Cauthorne Trucking

National Labor Relations Board - Board Decisions

Jun 19, 1981

256 N.L.R.B. 721 (N.L.R.B. 1981)

CAUMORNLKN TRUCKING 721
Henry Cauthorne, an Individual, t/a Cauthorne
Trucking' and Drivers, Chauffeurs and Helpers
Local Union No. 639, a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America. Case 5-CA-
10344
June 19, 1981
DECISION AND ORDER
On June 12, 1980, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in support of the Administrative Law
Judge's Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, only
to the extent consistent herewith.
The Administrative Law Judge found that Re-
spondent did not violate Section 8(a)(5) of the Act
by unilaterally ceasing payments into the Union's
health and welfare fund and pension fund as al-
leged in the complaint. He therefore recommended
that the complaint be dismissed in its entirety. We
disagree.
The facts are not in dispute. Cauthorne testified
that in late 1971 or early 1972 he signed a collec-
tive-bargaining agreement with the Union and that
at the time he did not know whether his employees
supported the Union. At the same time, he also
signed union health and welfare fund and pension
fund trust agreements and began making payments
into these funds on behalf of his employees. In
February 1973, Cauthorne signed another collec-
tive-bargaining agreement, which had been negoti-
ated by the Union and the Construction Contrac-
tors Council, Inc. (CCC), and which was effective
May 1, 1972, to April 30, 1975. In addition, he ex-
ecuted another set of trust fund agreements.
In July 1975, prior to the completion of negotia-
tions between the Union and CCC on a new con-
tract, Cauthorne, at the Union's request, signed an
interim agreement whereby he agreed to the terms
of 11 articles which had been proposed by the
Union as part of its contract with CCC. Subse-
quently, CCC and the Union agreed on a contract
effective August 1, 1975, through July 31, 1978.
Cauthorne did not execute this final CCC contract.
He continued, however, to make payments into the
trust funds for his employees, including the period-
ic increases required by the CCC contract. During
' The name of Respondent appears as amended at the hearing.
256 NLRB No. 115
the 1975-78 contract period, Cauthorne also dealt
with the Union with regard to grievances. At no
time during the 1975-78 contract period did Cauth-
orne assert to the Union that he was not bound by
the CCC contract.
In the summer of 1978, Cauthorne told the
Union he would not sign a "new contract." Upon
the expiration of the 1975-78 contract, he unilater-
ally ceased making payments into the trust funds.
Cauthorne did not subsequently sign another con-
tract with the Union.
The Administrative Law Judge found that, since
Cauthorne had not actually executed the 1975-78
contract between CCC and the Union, he was not
obligated to make payments into the union trust
funds as required by that agreement. He found, in-
stead, that any payments made subsequent to the
end of the 1973-75 contract, which Cauthorne had
executed, were gratuitous and could be terminated
at will. The Administrative Law Judge concluded,
therefore, that Cauthorne's failure and refusal to
make trust fund payments after July 31, 1978, did
not violate Section 8(a)(5) and (1) of the Act.
Contrary to the Administrative Law Judge, we
conclude that, although Cauthorne did not actually
sign the final 1975-78 contract between CCC and
the Union, he nevertheless was bound by its terms.
Thus, Cauthorne executed the interim agreement
proffered by the Union, he subsequently imple-
mented a significant portion of the 1975-78 con-
tract by making payments into the trust funds, and
he dealt with the Union on grievances. Finally,
Cauthorne never asserted to the Union that he was
not bound by the 1975-78 contract. In our view,
by these actions, Cauthorne engaged in a course of
conduct which manifested an intention to adopt
and to be bound by the 1975-78 contract. Haber-
man Construction Company, 236 NLRB 79, 85-86
(1978), enfd. 618 F.2d 288 (5th Cir. 1980).
Furthermore, the Board has held that health and
welfare and pension fund plans which are part of
an expired contract constitute an aspect of employ-
ee wages and a term and condition of employment
which survives the expiration of the contract.
Harold W. Hinson, d/b/a Hen House Market No. 3,
175 NLRB 596 (1969), enfd. 428 F.2d 133 (8th Cir.
1970). Thus, an employer may not unilaterally alter
payments into such plans unless: (I) the changes
are made subsequent to the parties' reaching a bar-
gaining impasse and the union has rejected the
changes prior to the impasse,2 (2) the employer
demonstrates that, at the time the changes were
made, the union did not represent a majority of the
I Allen t: Brd 11, etc., and Caravelle Boat (Company, 227 NLRH 1355
{ 1977)
CAU1HORNE TRUCKING 21
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit employees or that the employer had a good-
faith doubt, based on objective considerations, of
the union's continuing majority status,3 or (3) the
union has waived its right to bargain regarding the
changes. 4
Cauthorne does not contend that negotiations be-
tween him and the Union had reached an impasse
when he ceased making the trust fund payments. 5
In addition, there were three consecutive contracts
between Cauthorne and the Union, lawful on their
face, and Cauthorne does not assert that, at the
time he unilaterally ceased the payments, the Union
did not represent a majority of his employees or
that he entertained a good-faith doubt of the
Union's continuing majority status. He does ques-
tion, however, the Union's majority status by con-
tending that the Union did not represent a majority
of his employees at the time he executed the first
contract with the Union in late 1971 or early 1972.
Regardless of the Union's actual status at that time,
this defense must fail.
Thus, it is well settled that "Section 10(b) is ap-
plicable to a refusal-to-bargain defense that the bar-
gaining relationship was unlawfully established" by
the employer's recognition of a minority union. B.
C. Hawk Chevrolet, Inc., 226 NLRB 527, 529
(1976), enfd. 582 F.2d 491 (9th Cir. 1978). Accord-
ingly, as Cauthorne's asserted unlawful recognition
of the Union occurred more than 6 months prior to
the filing of the charge, he may not raise this de-
fense at this late date.
Additionally, Cauthorne asserts that under the
trust fund agreements his obligation to make pay-
ments into the funds depends upon the existence of
a current contract between him and the Union. 6
Contrary to this assertion, the trust fund agree-
ments merely refer to collective-bargaining agree-
ments for the purpose of setting the amount to be
paid into the fund for each covered employee.
a Ri.sh Equipmenr Company, 173 NLRB 943 (1968), enfd. 407 F.2d 1098
(4th Cir. 1969) A collective-bargaining agreement, lawful on its face,
raises an irrebuttable presumption that the union's majority status contin-
ued through the end of the contract. This presumption continues beyond
the expiration of the contract, but becomes rebuttable. Of course, the
burden of rebutting this presumption is upon the party that would do so
Eastern Washington Distributing Company, Inc., 216 NLRB 1149 (1975)
4 Coppus Engineering Corporation, 195 NLRB 595 (1972) (Member Jen-
kins dissenting on other grounds).
b Cauthorne, however, does assert that the parties reached an impasse
at their single meeting in January 1979. We agree with the Administra-
tive Law Judge's characterization of this meeting as one of an "explora-
tory nature" On the entire record, we find that Cauthorne and the Union
did not reach an impasse in those negotiations.
a Cauthorne also raises the related issue of whether the trust fund
agreements underlying the expired contract, which we note are of indefi-
nite duration, meet the requirements of Sec. 302(c)(5)(B) as construed in
Moglia v. Geoghegan, 403 F.2d 110 (2d Cir. 1968), cert. denied 394 U.S
919 (1969). The Board has consistently held that Sec. 302(cXS)(B)'s re-
quirement that trust fund payments be made pursuant to a written agree-
ment are met by a trust fulnd agreement underlying an expired contract.
See Peerless Roofing Co., Ltd., 247 NLRB 500 (1980); Waynes Olipe Knoll
Farms, Inc. d/b/a Wayne's Dairy, 223 NLRB 260, 264 (1976).
These references, by themselves, are insufficient to
relieve an employer of its obligation to bargain
with its employees' exclusive bargaining repre-
sentative regarding changes in the employees'
wages or terms and conditions of employment.
Furthermore, the health and welfare fund trust
agreements contain no other language which might
limit an employer's obligation to bargain regarding
cessation of payments into the fund. We find,
therefore, that Cauthorne violated Section 8(a)(5)
and (1) of the Act by ceasing such payments on
behalf of his employees. 7
The pension fund trust agreement, however, con-
tains the following additional language:
IT IS UNDERSTOOD AND AGREED that at the
expiration of any particular collective bargain-
ing agreement by and between the Union and
any Company's obligation under this Pension
Trust Agreement shall terminate unless, in a
new collective bargaining agreement, such ob-
ligation shall be continued.
In our view, this language expressly waives both
the employees' right to receive the benefits of pen-
sion fund contributions and the Union's right to
bargain regarding an employer's cessation, at the
expiration of a contract, of payments into the pen-
sion trust fund absent a renewed agreement to con-
tinue such payments. Westinghouse Electric Corpora-
tion, 188 NLRB 885 (1971); cf. Wayne's Olive Knoll
Farms, Inc., d/b/a Wayne's Dairy, supra at 264-265.
As Cauthorne did not agree to make such pay-
ments beyond the end of the 1975-78 contract, he
was privileged, under the terms of the pension trust
fund agreement, to cease payments into that fund.
For this reason, we find that Cauthorne's refusal to
continue payments into the Union's pension fund
did not violate Section 8(a)(5).
CONCLUSIONS OF LAW
1. Henry Cauthorne, an Individual, t/a Cauth-
orne Trucking, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. Drivers, Chauffeurs and Helpers Local Union
No. 639, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
7 Even assuming, arguendo, that Cauthorne had not adopted the 1975-
78 contract, we would find that Cauthorne violated Sec. 8(a)S) and (1)
by ceasing the health and welfare payments Thus, we note that the par-
ties had two prior collective-bargaining agreements and that Cauthorne
has not attempted to rebut the presumption of majority status which
flows from these earlier contracts Since these contracts included provi-
sions for payments into the union trust funds, under Harold W Hinson,
etc, upru, Cauthorne was obligated to continue to make these payments
into the Union's health and welfare fund.
_ _
CAUTHORNE TRUCKING 723
America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following unit is appropriate for the pur-
poses of collective bargaining: 8
All truck drivers and helpers employed by Re-
spondent at its Washington, D.C. location, but
excluding all office clerical employees, guards
and supervisors as defined in the Act.
4. By unilaterally ceasing payments into the
Union's health and welfare trust fund upon the ex-
piration of the 1975-78 collective-bargaining agree-
ment between Respondent and the Union, Re-
spondent engaged in an unfair labor practice within
the meaning of Section 8(a)(5) and (1) of the Act.
5. The above-described unfair labor practice is
an unfair labor practice affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice, we shall order Respondent to
cease and desist therefrom, and to take certain af-
firmative action designed to effectuate the policies
of the Act. We shall order that Respondent make
the employees whole by paying all health and wel-
fare trust fund contributions, as provided in the ex-
pired collective-bargaining agreement, which have
not been paid and which would have been paid
absent Respondent's unlawful unilateral discontinu-
ance of such payments."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Henry Cauthorne, an Individual, t/a Cauthorne
8 The Administrative Law Judge made no finding regarding the appro-
pnate unit. We find that the unit alleged by the General Counsel in the
complaint is an appropriate unit. In this regard, we note that such unit is
consistent with that recognized by the parties in their collective-bargain-
ing agreements and that these agreements described the bargaining unit
with sufficient clarity. Furthermore, it is clear, by virtue of the parties'
practice under these collective-bargaining agreements, that the parties in-
tended to and in fact entered into a real bargaining relationship. Accord-
ingly, we find this case distinguishable from Ace-Doran Hauling d Rigging
Co., 171 NLRB 645 (1968), and Bender Ship Repair Companv. Inc. and
Bender Welding and Machine Company. Inc., 188 NLRB 615 (1971).
9 Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide for interest at a fixed rate
on fund payments due as part of a "make-whole" remedy. We therefore
leave to further proceedings the question of how much interest Respond-
ent must pay into the benefit fund in order to satisfy our "make-whole"
remedy. These additional amounts may be determined, depending upon
the circumstances of each case, by reference to provisions in the docu-
ments governing the fund at issue and, where there are no governing pro-
visions, to evidence of any loss directly attributable to the unlawful
action, which might include the loss of return on investment of the por-
tion of funds withheld, additional administrative costs, etc., but not col-
lateral losses. See Merryweather Optical Company, 240 NLRB 1213, 1216,
fn. 7 (1979).
Trucking, Washington, D.C., his agents, successors,
and assigns, shall:
i. Cease and desist from:
(a) Unilaterally ceasing payments into the
Union's health and welfare trust fund.
(b) In any like or related manner interfering
with, restraining, or coercing his employees in the
exercise of the rights guaranteed them in Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Make his employees whole by paying all
health and welfare trust fund contributions, as pro-
vided in the expired collective-bargaining agree-
ment, which have not been paid, and which would
have been paid absent Respondent's unlawful uni-
lateral discontinuance of such payments, and con-
tinue such payments until such time as Respondent
negotiates in good faith to a new agreement or to
an impasse.
(b) Post at his Washington, D.C., place of busi-
ness copies of the attached notice marked "Appen-
dix." '° Copies of said notice, on forms provided by
the Regional Director for Region 5, after being
duly signed by Respondent, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by him for 60 consecutive days thereaf-
ter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found herein be, and they
hereby are, dismissed.
10 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Jugdment of the United States Court of Appeals Fnforcing an
Order of the National Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that I
CAUTHORNE TRUCKING 723~~~~~~~~~~~~~~~
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have violated the National Labor Relations Act, as
amended, and has ordered me to post this notice.
I WILL NOT unilaterally cease making pay-
ments into the Union's health and welfare trust
fund.
I WILL NOT in any like or related manner in-
terfere with, restrain, or coerce my employees
in the exercise of the rights guaranteed them in
Section 7 of the Act.
I WILL make my employees whole by
paying all health and welfare trust fund contri-
butions, as provided in the expired collective-
bargaining agreement, which have not been
paid, and which would have been paid absent
my unilateral discontinuance of such payments,
and continue such payments until such time as
I negotiate in good faith to a new agreement
or to an impasse.
HENRY CAUTHORNE, AN INDIVIDU-
AL, T/A CAUTHORNE TRUCKING
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: Drivers,
Chauffeurs and Helpers Local Union No. 639, a/w Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the
Union or the Charging Party, filed a charge on Decem-
ber 11, 1978,1 against Henry Cauthorne, an Individual,
t/a Cauthorne Trucking, herein called Cauthorne Truck-
ing, the Company, or Respondent, alleging that the
Company had violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act, as amended. The Regional
Director issued a complaint on July 23, 1979, alleging
violations of Section 8(a)(1) and (5) of the Act by Re-
spondent's discontinuance of contributions to the Union's
health and welfare fund. In the interim, on January 10,
1979, and apparently again on June 4, 1979, the Regional
Director issued a letter or letters dismissing this charge
on the basis of insufficient evidence to sustain the allega-
tions. The dismissal or dismissals were appealed by the
Union. On July 13, 1979, the Acting Regional Director
revoked the dismissal or dismissals and determined that a
complaint should issue alleging that Respondent unilater-
ally discontinued certain fringe benefit payments around
September 1978 in violation of Section 8(a)(l) and (5) of
the Act. On July 31, 1979, the Office of Appeals of the
General Counsel issued a letter dismissing parts of the
appeal and noting that, "since the Acting Regional Di-
rector has by letter of July 13, 1979, revoked the earlier
June 4, 1978, Regional decision with respect to the . . .
8(a)(5) allegation concerning the Employer's discontinu-
ance of certain fringe benefit payments [health and wel-
fare fund] established in the prior contract, further pro-
Unless specified otherwise, the principal events herein took place in
late 1978 and early 1979.
ceedings on appeal with respect thereto were no longer
warranted."
At the hearing in this matter, over the objection of Re-
spondent,2 the complaint was amended to allow as addi-
tional violations of Section 8(a)(1) and (5) that Respond-
ent had ceased payments to the Union's employee pen-
sion fund.
Respondent's timely answer admitted the service and
jurisdictional allegations and the status of the Union and
noted that it had ceased the payments, but denied that it
had violated the Act in any manner.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearing held in Washington, D.C., on January 7
and February 11, 1980. Respondent and the General
Counsel filed briefs which have been carefully consid-
ered. The principal question in this case is whether Re-
spondent was bound to continue to make contributions
to health and welfare and pension funds after July 31,
1978. The answer to this question is determined by
whether there was a contract between the Union and
Cauthorne Trucking from 1975 through 1978. Under all
the facts and testimony in this case, the answer to this
latter question is that there was no such contract and
therefore the first question must also be answered in the
negative. Accordingly, this complaint and charge will be
dismissed.
On the entire record in this case, including the exhibits
and testimony, and on my evaluation of the witnesses, I
make the following:
FINDINGS OF FACT
I. COMMERCE FINDINGS AND UNION STATUS
Respondent is a sole proprietorship engaged in hauling
materials by truck in the metropolitan Washington area,
including Washington, D.C., Maryland, and Virginia,
and has been so engaged for approximately 30 years. Re-
spondent's principal place of business and its trucking
terminal are located in Washington, D.C. During the rel-
evant period Respondent furnished services valued in
excess of $50,000 to areas outside the District of Colum-
bia.
Henry Cauthorne concedes, and I find, that he is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
Respondent, at the hearing and in its brief, argues that, since the
complaint as originally issued spoke only of the health and welfare fund,
and since the letter from the Office of Appeals did not mention the em-
ployee pension fund, such was dismissed by the Office of Appeals and
apparently by the Regional Director. However, the actual wording of the
dismissal by the Office of Appeals is: "Except as to the Employer's dis-
continuation, in or about September 1978. of certain fringe benefit pay-
ments, the appeal is denied." The later enumeration of the health and
welfare fund, quoted supra, is illustrative only, and not an inferential dis-
missal of the allegation of nonpayment to the employee pension fund.
The Region's revocation of the dismissal in regard to "discontinuing cer-
tain fringe benefit payments" had removed that area from consideration
by the Office of Appeals and left the Regional Director with authority to
issue a complaint on the discontinuance of payments to such funds.
Having such authority, the amendment at the hearing was proper, and
the granting of the motion was appropriate. As then counsel for Re-
spondent, Joel I Keiler, admitted. Respondent was not prejudiced by the
granting of that motion
CAUTHORNE TRUCKING 725
Respondent concedes, and I find, that the Union
herein is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
Henry Cauthorne has been in the business of hauling
by truck in the Washington metropolitan area for ap-
proximately 30 years. In late 1971 or early 1972 Cauth-
orne received a subcontract for hauling work from Inter-
County Construction Company, which was then working
at a construction site at Connecticut Avenue and L
Street, Northwest, in Washington, D.C. According to
Cauthorne's testimony, the contractor told him in early
1972 that the Union said it would picket the construction
site if Cauthorne did not join the Union.
Cauthorne said that without contacting any of his em-
ployees or knowing whether they supported the Union
he met with the Union and signed a contract, known as
the CCC contract, which was a master agreement be-
tween the Union and a number of contractors. Cauth-
orne also signed agreements to make contributions to the
Union's health and welfare and pension funds and did so,
adjusting the sums as he was told. The contract signed
by Cauthorne expired around April 1975, and another
contract was negotiated between the contractor's associ-
ation, CCC, and the Union which was effective from
August 1, 1975, through April 30, 1978. Cauthorne was
not a member of CCC. Prior to the time that agreement
was reached, the Union presented a one-page document
to Cauthorne by which he agreed to some 11 articles as
proposed by the Union in their negotiations for the new
contract. This document was referred to as an interim
agreement to last until agreement on the contract was
reached. Cauthorne said he signed it around July 18,
1975, in order to keep working on the Inter-County job.
The General Counsel offered in evidence a document
identified as the contract between Construction Contrac-
tors Council, Inc., and the Union which was to be effec-
tive from August 1, 1975, until April 30, 1978. On page
26, this document contains a tenure clause and the print-
ed names of CCC and the Union, and has a written sig-
nature purporting to be that of Henry Cauthorne. The
document is undated and not witnessed. Cauthorne
denied that he had signed the document and said that the
signature was not his. Although denying having signed
the contract, Cauthorne admitted that he continued to
make payments to the two funds through July 31, 1978,
paying whatever increases were made throughout that
period.
Cauthorne testified that in the summer of 1978 he told
various union business agents that he was not going to
sign a new union contract because he was planning to go
out of business. There were some meetings between
Cauthorne and a union business agent, and Cauthorne
was eventually sent a copy of a new 3-year contract to
run from 1978 to 1981. He did not sign the contract and
made no payments to either the health and welfare fund
or the pension fund for periods after July 31. In Novem-
ber 1978, Union President George called Cauthorne to
find out whether he would sign the contract and Cauth-
orne again refused. On December 12, 1978, the charge
herein was filed.
Cauthorne testified that he never deducted union dues
from any of his employees' pay, and did not know
whether any of his employees ever became union mem-
bers or paid dues. A union business agent testified that
on one occasion he talked to Cauthorne about some de-
linquent dues and indicated that Cauthorne paid the
amounts for the individuals.
B. The 1979 Meeting
Attorney Keiler testified that he did not represent Re-
spondent until after the unfair labor practice charge was
filed and withdrew from such representation when he
testified in this proceeding.
Following the original dismissal of the charge on Janu-
ary 10, 1979, Union President George sent a letter to
Cauthorne stating that he would withdraw his appeal of
the dismissal if Cauthorne would bargain with the Union.
Attorney Keiler wrote George asking the Union for
proof of majority status and for a proposed contract. On
January 23, the Union filed its appeal of the dismissal
and wrote a letter to Attorney Keiler stating that the
proof of majority status had been given to the National
Labor Relations Board. No proposed union contract was
submitted to Keiler or to Respondent.
Attorney Keiler met with Union Business Agent
Warren on January 30. According to Keiler, Warren said
that he did not have a copy of the new Capital Area
Truckers Association contract. Keiler testified that he
said he was familiar with it and asked if there could be
any changes made in that contract. To Warren's negative
reply, Keiler said that that meant the first offer was the
last offer. When Warren said yes, Keiler said that Re-
spondent was not going to sign the contract and they
were at an impasse. Warren asked what changes Re-
spondent wanted in the contract and Keiler said they did
not want any health and welfare or pension funds and
that he was unhappy with the checkoff and the union-
security clauses. Warren said they were wasting their
time and Keiler left.
In rebuttal, 3 Warren testified that he asked Attorney
Keiler for the Company's position and Keiler gave him a
a Respondent objected to Warren's testifying, stating that Warren had
been in the hearing room during the testimony of some witnesses and that
this breached the sequestration order, and ill its brief stated, "Warren had
been sequestered on January 7. 1980 and was even present in the court-
room when the sequestration rule was made Therefore his presence in
the courtroom on February 11, 198( while a witness was testifying was a
blatant flouting of the Judge's order To add insult to injury, after he was
removed on February 11, 1980, he sat in a room here he could hear
other witnesses testifying Therefore, his testimony should not have been
received"
When this objection was made during the hearing, it was noted on the
record that Warren had been in the room during the testimony of an
expert witness concerning Cauthorne's purported signature on G.C Exh
II and that Warren was remosed to the wuitness room within I or 2 min-
utes In his testimony concerning this issue. Warren said that he could
hear a fes words but that he heard none or Attorney Keiler's testimony
Warren estified only to rebut Keiler's testimony
The purposes of sequestration were not violated since Warren's testi-
mony dealt solely w ih his meeting with Attorney Keiler There is no
evidence whatsoeer that Warren was in a position where he could hear
Continued
CAUTHORNE TRUCKING
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
number of items to which the Company was opposed.
Warren said that he made notes but the parties appeared
to be far apart. He said he asked Keiler for a list of em-
ployees and their salaries and that the meeting adjourned
with Keiler agreeing to give him that information. He
further testified that he never received that information
and Keiler in a later letter said that the information had
not been requested.
C. The 1975 Contract
The General Counsel's Exhibit 11 is a copy of the
1975 CCC contract with the purported signature of
Henry Cauthorne on the signatory page. As noted above,
this is the only written thing on that page. No evidence
was produced that anyone had ever seen Cauthorne sign
the document. Since Cauthorne denied signing it and I
refused to consider myelf an expert in authenticating
documents, both parties produced expert witnesses.
The General Counsel's witness was James Mathis, who
is a special agent for the Federal Bureau of Investigation
assigned to the FBI laboratory as an examiner of ques-
tioned documents. Mathis testified that he underwent a
2-year training course in the FBI in this regard and had
testified on several occasions and had worked under
others who had testified concerning questioned docu-
ments. From Mathis' study of the document compared to
known samples of Cauthorne's signature, he testified to
some similarities and some irregularities and concluded
that he could not say whether or not the purported sig-
nature was genuine.
Respondent's expert witness was James Miller, who is
the chief of the Questioned Document Laboratory for
the Metropolitan Police Department in Washington,
D.C., and whose experience in forensic programs began
in 1951 with some 25 to 26 years in the questioned docu-
ment area. Miller's background in this field is extensive.
In a most detailed analysis of the purported signature
as compared with more than 130 known signatures of
Cauthorne, Miller stated that, in his opinion, the purport-
ed signature was an attempt to copy a genuine signature
and was clearly a forgery. His analysis of the many items
he observed in reaching his conclusion left no doubt that
the signature was not genuine, and I so find and con-
clude.
the testimony of other witnesses or that he heard the testimony of Keiler.
In fact, the testimony is just the opposite. Therefore Respondent's objec-
tions are groundless.
Without a contract existing between the Union and the
Company from 1975 to 1979, there would appear to be
no binding obligation on Respondent to continue to
make payments to the Union's health and welfare fund
and pension fund after 1975, since the obligation to do so
arose only under the 1975-1978 contract.
If there was any failure on the part of Respondent or
any violation of Section 8(a)(5) in refusing to bargain, it
must have taken place in 1975 when Respondent did not
sign the contract insofar as the record establishes. The
fact that Respondent voluntarily paid money into the
two funds until 1978 is not the same thing as being under
a contractual obligation to do so. The Union has not
urged that it was deceived by the payments to the funds
or by the purported signature of Cauthorne on the docu-
ment. Therefore, there was no obligation on Respond-
ent's part to pay into the funds after July 31, 1978, and
prior to that time as well.
The General Counsel argues alternatively that Re-
spondent, without consultation or negotiation with the
Union, unilaterally terminated a condition of employ-
ment by ceasing to make payments to the funds and that
such violated Section 8(a)(5) and (1) of the Act even
though Respondent had unilaterally continued those con-
ditions while not obligated to do so. The short answer to
this thesis is that, since Respondent had no obligation to
continue those conditions of employment but did so uni-
laterally, it therefore had no obligation either to consult
or negotiate with the Union and could make such unilat-
eral changes as it wished, including stopping payment to
these two funds.
Under the circumstances of having an 8(a)(5) and (1)
charge filed against his client, I do not find that Attor-
ney Keiler's meeting with Union Business Agent Warren,
under the terms that Keiler set forth in his letters to the
Union, was an implicit recognition that Respondent was
under an obligation to bargain with the Union. This
meeting appears to have been in the nature of an explor-
atory meeting with Respondent trying to establish that it
could not negotiate on the terms it sought with the
Union and would have to come to an impasse.
The allegations of violations of Section 8(a)(l) and (5)
in this case must be dismissed since, if there was a refusal
to bargain by Respondent, it occurred sometime in 1975
when Respondent did not sign the 1975 CCC contract,
and not in 1978 as alleged in this complaint.
[Recommended Order for dismissal omitted from pub-
lication.]