. The Company related that they
had sold the Cement Trains because they could no
longer competitively haul their own cement. The
equipment was sold to L. T. Transportation, who ne-
gotiated in good faith with another Local Union and
successfully bargained an Agreement with that Local.
They attempted to negotiate a similar Agreement with
Local 420 but when Local 420 refused to sign, the
equipment was all moved to the jurisdiction of the Lo-
cal which had signed an Agreement with L. T. Trans-
portation.
Decision.
Motion made and seconded that the claim of the
Union be denied.
Motion Carried.
F. Analysis and Conclusions
Respondent is a single employer consisting of Brown.
Livingston-Graham. Tri-City, and L-T. The different cor-
porate arms of Respondent have separate collective-bar-
gaining units. Livingston-Graham employed some 200 em-
ployees in a collective-bargaining unit covered by the blue
book. The blue book is a contract between the member
employers of the Rock Products and Ready-Mix Concrete
Employers of Southern California Association (including
association member Livingston-Graham) and seven Team-
sters locals, including Local 420. On December 31, 1975.
Respondent transferred seven pieces of equipment known
as cement trains from Livingston-Graham's El Monte and
Vernon yards to L-T's Redlands yard. The 12 Livingston-
Graham cement train drivers who had operated that equip-
ment were within the collective-bargaining unit covered by
the blue book. As a result of that transfer. Livingston-Gra-
ham had no further need for cement train drivers. Nine of
those drivers bumped into other positions with Livingston-
Graham and the three others ere temporaril I laid od untl
positions with Livingston-Graham opened to which the
drivers could assert their seniority bumping rights. he
complaint alleges that Respondent's actions constituted a
partial abrogation of the collective-bargaining agreement n
violation of the Act.
As the Board held in C & S Itdultrie. Inc.. 158 NIRB
454, 458 (1966):
While it is true that a breach of contract is not 1ipw,
acto an unfair labor practice.' it does not ftllosx from
this that where given conduct is of a kind otherwise
condemned by the Act. it must be ruled out as a.n un-
fair labor practice simply because it happens also to be
a breach of contract. Of course. the breadth of Section
8(d) is not such as to make an, default in a contract
obligation an unfair labor practice. flr that section. to
the extent relevant here. is in terms confined to the
" modification" or "termination" of a contract. But
there can be little doubt that where an employer uni-
laterally effects a change which has a continuing im-
pact on a basic term or condition of emplo, ment.
wages for example. more is involved than just a simple
default in a contractual obligation. Such a change
manifestly constitutes a "modification" within the
meaning of Section 8(d). And if not made in compli-
ance with the requirements of that section. It violates a
statutory duty the redress of which becomes a matter
of concern to the Board.
I Wilson & Co, Inc., 89 NLRB 310; .lmeruran I Jzrl, rcd Pr,,,, (orn
pan, 127 NLRB 701.
The Board has held that unilateral removal of hargaining
unit work during a contract term is the t pe of contract
modification proscribed by the Act. The Boeing (orlpat.
230 NLRB 696 (1977). Economic justification is not a de-
fense to such a violation. Oak Cliff-Golman Baking Com-
pan, 207 NLRB 1063 (1973). In The Unicr.sitv f C(hlicago,.
210 NLRB 190 (1974). enforcement denied 514 F.2d 942
(7th Cir. 1975). the Board held that a company iolated
Section 8(a)(5) and (2) of the Act by transferring work from
employees in one bargaining unit to employees in another
bargaining unit at the same location. However, the Board
made clear that a per se approach should be aoided and
that all factors should be considered, holding:
We are not here holding that the recognition clause
of a contract and the workplace practices underlying it
absolutely bar an employer's removing work embodied
in the contract classifications from a particular union's
unit during the contract term. It is well established that
an employer may, after the necessary bargaining, ter-
minate work done by the union's members at a par-
ticular location and subcontract it.' transfer it else-
where,' or introduce different methods of operation at
the same location,6 even though such action is taken
during the contract term and results in the elimination
or reduction or reduction in size of the unit involved.
Notwithstanding these results, such action is permitted
as an accommodation to management's responsibility
for determining the allocation of the firm's capital in-
vestment'....
4 f.. e.g., Florida Texas Freight, Inc, 203 NLRB 509: Ho mel (Corp
ration. 197 NLRB 471
7X5
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C (L. e.g.. American Needle & ,Novielt ( ompanv. 206 NLRB 534: Wel-
ironic Company, 173 NLRB 235.
'Cf.. e.g., Atlanta Daid/ World. 192 NLRB 159.
7As the Board noted in Arneriian Needle. upra. it is the extent to
which the decision to subcontract or relocate work involves "a signifi-
cant investment or withdrawal of capital affecting the scope and ulti-
mate direction of the enterprise" that determines whether management
is obligated to bargain about the decision itself. The effects of such
decision on the unit involved must, of course, normally be bargained
about.
The pivotal question in this case is whether Respondent's
transfer of the cement train work from Livingston-Graham
to L-T constituted a modification of the blue book or sim-
ply an action permitted by the blue book. If the action was
a permitted one, there can be no finding that Respondent
unilaterally modified the contract in violation of Section
8(a)(5) of the Act. The threshold question is therefore one
of contractual interpretation.
The complaint alleges that the work was transferred in
retaliation for Local 420's refusal to consent to a midterm
modification and that Respondent violated Section 8(a)(3)
of the Act by laying off the 12 employees from their cement
train driver jobs in retaliation for Local 420's refusal to
assent to such modification. The evidence does not support
such a "retaliation" theory. Respondent acknowledges that
it desired to have the cement train work done under the for-
hire agreement, rather than the blue book, and that it set up
L-T to do such work. However, Respondent also made ev-
ery effort to keep the work within Local 420's jurisdiction,
to keep the cement trains housed where they always had
been, and to use the Livingston-Graham cement train driv-
ers to perfbrm the work for L-T. Livingston-Graham con-
sistently urged Local 420 to execute the for-hire agreement
and urged the employees to go along with that agreement.
The employees involved would not permit Local 420 to ex-
ecute the for-hire agreement and Respondent transferred
the cement trains to Redlands. The transfer was in con-
lormity with industry practice and was undertaken solely
for economic reasons. The General Counsel has not estab-
lished that Livingston-Graham harbored any animus
toward Local 420 or the Livingston-Graham cement train
drivers, and there is no basis for a finding that Respondent's
actions were in retaliation for Local 420's refusal to agree to
a midterm modification. If Respondent had the contractual
right to move the jobs from Livingston-Graham to L-T.
there could be no finding that Respondent violated Section
8(a)(3) of the Act. If, on the other hand, the transfer was a
unilateral midterm modification in violation of Section
8(aX5) of the Act, then a Section 8(a)(3) violation might be
argued on a derivative theory. Cf. Helrose Bindery, Inc. and
Graphic Arts Finishing. Inc., 204 NLRB 499, 504 (1973).
The core question remains one of contract interpretation.
The decision of the United States Supreme Court in
United Steelworkers of America v. Warrior & Gulf Naviga-
tion Co., 363 U.S 574, 578 580 (1960). gives guidance in the
interpretation of collective-bargaining agreements. The
Court held:
The collective bargaining agreement states the rights
and duties of the parties. It is more than a contract it
is a generalized code to govern a myriad of cases which
the draftsmen cannot wholly anticipate. See Shulman.
Reason, Contract, and Law in Labor Relations, 68
Harv. L. Rev. 999. 1004 1005. The collective agree-
ment covers the whole employment relationship. It
calls into being a new common law the common law
of a particular industry or of a particular plant. As one
observer has put it:
"... [lit is not unqualifiedly true that a collective-
bargaining agreement is simply a document by
which the union and employees have imposed upon
management limited, express restrictions of its other-
wise absolute right to manage the enterprise, so that
an employee's claim must fail unless he can point to
a specific contract provision upon which the claim is
founded. There are too many people, too many
problems, too many unforeseeable contingencies to
make the words of the contract the exclusive source
of rights and duties. One cannot reduce all the rules
governing a community like an industrial plant to
fifteen or even fifty pages. Within the sphere of col-
lective bargaining, the institutional characteristics
and the governmental nature of the collective-bar-
gaining process demand a common law of the shop
which implements and furnishes the context of the
agreement. We must assume that intelligent negotia-
tors acknowledged so plain a need unless they stated
a contrary rule in plain words."
The mature labor agreement may attempt to regulate
all aspects of the complicated relationship, from the
most crucial to the most minute over an extended pe-
riod of time. Because of the compulsion to reach agree-
ment and the breadth of the matters covered, as well as
the need for a fairly concise and readable instrument.
the product of negotiations ( the written document) is.
in the words of the late Dean Shulman, "a compilation
of diverse provisions: some provide objective criteria
almost automatically applicable: some provide more
or less specific standards which require reason and
judgment in their application: and some do little more
than leave problems to future consideration with an
expression of hope and good faith." Shulman, supra, at
1005. Gaps may be left to be filled in by reference to
the practices of the particular industry and of the var-
ious shops covered by the agreement....
When a collective-bargaining agreement is viewed in that
context, it is clear that the parties to the contract are in a
better position than anyone else to interpret their own con-
tract. Such interpretation can be part of the collective-bar-
gaining process. The statutory policy is clearly enunciated
in Section 203(d) of the Act, which states:
Final adjustment by a method agreed upon by the
parties is hereby declared to be the desirable method
for settlement of grievance disputes arising over the
application or interpretation of an existing collective-
bargaining agreement....
See also Gateway Coal Co. v. United Mineworkers of Amer-
ica, 414 U.S. 368, 377 (1974).
In the instant case, the parties to the blue book have
provided for a three-step grievance procedure. Under the
second step of that procedure, three representatives of the
786
BROWN (()OM '\NN
employer's negoliatinlg comnnlittee and three representallpcs
of the Unions attempt to resolve grievances. I here is no
neutral party. It the Employer's representatllies and the
Union's representatives cannot agree on the resolulionl ol a
particular grievance. that grie\ance goes to the third step.
under which an arbitrator makes the decision. It' the repre-
sentatives of the Employers and the Unions come to an
agreement, that agreement is binding. As is discussed in
more detail below, a binding decision by the grievance conm-
mittee can be treated by the Board as an arbitral determi-
nation of the dispute. However. the grievance committee
has other aspects as well. Under the contract. the parties
are represented by their respective grievance comnmilttee
members. All grievance proceedings are extensions of' the
collective-bargaining procedure. However. ill situations
such as this, the representatives of the parties on the gries,-
ance committee very literally continue the bargaining pro-
cess." The members of the grievance committee are in a
uniquely favorable position to deal with grievances in the
context of a continuing bargaining relationship. I he are
personally involved in the industry and can use their knowl-
edge of industry practices and the law of' the shop to inter-
pret contract provisions. Both the Employers and the
Unions have delegated to their respective representatives
power to bind them with regard to the interpretation ot the
contract. When a majority of the representatives of the Em-
ployers and the Unions agree to the resolution of a dispute.
that dispute is ended. Only where a majority cannot agree
can the third step of the grievance procedure be invoked.
Article XIX of the blue book, entitled "Job Protection."
the text of which is set forth above, deals in part with the
use by the Employer of noncompany trucks and the right of'
the Employer to determine the number. type, and location
of its working equipment. There is a serious question
whether that clause contemplates the transfer of trucks out
of the bargaining unit, but an argument to that effect can be
made. In the past, Livingston-Graham has transferred
equipment to locations outside the jurisdiction of the blue
book and there is no indication that Local 420 has protested
such transfers. In addition, industry practices which have
evolved over the years and which are described in detail
above have to be considered. Local 420 and the other
unions under the blue book have permitted Respondent's
competitors to set up satellite corporations for the purpose
of performing cement train work under the for-hire agree-
ment.
A majority of the grievance committee, which consisted
of both the Employers' and the Union's representatives,
agreed that Respondent's actions in transferring the equip-
ment from Livingston-Graham to l.-T and the consequent
loss of work to the bargaining unit did not violate the con-
tract. Local 420 is bound by the grievance committee's deci-
sion and, in effect, Local 420 has agreed through its repre-
sentatives on the grievance committee that Respondent has
not violated the contract. It appears that Local 420 has
accepted the situation in that it has not filed charges with
l2 Indeed, under art. XIII of the blue book, which is entitled "Bargaining."
members of the Employer's negotiating committee and the U nion's negotiat-
ing committee are authorized to meet to attempt to resolve questions con-
cerning the interpretation of the agreement.
the Board and thClc is lio indltai;llll Iati it hi s tiken alt,
action to set aside 1the colililtlcc's d1cvlvi11. (''. ] / I-ir'
Proli,,m. Ic.. 233 NIRB 38 ( 1977). .s both Respondent
and Local 420 ha\ in ct1lect ag1lled thr- utlgl their rcprlesn-
taties that te contract i.a not beenll \,olited. the dispute
has been resolved and Ia tindliii tlha Respodllentl h1a unilatl-
erally partially abridged the cntract is not v, arrinted. I
find that Respondent h nol olated the Act .i .alleged
the complaint.
In reaching this conclusion. it Is noted that the cnliplaiinl
alleges a relusal to bargain li the I ion I he elntirl
issue in both the grie; ncte iand the nl.air lahbor pr.tclte
case is wihether Respondent \iolated the conllrlt b! renl.O -
Ing equipment and work litlol the bairgaininig Uilt I lie
Ulnion is the rcpreseltati Ot tl\e n lil/p,1 c s ii qulcsInlltsll .it
that nature Ihere is no Illegiatiol II the oI111nAiit Il1,11 11t
l ni on unlitirl, repres ented tle emplol ecs. nid theire iti
showing that there is a ot flict f mintcrcts hetsseeri the cim
ployees and ocal 42(0 that vsotild preclle I al 420 troint
representing thni. m
F ven it the decision of the C-Ier ,ince con)litte ls\ %i ced
as an arbitral detertnlitnatiln t the dlisput I.,lethci than
negotiated agreemenlt b the representalltics it hel prities
to the contract. the comlplaint it iU be hmlllssted
In SpwIlhcrg Ahmu/ili f turing ( ¥ipam .I 11 2 N I RB I lt
i1955) the Board held that it ould deler 1 .in irbitr.ltlio
award where 'the proceedings , ppear to ha\c been lair ;Id
regular, all parties had agreed to be hound. and the CdeCIsion
of' the arbitration panel is not clearl repugninanto the pi
poses and policies ofl the Act." In cases tollos mig NpiI/u rg,.
the Board has held that the arbitral process is not a proper
substitute for Board determination in certain tpes of ases.
See (Croatian Fraternal Union o -intcri(a. 232 NI. RB 107(1
11977). However. where the key issue in a case is one of
contractual interpretation, the arbitral process is particu-
larls appropriate for the resolution of the dispute.
Roy Rohinson, Inc. d/h/la R,, Rohitmon ( hevrol/ct 228
Nl.RB 828X 1977). uas a case in, ol, ing prearhbitration de-
ferral under (o/hi r Insn/acd 1It ire,, I f(ulJ / and t esern
Srmslem. ( . 192 NI.RB 837 (1971). rather than a postarbi-
tration deferral under S./)l/t'erg. H,isever. much ot the ra-
tionale in Ri Rohsino,,l i; applicable to the instanit case. In
Roy Rohin.smn. the complaint alleged that a compan \ o-
lated Section 8(a)(5) and (I) of the Act b closing its bod
shop and discharging certain employees without notice to
or bargaining with the union. The contract proided that
the employer should have the exclusive right to discharge
° The employees filed oine unfair representation charge asgaimlt I o.al 420
on August 12. 1975. n Case 21 CB s383. and another oin ".i', 2. 1976. n
(are 21 CB 5697 Both charges were dimlsed hb he Regin.l D)irector t r
Region 21. (ivi1 prweedings n Lt, Angeles Superior Court ( Case (
157166 are pending in cases brought bh the emplo,)ees against both Re.pon-
dent and Local 420 By finding thai Local 420. through It, representalives.
agreed that Respondent had nt violated the contracl. I am not timpling
that Local 420 ailed in its duts to airly represent the emploees In Ford
Motor Co v. Huffmun. 345 i S. 330 a 33R 19531. the nted States Su-
preme Court discussed a union's dul o fair represenitatiln sasng
A wide range of reasonahleness must he allowed a iatutory bargaining
representative n sering the unit it represents. suhbect alwass t com-
plete gx d faith and hnesl, i purpose n the exerctle ,it it dlscrelon
Nothing n this Decision s intended to) ipis that l.cal 420 lacked "com-
plete good faith and honestis it purp.se"
DECISIONS OF NATIONAL ABOR RELATIONS BOARD
employees. There was a contract provision entitled ". . .
Sub-Contracting." but that provision dealt only with em-
ployees working off hours. The contract contained a griev-
ance procedure culminating in arbitration that was appli-
cable to "Any complaint arising among the employees in
the shop over the interpretation of this Agreement relative
to hours, wages, overtime, working conditions, discrimina-
tion, classifications or other terms of this Agreement ... ."
There appeared to be no contract provision dealing directly
with the close of part of the operation. A serious argument
could be made that the issue in question in that case related
solely to a statutory right and not a contract right. How-
ever, a majority of the Board held that the case should he
deferred to arbitration, saying [228 NLRB at 830]:
As to the dissenters' argument that there is no con-
tract provision which could even arguably give color to
Respondent's conduct, we disagree. The Supreme
Court said in United Steelworkers of America v. War-
rior & Gulf Navigation Co., 363 U.S. 582 583, that an
order to arbitrate a particular grievance should not be
denied "unless it may be said with positive assurance
that the arbitration clause is not susceptible of an inter-
pretation that covers the asserted dispute. Doubts
should be resolved in favor of coverage." We believe
that the dispute here falls within that standard and is
therefore properly referable to the parties' arbitration
procedure.
The Board has held that Joint Committee decisions can
be treated as arbitration awards. Denver-Chicago Trucking
Comparny, Inc., 132 NLRB 1416 (1961); United Parcel Ser-
vice, Inc., 232 NLRB 114 (1977). The absence of a neutral
member in a biparty panel equally divided between man-
agement and union representatives does not preclude a de-
ferral. Terminal Transport Company, Inc., 185 NLRB 672
(1970).
The issue of whether Respondent violated the contract
,was considered by the grievance committee. The statutory
issues involved in the instant case are raised only if there is
a factual finding that Respondent violated the contract. As
the Board held in Roy Robinson, 228 NLRB at 828:
. .. [I]f the arbitrators should decide that the contract
terms did give the Employer such right to close part of
its operation and discharge certain employeesj. then
the Employer's conduct would also perforce have been
lawful under the Act.
The grievance committee was fully competent to make
that factual finding and the grievance committee found that
the Union's claim that the contract had been violated did
not have merit.
Counsel for the Charging Party contends in his brief that
the "arbitration" was irregular for a number of reasons. I
am unable to agree with the Charging Party's contentions.
Much of the argument deals with the underlying supposi-
tion that there was a conflict of interest between the em-
ployees and the Union. The employees may not have been
pleased with the manner in which Local 420 represented
them, but the Union was their lawful representative and
this case does not involve any 8(b)(IXA) "unfair representa-
tion" issue. Livingston-Graham and Local 420 were parties
to the contract and the employees were not. The key dis-
pute was whether Livingston-Graham violated the contract
by removing equipment and work from the bargaining unit.
Local 420, as a party to that contract, was involved in the
grievance presentation, and Local 420 makes no contention
that the proceedings were unfair or irregular. Some of the
members of the grievance committee did have an interest in
the proceeding because the companies and the unions they
came from had for-hire contracts. However, there is no con-
tention that the grievance committee members were neu-
tral. They were involved in the same industry as L.ivingston-
Graham and were bound by the same contract. Decisions
involving contract interpretation has an impact on all par-
ties to the contract, including those parties who are sitting
on the grievance committee. By its very nature. a grievance
committee of this kind cannot be completely disinterested.
Yet, the Board has not required the traditional judicial dis-
interest from such parties in deferring to their decisions.
The entire grievance procedure is part of the collective-bar-
gaining process and the fact that the members of the com-
mittee are involved in that process does not disqualify them
from resolving disputes of this nature. Nor is the integrity of
the grievance committee's decision undermined by the fact
that the proceedings were inftbrmal. The proceedings can be
fair without the presence of professional arbitrators and at-
torneys and without a written or taped record. An extensive
written decision is not required where it is clear that the
grievance committee considered and decided the relevant
issues. The grievance committee proceeding is in large mea-
sure an exercise in self-government under the contract.
Where contract interpretation is involved, such self-deter-
mination by the party's representatives is to be encouraged
and strict judicial rules should not be required.
The Charging Party's counsel argues in his brief that the
employees did not agree to be bound by the grievance com-
mittee's decision. However. Local 420. as a party to the
contract, did agree to be bound. Local 420 was the statu-
tory representative of the employees and, therefore, the em-
ployees were bound through their representative. In addi-
tion. the employees through Kris Borum did participate in
the presentation to the grievance committee.
In sum, I find that the proceedings of the grievance com-
mittee appear to have been fair and regular, all parties had
agreed to be bound, and the decision of the grievance com-
mittee was not clearly repugnant to the purposes and poli-
cies of the Act. The grievance committee found that Living-
ston-Graham had not violated the contract, and that
finding should be honored by the Board. In the absence of
a finding that Respondent did violate the contract, the com-
plaint must be dismissed and I so recommend.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 420 is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent did not engage in the unfair labor prac-
tices alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
788