Brown Co.; L-T Transport, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1986

278 N.L.R.B. 783 (N.L.R.B. 1986)

BROWN CO. 783
Brown Company ; Brown Company, Livingston-
Graham 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-14732-1 and 21-
CA-14732-2
28 February 1986
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 30 July 1979 the National Labor Relations
Board issued its Decision and Order" in this pro-
ceeding. The Board held that the Respondent2 vio-
lated Section 8(a)(3) and (1) of the Act by transfer-
ring cement hauling work from its Livingston-
Graham Division to its wholly owned subsidiary,
L-T Transport, Inc., in order to escape its wage
obligations under the existing bargaining agreement
between Livingston-Graham and Building Material
& Dump Truck Drivers Local 420, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Intervenor in this
proceeding. The Board declined to adopt Adminis-
trative Law Judge Richard D. Taplitz' dismissal of
the complaint. His action was based on his deferral
to the ruling of a joint labor-management grievance
committee. The Board found that the members of
the joint committee had interests directly in con-
flict with those of the grievant and refused to
defer.3
The Respondent petitioned the United States
Court of Appeals for the Ninth Circuit to review
the Board's Decision and Order, and the Board
cross-applied to enforce its Order. On 2 September
1981 the court issued its decision,4 granting in part
the Respondent's petition for review, denying the
Board's cross-application for enforcement, and re-
manding the case to the Board for further proceed-
ings in light of the decision. The court held that
the Board did not abuse its discretion when it re-
fused to defer to the joint labor-management griev-
ance committee's ruling. However, the court stated
that the' Board erred by judging the Respondent's
actions on the basis of statutory mandates, rather
than examining the collective-bargaining agreement
between Livingston-Graham and the Union to see
whether that agreement allowed the transfer of
i 243 NLRB 769 (1979), Members Penello and Murphy dissenting.
2 The Respondent in this action is a single employer which consists of
Brown Company; Brown Company, Livingston-Graham Division, Brown
Company, Tri-City Concrete Division, and L-T Transport, Inc
3 243 NLRB at 770.
4 Unpublished opinion, Judge Murphy dissenting
work at issue. The court was of the opinion that
article XIX of the contract arguably allowed the
work transfer and that, if it did, the Respondent
had not violated the Act. The court remanded the
case to the Board for reconsideration, leaving to
the Board's discretion whether a further remand to
a newly composed joint labor-management griev-
ance committee would be appropriate.-5 The court
also noted that it left to the Board the question of
what impact, if any, the Supreme Court's recent
opinion in First National Maintenance Corp. v.
NLRB, 452 U.S. 666 (19'81), had on the case.
Accepting the Ninth Circuit's opinion as the law
of this case, we affirm our prior decision not to
defer to the decision of the joint committee and we
now consider the question whether article XIX6 of
the contract privileged the transfer of work outside
the bargaining unit.
Since the Ninth Circuit's remand the Board de-
cided Milwaukee Spring Division, 268 NLRB 601
(1984) (Milwaukee Spring II), and Otis Elevator, 269
NLRB 891 (1984). The analysis in Milwaukee
Spring II is premised on the well-established propo-
sition that an employer may not make unilateral
changes in mandatory subjects of bargaining prior
to a good-faith impasse in bargaining. We also
noted that Section 8(d) adds the further require-
ment that, when there is a contract in effect, the
employer may not make changes in the mandatory
terms and conditions in the contract without the
consent of the union.
In that case, we found that the contract did not
contain any prohibition to the transfer of work and
therefore the employer did not violate Section
s We note that none of the parties seeks a remand to a new point labor-
management grievance committee
6 Art. XIX provided that-
It is the intent of the parties to this Agreement to protect the work
performed by employees in the bargaining unit
The Employer recognizes that it is important and desirable to uti-
lize 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, equipment requirements, daily dis-
patch determinations, materials to be hauled and similar factors, that
sub-haulers 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, de-
termine 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 Employ-
er will, utilize such sub-haulers and/or non-Company trucks as re-
quired by location and classification only after all the available Com-
pany trucks at such locations and in similar classifications have been
initially dispatched
278 NLRB No. 113
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(5) when it relocated work after bargaining to
impasse.
In the instant case, article XIX begins with the
statement that: "It is the intent of the parties to
protect the work performed by employees in the
bargaining unit." To that end, Livingston-Graham
promised to use its own equipment and drivers to
the greatest extent possible, and not to utilize non-
company trucks as a subterfuge to defeat the pro-
tection of bargaining unit work. The Union, in
turn, recognized that customer demands, equipment
requirements, daily dispatch determinations, materi-
als to be handled, and similar factors might require
the use of noncompany trucks, but it is clear that
the parties contemplated resort to noncompany
trucks only in those situations where company
truck resources had been exhausted. Livingston-
Graham also retained the power to decide where
and in what numbers the company trucks would be
assigned, and the power to replace trucks which
had become too old, too expensive, or too dam-
aged to operate. Neither of these retained powers
authorized Livingston-Graham to eliminate an
entire job classification and transfer all cement
hauling work out of the bargaining unit.
The Respondent nevertheless argues that indus-
try practice and past practice sanction its transfer
of the cement hauling equipment. Past practice
could affect our interpretation of the collective-bar-
gaining agreement in two possible ways. First, as-
suming arguendo that article XIX is ambiguous,
past practice could shed light on the actual mean-
ing of an unclear provision. Second, if we find that
article XIX, on its face, did not allow the Respond-
ent's transfer of the cement hauling work, the Re-
spondent could argue that the Union and its mem-
bers, by their past acquiescence in the face of simi-
lar transfers, have lost their rights to complain in
this instance . This second theory is based on a
waiver-or estoppel-type argument.
The Respondent's evidence of past practice is in-
sufficient to sustain either of these theories. There
is some evidence in the record that, in the past,
Livingston-Graham had transferred single pieces of
equipment outside the geographical jurisdiction of
Teamsters Local 420. However, as the Charging
Party points out, the record is bare of an example
of a previous transfer of an entire category of
equipment. Thus, the Respondent cannot point to
any evidence of an accepted practice that would
support its argument that the contract allowed its
transfer of the cement hauling work. Similarly,
since there is no evidence that the Respondent ever
previously accomplished a work transfer like the
one at issue here, the Respondent cannot success-
fully argue that past acquiescence by the Union or
its members estops them from protesting this work
movement.
As for industry practice, there is considerable
evidence in the record that other companies cov-
ered by the Blue Book agreement had set up
cement hauling subsidiaries which then had signed
"For Hire" agreements with the Teamsters local
representing their cement train drivers. However,
there is no evidence that any one of these compa-
nies had unilaterally transferred its cement hauling
work to the subsidiary in midterm of the contract,
without the consent of the union involved. Perhaps
more importantly, it is difficult for us to understand
how, under the circumstances of this case, one
union's failure to assert its rights under a contract
with one employer would estop the members of an-
other union from asserting rights under an identical
contract with a different employer.
Neither the industry practice nor the past prac-
tice pointed to by the Respondent convinces us
that article XIX permitted the Respondent to trans-
fer the cement hauling work. Rather, we hold that
the Respondent violated its job protection promises
by moving the work from Livingston-Graham to
L-T Transport. See A-1 Fire Protection, 273 NLRB
964 (1984).
Thus the transfer of Livingston-Graham's cement
hauling work to L-T Transport was a unilateral
midterm modification of the collective-bargaining
agreement between Livingston-Graham and Team-
sters Local 420. However, an inquiry into whether
the Respondent violated the Act by this action
does not end with this finding, for only a unilateral
midterm modification of a mandatory subject of
collective bargaining violates the Act. Allied Chem-
ical & Alkali Workers Local 1 v. Pittsburgh Glass
Co., 404 U.S. 157 (1971). Therefore, we must deter-
mine whether the transfer of the cement hauling
work was a mandatory subject. We hold that it
was.
In Otis Elevator (269 NLRB at 892) we held that
... the critical factor to a determination
whether the decision is subject to mandatory
bargaining is the essence of the decision itself,
i.e., whether it turns upon a change in the
nature or direction of the business, or turns
upon labor costs . . . .
As found in our first decision, the Respondent
transferred the cement trains out of the unit "for
the sole purpose of escaping from its wage obliga-
tions under the existing collective-bargaining con-
tract." 243 NLRB at 771. Therefore this was a
mandatory subject of bargaining and the Respond-
BROWN CO.
ent could not transfer the cement trains without the
consent of the Union.7
As to whether the Union consented, the record
is clear that the union representative told the Re-
spondent that it would agree to the transfer of
work only if the employees agreed. The employees
did not agree and the Union never consented to a
modification of the contract. It is true that the
Union did not appeal the decision of the grievance
committee to the next step in the grievance proce-
dure.
From this it is arguable that, by participating in
the grievance procedure and acquiescing in the de-
cision of the joint committee; the Union, in effect,
consented ,to midterm modifications herein. See 243
NLRB 769, 775 (then Members Penello and-
Murphy dissenting). However, the Union's failure
to press the grievance does not end the statutory'
issues here. For as the Ninth Circuit held:
The fact that the Union has decided to abide
by the committee's decision and has not joined
the employees in filing the unfair labor prac-
tice charges does not affect our decision. A
union may adopt whatever position it chooses
regarding an employer's actions or an arbitra-
tion decision. However, sections 7 and 9(a) of
the National Labor Relations Act do not pro-
hibit employees from filing unfair labor prac-
tice charges against their employer in an at-
tempt to require the employer to fulfill its stat-
utory duty to bargain with the union before in-
stituting changes in the terms and conditions
of employment. [Alfred IV. Lewis v. NLRB, 587
F.2d 403, 409 (9th Cir. -1978).]°
In addition, to the extent this argument construes
the grievance-arbitration procedure as a continu-
ation of the bargaining process, it'is settled Board
policy that bargaining history will establish a
waiver of the right to bargain on a mandatory sub-
ject only if-
[I]t can be said from an evaluation of the prior
negotiations that the matter was "fully dis-
cussed" or "consciously explored" and that the
Union "consciously yielded" or clearly and
unmistakably waived its interest in the matter.
C & C Plywood, 148 NLRB 414, 416 (1964), affd.
385 U.S. 421 (1967); see A-1 Fire Protection, supra;
American Distributing', Co. v. NLRB, 715 F.2d 446
(9th Cir. 1983); Park-Ohio Industries v. NLRB, 702
F.2d 624 (6th Cir. 1983). In the instant case the
record of that "bargaining" is virtually nonexistent
7 Member Babson agrees with this conclusion as consistent with the
Supreme Court's opinion in First National Maintenance Corp., and with
any of the views expressed in the Board's decision in Otis Elevator.
8 Member Babson accepts the court's opinion as the law of the case
785
and therefore it simply cannot be said that the
Union relinquished its right to the benefits of its
bargain in article XIX. Moreover, the Board has
long held that during the term of a contract a
union is not required to bargain at all about mid-
term changes.
In summary, the Respondent has transferred
work out of the bargaining unit in the face of a
work protection clause. The transfer turned entire-
ly on a desire to reduce labor costs and was there-
fore a mandatory subject of -bargaining. In these
circumstances the Respondent could not implement
this transfer without the consent of the Union and
the Union did not consent to this transfer. Accord-
ingly, we hold that the Respondent violated Sec-
tion 8(a)(5) when it unilaterally discontinued its
cement hauling operations and transferred this
work to L-T Transport.
In its prior decision the Board held that the Re-
spondent's conduct was "inherently destructive of
employee interests" (quoting from Ruston & Mer-
cier Woodworking Co., 203 NLRB 123 (1973)). And,
relying on Los Angeles Marine Hardware Co., 235
NLRB 720 (1978), the Respondent's conduct was
found to be violative of Section 8(a)(3). We now
find that since the Respondent violated' Section
8(a)(5) the remedy we order here makes it unneces-
sary to pass on whether the Respondent's conduct
was "inherently destructive." We will therefore
modify the previous Conclusions of Law and
Order to delete the finding of an 8(a)(3) violation.9
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
5.
"5 . By discontinuing its cement hauling oper-
ations at Livingston-Graham's locations in Vernon
and El Monte, California , and selling and transfer-
ring its trucks to L-T Transport, Inc. at its Red-
lands, California location while the Blue Book col-
lective-bargaining agreement was still in effect and
doing so without the consent of Local 420, Re-
spondent acted in derogation of its duties under
Section 8(d) of the Act' and thereby violated Sec-
tion 8(a)(5) and (1) of the Act."
OR DER
It is ordered that the Board's Order in this pro-
ceeding (243 NLRB 769 (1979)) is amended as fol-
lows.
1. Insert the following as paragraph 1(a) and re-
letter the remaining paragraphs accordingly.
9 The Respondent requests that it not be held liable for backpay for
the time period during which it relied on the joint labor-management
grievance committee's decision We deny this request.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(a) While its current collective-bargaining
agreement with Building Material & Dump Truck
Drivers Local 420, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is in effect, discontinuing its cement
hauling operations at Livingston-Graham's Vernon
and El Monte locations and selling and transferring
its trucks to L-T Transport, Inc. at Redlands, with-
out Local 420's consent."
2. Delete paragraph 1(b).
3. Substitute the attached notice for that original-
ly issued by the Board.
MEMBER DENNIS , concurring.
I accept the Ninth Circuit decision as the law of
the case and consequently would not defer to the
joint committee's decision. I also agree with the
fording that article XIX of the parties' contract is a
valid work-preservation clause prohibiting the
transfer of the cement hauling work. Accordingly,
I would find that the Respondent, by transferring
the work during the term of the contract, modified
a specific term contained in the contract without
obtaining the Union's consent, and thus the mid-
term modification of the contract violated Sections
8(a)(5) and 8(d) of the Act.' See my dissent in
DeSoto, Inc., 278 NLRB 788 (1986).
I I also agree that it is unnecessary to decide whether the Respondent's
conduct was inherently destructive of employee interests
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
To refrain from any and all such activities
except to the extent that the employee's bar-
gaining representative and employer have a
collective-bargaining agreement which imposes
a lawful requirement that employees become
union members.
WE WILL NOT, while our current collective-bar-
gaining agreement with Building Material & Dump
Truck Drivers Local 420, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is in effect, discontinue our
cement hauling operations at Livingston-Graham's
Vernon and El Monte locations or sell or transfer
our trucks to L-T Transport, Inc. at Relands, with-
out Local 420's consent.
WE WILL 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 collective-bar-
gaining agreement with Building Material & Dump
Truck Drivers Local 420, Internaitonal Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, with the object of escaping
the obligations imposed by the collective-bargain-
ing agreement.
WE WILL NOT in any other manner interfere
with, restrain, or corece employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
WE WILL continue to recognize and, on request,
bargain collectively with Local 420 as the exclu-
sive representative of the employees in 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-trsins, 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, fire-
men, and chippers employed by Livingston-
Graham within the geographical jurisdiction of
Local 420, excluding all employees properly
covered by other bargaining units, office cleri-
cal employees, technical and professional em-
ployees, guards, watchmen, and supervisors as
defined in the National Labor Relations Act,
as amended.
WE WILL resume the cement hauling operations
formerly carried on at Livingston-Graham's
Vernon and El Monte locations transferring back
to Livingston-Graham's Vernon and El Monte lo-
cations the trucks which it previously sold and
transfered to L-T Transport, Inc.
WE WILL offer to Louis H. Bering, Kris A.
Borum, William R. Cannon, Anthony Giangreco,
Clarence Hudson, James Jaworski, Harry D. Potts,
Robert L. Reilly, Carmen Rosselli, Robert L.
Schaffer, Donald H. Thomas, and James A. Wilson
BROWN CO. 787
immediate and full reinstatement to their former any loss of pay they may have suffered as a result
positions of employment as drivers of cement of this discrimination , with'interest.
trains, dismissing , if necessary, anyone who may
have been hired to perform the work that they had BROWN COMPANY ; BROWN COMPA-
been performing prior to ' December 31, 1975 , or, if NY, LIVINGSTON-GRAHAM DIVISION;
their former positions no longer exist, to substan- BROWN COMPANY, TRI-CITY CON-
tially equivalent positions without prejudice to CRETE DIVISION; L-T TRANSPORT,
their seniority or other rights and privileges previ -' INC:
ously enjoyed,- and WE WILL make them whole for
I