Grant Trucking, Inc

National Labor Relations Board - Board Decisions

Sep 28, 1984

272 N.L.R.B. 590 (N.L.R.B. 1984)

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grant Trucking, Inc and Teamsters National
Freight Industry Negotiating Committee, on
Behalf of Teamsters Local No 159, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America Case 9—CA-19800
28 September 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 30 March 1984 Administrative Law Judge
William A Gershuny issued the attached decision
The General Counsel and the Charging Party filed
exceptions and supporting briefs to which the Re-
spondent filed an answering brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed
' The Charging Party, explicitly, and the General Counsel, implicitly,
have excepted to some of the judge's credibility findings The Board's es-
tablished policy is not to overrule an administrative law judge's crechbil
ity resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect Standard Dry Wall Products, 91
NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully
examined the record and find no basis for reversing the findings
DECISION
STATEMENT OF THE CASE
WILLIAM A GERSHUNY, Administrative Law Judge
A hearing was held in Columbus, Ohio, on February 7,
1984, on a complaint issued October 20, 1983, alleging a
violation of Section 8(a)(1) and (5), based on an allegedly
unlawful implementation of a bargaining offer prior to
the point of impasse
The principal issue is whether there had been an im-
passe in bargaining
On the entire record, including my observation of wit-
ness demeanor, I hereby make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I JURISDICTION AND LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find
that Respondent is an employer subject to the Act and
that Local 159 is a labor organization within the meaning
of Section 2(5) of the Act
II UNFAIR LABOR PRACTICE
A Procedure
The General Counsel's case consisted of documentary
evidence and the testimony of two witnesses Davis, Re-
spondent's personnel director and principal negotiator,
and Brown, representative of the Ohio Conference of
Teamsters and the National Freight Industry Negotiating
Committee (National Committee) The Charging Party
offered no evidence At the conclusion of the General
Counsel's case, Respondent moved to dismiss, pursuant
to Federal Rules of Civil Procedure 41(b), and a briefing
schedule was agreed on
B Background
The following facts are not in dispute and are present-
ed as historical background There is no allegation or
contention that Respondent's withdrawal from the asso-
ciation or its termination of the contract was unlawful
Prior to 1979, Respondent, as a member of a multiem-
ployer bargaining association, was signatory to the Na-
tional Master Freight Agreement (National Agreement)
and Central States Area Iron and Steel Special Commod-
ities Rider (Rider) In 1978, Respondent withdrew from
the association and, in 1979, elected to enter into an in-
terim agreement, to be effective only until finalization of
the national agreement Respondent, although not a sig-
natory to that agreement, adhered to its terms On April
1, 1982, Respondent, pursuant to that agreement, termi-
nated the agreement and requested individual negotia-
tions for a new contract Ultimately, the National Com-
mittee designated Brown as its representative in negotia-
tions with Respondent
C The Facts
The credited facts are quite simple 1
Admittedly, at all relevant times, the subcommittee
was aware of Respondent's financial difficulties and its
need for concessions
Negotiations between the subcommittee and Respond-
ent began on February 16, 1982, when Respondent was
sent a preprinted, one-page interim agreement By its
terms, a signatory acknowledges "familiarity" with the
terms and conditions of a national agreement and riders
' All findings are made on the basis of the documentary evidence and
the testimony as credited Auto Workers Local 122 (Chrysler Corp), 239
NLRB 1108 (1978), Royal Zenith Carp, 263 NLRB 588 (1982) Apart
from admissions reluctantly made following persistent examination on
cross examination, and by me, Brown was less than a credible witness
He was unconvincing and his testimony was self contradictory and in
conflict with his Board affidavit in material respects Based on my obser
vation of his demeanor on the stand, it was apparent that Brown was un
willing or unable to meet the obligations of his oath as a witness Davis,
on the other hand, was a candid witness and his testimony convincing
Moreover, in view of the conclusion reached that impasse had, in fact,
been reached there is no need to consider Respondent's other conten
lions that the General Counsel is precluded from proceeding (a) because
of an earlier, written determination by the Regional Director that nei
ther party was willing to yield its position" and (b) because of inconsist
ent allegations in a complaint issued by Region 8 (Case 8-CA-15927) that
Respondent, as a member of the association, refused to execute the Na
tonal Agreement Despite assurances of counsel at the hearing, that corn
plaint has not been dismissed as to Respondent
272 NLRB No 92
GRANT TRUCKING

591
yet to be negotiated 2 and agrees to be bound by these
terms and conditions until it executes the national agree-
ment and riders It does not contemplate individual nego-
tiations by the signatory Davis advised the subcommit-
tee that Respondent would sign neither the interim
agreement nor a national agreement, rather, it desired to
negotiate an individual contract
Only one negotiating meeting was held between Re-
spondent and the subcommittee On March 16, 1982,
Davis and Brown met for 10 minutes (during a recess in
other ongoing negotiations participated in by Brown)
and Brown was given a 19-page contract proposal by
Respondent This proposal was never discussed or con-
sidered by the subcommittee Again, Brown proposed
that Respondent sign an interim agreement which would
have bound Respondent to a national agreement yet to
be negotiated and suggested that some relief might be
available by a rider once the national agreement was
signed by Respondent Of course, this procedure posed
an enormous risk to Respondent because, once Respond-
ent was bound to the national agreement, there would be
no assurances of concession bargaining or concessions
Respondent again refused At no time thereafter did the
subcommittee propose anything to Respondent other
than a national agreement
In March 1982, Davis met with Local Union President
Hunt, who represented that he had authority to negotiate
a local rider with Respondent 3 Hunt, who was present
in the hearing room, was not called to testify by the
General Counsel or the Charging Party On March 31,
they executed an agreement to bargain in good faith and
to make any agreement retroactive to April 1, 1982
Thereafter, Hunt and Davis agreed on two alternative
proposals for a local rider with concessions which would
accompany the national agreement which still had not
been negotiated The two alternatives were submitted by
Hunt and Davis to the local union, but Hunt refused to
submit it to the membership, stating that he could not
"mess" with the national health, welfare, and pension
provision
Between April and October 1982, there were no meet-
ings with the subcommittee' and Brown refused to nego-
tiate with Davis, insisting that Respondent wait for the
national agreement to be finalized, because a rider with
concessions would not be approved until the national
2 The record indicates that the national agreement was not finalized
until late 1983, more than 18 months after the onset of bargaining in this
case
3 Although Respondent was advised, by letter of February 4, 1982,
that only the subcommittee was authorized to bargain on behalf of the
local unions, Brown admitted that It was not Improper to negotiate with
a local in advance of the national agreement as to concession
4 One meeting was scheduled for January 17 1983, but Davis was pre
vented from attending by a severe snowstorm
agreement was negotiated Brown also advised Davis
that the subcommittee could not discuss (not "budge"
on) concessions on the levels of contributions to the
funds
In August 1982, by telegram, the local union threat-
ened strike action if Respondent did not sign the national
agreement, which still had not been negotiated No strike
occurred
Finally, by letter of April 25, 1983, Respondent sub-
mitted a final contract proposal to the local union, stat-
ing it would implement its provisions if no response were
received within a week Hunt returned the proposal the
next day, disavowing his previously declared authority
to bargain over a local agreement and instructing Re-
spondent to send the proposal to the subcommittee Re-
spondent returned the proposal to Hunt
On May 15, the final offer was Implemented and, by
letter of May 31 to Hunt, the Union was invited to sign
the contract which had been implemented There was no
response to this letter
From a consideration of all record evidence as cred-
ited, NLRB v American Ins Go, 343 U S 395 (1952),
there emerges three inescapable conclusions that compa-
ny proposals were never discussed or considered by the
subcommittee, that the Union, from the outset, insisted
that Respondent commit itself to a national agreement
yet to be negotiated before local concessions could be
considered, and that the Company was precluded from
negotiating in advance over local concessions because
the subcommittee considered the local union to be with-
out authority and because, in any event, local conces-
sions could not be considered until there was a national
agreement
Where, as here, a union refuses to consider any agree-
ment other than a national agreement, impasse is reached
and employer is free to implement the terms of its last
offer Betlem Service Corp, 268 NLRB 354 (1984)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 5
ORDER
It is ordered that the motion to dismiss be granted and
the complaint dismissed
5 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses