General Teamster Local Union 126

National Labor Relations Board - Board Decisions

Jun 4, 1969

176 N.L.R.B. 406 (N.L.R.B. 1969)

406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Teamster , Warehouse and Dairy Employees,
Local Union 126 p d Inland Trucking Co and
Wesley Medahn Co-Partners d/b/a Oshkosh
Ready-Mix Co., Cook & Brown Lime Co , and
Inland Trucking Co and Wesley Medahn
Co-Partners d/b/a Waupun Ready-Mix Case
30-CB-204
June 4 1969
DECISION AND ORDER
B5 MEMBERS FANNI\G BROW' A\D LAGORIA
On February 7 1969 Trial Examiner Frederick
U Reel issued his Decision in the above-entitled
proceeding finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed as set forth in the attached Trial
Examiner's Decision Thereafter, Charging Parties
Oshkosh Ready-Mix Co and Waupun Ready-Mix'
filed exceptions to the Trial Examiners Decision
and Respondent filed cross-exceptions and a brief in
support of the Trial Examiners Decision A reply
brief was also filed by Charging Parties Oshkosh
Ready-Mix Co and Waupun Ready-Mix
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and tends that no
prejudicial error was committed The rulings are
hereby affirmed The Board has considered the Trial
Examiners Decision, and the entire record in this
case including the exceptions, cross-exceptions and
briefs and hereby adopts the findings conclusions
and recommendations of the Trial Examiner 1
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be and it
hereby is dismissed in its entirety
'While this matter was pending before the Board one of the Charging
Parties Cook & Brown Lime Co filed a motion to withdraw as charging
party No opposition to this Motion has been filed with the Board
Accordingly the motion is hereby granted
'As it is unnecessary to our decision herein we do not pass on the Trial
Examiner s analysis of Dolly Madison Industries Inc Richmond Dairy
Division Case 5 CA 3475
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U RErt Trial Examiner This proceeding
heard at Fond du Lac, Wisconsin , on December 3 and 4,
1968' pursuant to a charge filed the preceding May 2
and a complaint issued October 29 2 presents questions
arising out of the efforts of the Respondent in the course
of bargaining for new contracts covering employees of the
Charging Parties to obtain wage rates equivalent to those
paid similar employees in another locality
Upon the entire record ' including my obseivation of
the witnesses and after due consideration of the briefs
filed by each of the parties, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYERS AND TFIE LABOR
ORGANIZATION INVOLVED
The Charging Parties in this proceeding are each
engaged in the sale and delivery by truck of ready-mixed
concrete to building and construction sites and each of
them annually receives materials valued in excess of
$50,000 which originate outside the State of Wisconsin, in
which these concerns conduct their businesses Each of
them is therefore an employer engaged in commerce
within the meaning of the Act They will be referred to
collectively herein as `the Employers Respondent,
herein called the Union is a labor organization within the
meaning of Section 2(5) of the Act At all times material
herein each of the Employers recognized the Union as the
statutory bargaining representative for an appropriate unit
of that Employer's employees
II THE ALLEGED UNFAIR LABOR PRACTICES
In 1965 each of the Employers had executed a contract
with the Union to expire in the spring of 1968 Late in
March 1968 bargaining negotiations commenced for new
contracts From the outset of these negotiations the union
representative Don Wetzel emphasized that a key union
demand was to increase the wage rates in the new
contracts to the point where they equaled the rates paid
for similar work in the neighboring cities of Appleton
Neenah and Menasha where a sister local of the Union
represented the employees The question presented by this
litigation is whether the Union in pursuing this aim
violated Section 8(bX3) of the Act
At the time of the bargaining sessions in this case the
wage rate for comparable employees in the Appleton area
was 22 cents per hour higher than the ratt, in Oshkosh
(home of two of the Employers) and 47 cents per hour
higher than in Waupun (home of the third) The Appleton
employees were represented by Local 563 of the
Teamsters while the Union has represented employees in
Oshkosh Fond du Lac, and Waupun and other locals of
the Teamsters represented employees in Sheboygan and in
Green Bay
'All dates herein refer to the year 1968 except where otherwise
specifically noted
`Throughout the hearing this case was consolidated with Case
30-CB- 217 involving the same Respondent but a different Charging Party
and presenting issues similar to those raised here At the conclusion of the
hearing upon the motion of Charging Party in that case and in the
absence of opposition from the other parties thereto I dismissed the
complaint in Case 30-CB-217
'Pursuant to leave granted at the close of the hearing the Charging
Parties submitted their proposed Exhibit ; after the hearing closed That
exhibit is hereby received in evidence over the objection of Respondent
going to relevancy
176 NLRB No 52
GENERAL TEAMSTER , LOCAL UNION 126
Although the Union's demand for parity with Appleton,
and the Employers' resistance to that demand, was a
constant stumbling block during the negotiations, the
specific clause attacked in this litigation was not presented
to the Employers until July 10, after several bargaining
sessions. The clause in question reads as follows:
In the event the Construction Materials Suppliers
Labor Agreement entered into between the Fox Valley
Construction Materials Suppliers Association or its
successors, and General Drivers and Dairy Employees
Union Local No. 563, I.B.T., provides for a wage rate,
on or after October 1, 1970, for ready mixed concrete
truck drivers, in excess of that provided in . . . this
Section, then the wage rate to be paid to drivers, under
this Agreement, on or after October 1, 1970, shall be
the same as that provided for under the said Fox Valley
Construction Materials Suppliers Labor Agreement.
General Counsel contends that the Union insisted that this
clause be included in any contract it reached, and that this
insistence on what General Counsel contends is a
nonmandatory subject of bargaining violated the Act. I
find, however, that the Union did not insist on this clause,
and that, even if it had so insisted, such conduct would
not have violated the Act.
1. So far as this record shows, the clause quoted above
first appeared late in June in a contract executed by the
Sheboygan local of the Teamsters with a Sheboygan
company. Wetzel learned of this clause at that time, and
promptly used it in his then pending negotiations in Fond
du Lac and Oshkosh.4 He was successful in getting
Lakeview Sand and Gravel Co., a Fond du Lac concern,
to agree to this language early in July, and soon
thereafter, on July 10, presented it to the Employers here
involved. As previously noted, however, the parties had
been in negotiations for several months, and the Union's
demand for parity with the Appleton rates had been a
subject of discussion before this language was presented.
During the negotiations preceding the presentation of
the clause in question, the Union had scaled down its
original wage demands. By mid-April the Union's demand
was for an increase of 80 cents per hour the first year, 55
cents the second, and 50 cents the third, or a total
increase of $1.85 over the 3 years. Wetzel testified, and I
credit his testimony, that this demand was intended to
encompass the 22 cents needed to achieve parity with
Appleton plus what he regarded as a fair increase in rates,
based on a recently executed contract by another union,
the Laborers, which called for $1.55 over 3 years. The
contract which the Union executed with Lakeview in Fond
du Lac calls for an increase of $1.55 over 3 years (45
cents the first year, 50 the second, and 60 the third) plus
the parity clause quoted above. Describing his negotiations
with Lakeview at the end of June, Wetzel testified:
We were still sitting at the point of $1.85 and the
employer and myself were arguing to the point of the
Laborers only getting $1.55. I told him we had to have
the 22 cents differential, so I gave them the parity
clause as an alternative. They could either give us the
22 cents which we were demanding, or they could give
us the $1.55 and parity. Then they would have until the
end of the agreement to find out if there was a wage
'Somewhat similar language , providing for immediate application of
Appleton rates upon a contract being reached in that area, had been used
in a contract executed the preceding April between the Green Bay local of
the Teamsters and a Green Bay employer, but Wetzel had no knowledge of
this, He never presented the Green Bay language to the Employers.
407
increase or prepare for it, and this would pick us up
into the area which our people wanted.
Armed with the Lakeview contract, Wetzel then
resumed negotiations in Oshkosh. He testified, and I
credit his testimony, that he did not insist on the
Lakeview contract with the parity clause, but offered the
Employers that alternative or the $1.85 over 3 years.
Referring to a proposal advanced by the Employers'
attorney, Mueller, that the contract provide for a lowering
of rates, as well as an increase, depending on what
settlement was reached in the Appleton negotiation,
Wetzel testified:
Q. (By Mr. Levy) What position, if any, did you
take about the manner in which the Oshkosh area
wages could be raised to Appleton scale?
A. Well, Mr. Mueller was - we took the position
we wanted the 22 cents plus $1.55 Mr. Mueller then
said why don't we go for what he called an open-end;
he says, if it's higher we'll go higher, if it's lower we'll
go lower. I said, - it would fluctuate up or down,
more or less, he gave me the impression he was willing
to go along with this aspect. I asked Mr. Mueller if we
went to something like this was the $1.55 there for our
people, and he sort of, like, smiled and looked at me,
and I didn't get what I considered a definite answer.
So, then the next thing I threw at the company, I says,
"Why don't we just forget about parity, if this is your
big problem, and just give us $1.85 and we won't have
to worry about anything, then you won't have any
language which you feel is illegal, or anything else, we'll
just get $1.85?"
Q. (By Mr. Levy) And what was his response?
A. He sort of laughed and said "No."
Wetzel admitted that in dealing with another Fond du Lac
employer, Ready-Mix Concrete, Inc., he had insisted on
the Lakeview contract, which contained the parity clause.
I credit his testimony that in Oshkosh, however, he was
prepared to accept "either the parity clause, or $1.85, or,
as a minimum, $1.77," or the "parity ... up or down" as
proposed by Mueller. (The reason Wetzel took a different
position in the Fond du Lac Ready-Mix situation was that
he thought he had reached a firm agreement there
adopting the Lakeview language.)
To be sure, the negotiations between the parties led to
both a lockout and a strike, and the Union's insistence on
obtaining some form of parity with Appleton rates was a
major cause of those events, although the parties were
also apart on other matters and were in disagreement over
wage rates quite apart from the parity issue. I find,
however, that the Union did not insist on the parity clause
quoted above as a condition to entering into any contract
but merely proposed it as one alternative means of
achieving the wage parity with Appleton rates.
2. Even if the Union had in fact insisted on the parity
clause, I would find no violation in its having done so.
Manifestly, the parity clause dealt with wage rates, a
mandatory subject of bargaining upon which the Union
could insist to and beyond the point of impasse. As the
Supreme Court noted in U.M.W. v. Pennington, 381 U.S.
657, 664, 665, fn. 1, a union may lawfully seek to obtain
the same wage rates from all the employers in a given
industry. General Counsel argues that the clause in this
case is outside the foregoing general rule because it would
bind the parties to wage rates set by others. This may be a
reason for the Employers' refusal to accept the clause, but
does not change its basic character as a wage demand.
Indeed it is not unusual for collective agreements to
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provide for a fluctuating wage structure to be affected by
the Cost of Living Index published by the United States
Department of Labor. The clause at issue would in effect
give such a wage-setting power not to the Government but
to the Appleton local and Appleton employers acting
jointly.
Finally, the bargaining history of the parties to this
case establishes that the Oshkosh rates normally were set
after the rates were agreed to in Fond du Lac, and that
the Oshkosh rates conformed to those in Fond du Lac. In
the instant case, however, a Fond du Lac company had
already accepted the questioned clause before it was
presented to the Oshkosh employers. Hence these latter
employers were really asked to do no more than accept
the Fond du Lac rates which they had customarily done.
To be sure, one of those rates embodies the Appleton
parity clause , but when this became operative it would be
the Fond du Lac rate. I see no violation in urging
Oshkosh employers to accept, as they had in the past,
rates acceptable in Fond du Lac. For that matter I would
see no violation if the Union asked to have the Oshkosh
employers abandon their adherence to Fond du Lac rates
and substitute a standard paid in Appleton or Chicago or
New York. Insistence on such demands may be unwise,
and the Employer is under no obligation to yield to wage
demands he considers excessive, but the fact that the rate
in question is determined in another locality, and is the
product of forces other than those immediately involved in
the negotiations does not render it any the less a term or
condition of employment upon which either party may
insist.
I find nothing to the contrary in U.M. W. v.
Pennington , 381 U.S. 657. To be sure, in that case the
Supreme Court observed (381 U.S. at 666):
But there is nothing in the labor policy indicating that
the union and the employers in one bargaining unit are
free to bargain about the wages, hours and working
conditions of other bargaining units or to attempt to
settle these matters for the entire industry. On the
contrary, the duty to bargain unit by unit leads to a
quite different conclusion. The union's obligation to its
members would seem best served if the union retained
the ability to respond to each bargaining situation as
the individual circumstances might warrant , without
being strait jacketed by some prior agreement with the
favored employers.
The Court noted the several Board decisions declaring
that an employer may not condition the signing of a
collective - bargaining agreement on the union's
organization of other employers in the industry' and
commented (381 U.S. at 667):
Permitting insistence on an agreement by the union to
attempt to impose a similar contract on other
employers would likewise seem to impose a restraining
influence on the extent of collective bargaining, for the
union could avoid impasse only by surrendering its
freedom to act in its own interest vis-a-vis other
employers, something it will be unwilling to do in many
instances. Once again the employer's interest is a
competitive interest rather than an interest in regulating
its own labor relations, and the effect on the union of
such an agreement would be to limit the free exercise of
the employees' right to engage in concerted activities
according to their own views of their self-interest. In
'American Range Lines . Inc. 13 NLRB 139, 147, Samuel Youlin. 22
NLRB 879, 885 , Newton Chevrolet . Inc., 37 NLRB 334, 341.
sum, we cannot conclude that the national labor policy
provides any support for such agreements.
While the Court' s language would seem to condemn
agreements under which a union undertook to impose on
other employers the terms reached in a particular
contract, it does not deal with an agreement that terms
reached elsewhere should be imposed on the contract
being executed. The difference is significant. In the
situation the Court condemns the subsequent bargaining is
straitjacketed by the terms already reached, or in the
Court's words the union is "surrendering its freedom to
act in its own interest vis-a-vis other employers ...." In
the instant situation the subsequent bargaining is free and
competitive. Moreover, in the instant case the subsequent
bargaining which would affect the terms of the contract
being negotiated was not to be done by either of the
parties to the instant contract.
In Dolly Madison Industries, Inc., Richmond Dairy
Division, Case 5-CA-3475, now pending before the Board
on exceptions to the Trial Examiner's Decision, Local 592
of the Teamsters and the General Counsel attack as
violative of Section 8(a)(5) company insistence on a
proposal that if the union made a contract more favorable
to a competitor with respect to rates of pay, hours of
labor, and other conditions of employment, such "more
favorable" terms (from the employer's viewpoint) "shall
immediately and automatically" become applicable as
amendments to the contract there being negotiated. Trial
Examiner Blake , relying on Pennington , held insistence on
such a clause violative of Section 8(a)(5). Assuming that
her views are sustained , the case seems completely
distinguishable from that before us for one of the reasons
just indicated with respect to Pennington, namely that in
Dolly Madison the contract would prevent the contracting
union from having the full freedom of negotiation it
should enjoy with other employers, whereas here the
Union is not itself involved in the subsequent negotiations,
and the parties to the subsequent negotiations (the
Appleton employers and the Appleton local) are free to
bargain in their respective interests without concern for
the impact that their eventual bargain may have on the
Oshkosh rates.'
Likewise distinguishable are the authorities relied on by
General Counsel and by the Charging Parties. Thus,
Southern California District Council, 144 NLRB 978,
involved an attempt to apply terms of the contract there
being negotiated to employees outside the bargaining unit.
Metropolitan District Council of Philadelphia, 137 NLRB
1583, concerned an attempt to force an employee to adopt
a "package" which included nonmandatory subjects of
bargaining , and which was to be administered by an
outside source. Here the only issue involved was wages, a
mandatory subject of bargaining, and the employers would
not have yielded administration of the contract to an
outside source , but only the settling of one of its terms.
Cases dealing with performance bonds or other
nonmandatory subjects of bargaining likewise have no
relevance here. Finally, cases holding that an employer
may not be compelled to bargain with a minority union,
'The other distinction I find from Pennington is applicable to both the
instant case and to Dolly Madison, namely that in Pennington the terms
for the subsequent bargaining were fixed by the first bargain, whereas in
this case and in Dolly Madison the initial bargaining was affected by, but
did not itself affect , the later bargaining Affirmance of the Trial Examiner
in Dolly Madison would not compel reversal here for the reason stated in
the text above; reversal of her decision would seem to lead to affirmance
here.
GENERAL TEAMSTER, LOCAL UNION 126
and cases holding that he must be free of pressure in
choosing his own bargaining representatives , miss the
mark. The Employers here are not being asked to bargain
with the Appleton local or to let the Appleton employers
be their bargaining representative . The Union' s demand is
for a specific term of the contract to be established by an
outside event.
I therefore conclude that even if the Union here had
insisted on the parity clause, it would not have violated
the Act in so doing . The Employers, of course, remain
;ree to resist this or any other economic demand.
CONCLUSIONS OF LAW
409
1. Insistence on the parity clause set forth in the
complaint would not violate the Act.
2. The Union did not insist on the parity clause or on
the acceptance of any contract without affording the
Employers an opportunity to bargain thereover.
RECOMMENDED ORDER
The complaint should be, and hereby is, dismissed.