Gresham Transfer

National Labor Relations Board - Board Decisions

Sep 28, 1984

272 N.L.R.B. 484 (N.L.R.B. 1984)

484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gresham Transfer and Line Drivers, Helpers,
Pickup and Delivery Local #741, affiliated with
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America Case 19—CA -14971
28 September 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 25 July 1983 Administrative Law Judge Tim-
othy D Nelson issued the attached decision The
Respondent filed exceptions, a supporting brief,
and a motion to strike the General Counsel's an-
swering brief The General Counsel filed an an-
swering brief to the Respondent's exceptions
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 1
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Gresham
Transfer, Kent, Washington, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order
We deny the Respondent s motion to stnke the General Counsel s an
swermg brief as it is without merit
In determining that the Respondent could not depend on the Union s
pnvileged" refusal to discuss mid term modifications to support the con
tention that its unilateral wage cut was justified, the judge relied on Oak
Cliff-Golman Baking Co, 207 NLRB 1063 (1973), enfd 505 F 2d 1302
(5th Cir 1974) cert denied 423 U S 826 (1975) Although he would
affirm the Judge s findings and conclusions Chairman Dotson does not
agree with part of the rationale in Oak Cliff-Golman In the Chairman's
opinion, the Board must have flexibility in this area to fashion appropn
ate remedies depending on the exigencies of the situation
DECISION
STATEMENT OF THE CASE
TIMOTHY D NELSON, Administrative Law Judge
Line Drivers, Helpers, Pickup and Delivery Local #741,
affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (Union) filed unfair labor practice charges on Sep-
tember 15, 1982, against Gresham Transfer (Respondent),
which were investigated under the supervision of the Re-
gional Director for Region 19 of the National Labor Re-
lations Board (Board) The Regional Director issued a
complaint and notice of hearing against Respondent on
October 29 Respondent duly answered, and I heard the
matter in trial at Seattle, Washington, on April 7, 1983
The General Counsel and Respondent each filed timely
posttrial briefs, which I have duly considered
The Issue
Was Respondent's admitted unilateral imposition of a
15-percent wage reduction in the union-represented bar-
gaining unit Justified by exceptional circumstances?
FINDINGS OF FACT
This is an undisputed record, and summary findings
are warranted Respondent is an Oregon corporation
which conducts a trucking business It operates a heavy
hauling division which has terminals in Portland,
Oregon, and Kent, Washington A Portland-based
Teamsters local represents Respondent's Portland drivers
and contracts separately with Respondent We are con-
cerned with Respondent's practices at the Kent terminal,
whose drivers are represented by the Union 2
A labor agreement was in effect between the Union
and Respondent for the Kent unit, which was due to
expire on July 31, 1982 Beginning in August 1981, and
continuing thereafter, Respondent regularly sought the
Union's agreement to renegotiate the contract wage rates
due to claimed net operating losses Respondent pro-
posed a variety of specific downward changes in wage
rates and other contract terms having economic impact,3
but also indicated that other alternatives to its specific
proposals might be acceptable 4 The Union repeatedly
either Ignored those requests or affirmatively expressed
its unwillingness to engage in any midcontract rollbacks
in wage rates or other conditions
On February 25, the Union served on Respondent a
contract reopener notice, expressing a "desire to revise
or change terms or conditions for the next contact
period" from those contained in the then-current labor
agreement Respondent replied in similar vein a week
later
On April 6, 5 Respondent wrote to the Union request-
ing "a meeting to open the contract at the very earliest
date" due to the alleged financial precariousness of the
current operation The Union did not specifically reply,
so far as this record shows Absent any other indication
to the contrary, however, I find from the terms used in
that letter that Respondent was not thereby seeking a
meeting to settle terms for a new contract to replace the
existing contract when it expired Rather, I find that this
letter was another attempt by Respondent to get the
Union to bargain over proposed rollbacks during the
term of the then-current contract 6
Respondent, admittedly an employer in commerce, also admittedly
bought and had shipped to Washington more than 850,000 worth of
goods or services directly from outside Washington in a representative
annual penod
2 The bargaining unit described at Conclusion of Law 3, infra, and Its
appropriateness is admitted by Respondent
'See, e g , R Exhs 3, 5, and 7
4 See R Exh 7, penultimate paragraph
All dates hereafter are in 1982 unless otherwise specified
o The testimony of Respondent s agent Ulmer, at Tr 55 10-16, tends to
confirm this Impression
272 NLRB No 77
GRESHAM TRANSFER 485
On July 13, the Union mailed to Respondent a com-
prehensive written proposal for changes in the labor
agreement to be effective August 1 Among other pro-
posed changes, the Union sought an hourly wage in-
crease of $1 50, effective August 1, with additional 50-
cent hourly increases effective on August 1, 1983, and
1984
On July 15, Respondent acknowledged receipt of the
Union's opening proposal for a new contract and for-
warded a copy of Respondent's own proposal Therein,
Respondent proposed, inter atm, a reduction in some
hourly wage rates 7
It appears that Respondent had conducted some bar-
gaining sessions in Portland with the Portland local in
July, but that the Union's representatives did not attend
This was the result of an agreement apparently reached
between Respondent's labor relations representative
York and the Union's representatives to await the results
of an audit of Respondent's operations then being con-
ducted by the Portland local 8
The record reflects that another meeting, attended by
Swift, occurred on August 26 9 In the absence of evi-
dence of any other intervening meetings, I find that there
were none In the absence of any evidence of such re-
quests, I find further that Respondent did not seek any
other meetings with the Union between July 21 and
August 26
On August 20, however, York had sent an "Interim
Proposal" to the Union In it York proposed that the ex-
pired collective-bargaining agreement be extended for
the period August 16-October 16, 1982, with certain "ex-
ceptions," the most notable of which for our purposes
was that "Effective August 16, 1982 each wage classifi-
cation shall be reduced by fifteen percent factor"
As expressed by York, "The purpose of this proposal is
to allow the parties additional time in which to conclude
collective bargaining toward the renewal agreement
which shall become effective August 1, 1982"
In an accompanying letter, York also alluded to some
prior understanding that the Union's members would be
"voting" in some fashion on the interim proposal before
August 26 York also confirmed in the cover letter that
he planned to meet with Swift on August 26 "to bargain
over the present agreement"
7 It is not at all clear from exhibits and testimony to whom these
hourly rates applied or when they applied I make this finding and similar
findings below about wage proposals in reliance on the uncontradicted
(although summary) testimony of Respondent s representative Ulmer and
on stipulations or admissions made by the parties Attempts to understand
on this spare record the significance and/or applicability of various
hourly and "mileage' and "subsistence" and COLA" rates which appear
in the labor agreements, and contract proposals of record herein have
been abandoned as fruitless What is clear is that none of Respondent s
proposals for reduced wages under a new comprehensive labor agree
ment were ever across the-board" in character Only its 'Interim Pro
posal' discussed below had such character
8 In a letter written by York to the Union's agent Swift on July 21 (R
Exh 16), York alluded to an earlier conversation in which Swift and
York had agreed that Swift would attend the next scheduled bargaining
meeting after the audit
9 August 25 is the date adopted by Respondent's witness in testimony,
although documentary matenal introduced by Respondent, including
notes of York written thereon, suggests instead that the meeting was on
August 26 See R Exhs 17 and 18 I rely on the latter
The record does not show whether a vote was taken
on the interim proposal, nor how, if at all, the Union's
rejection of it was communicated 1 ° In any case, an en-
tirely new comprehensive written contract proposal was
presented by Respondent to the Union during the face-
to-face bargaining session on August 26 Unlike the inter-
im proposal, the "August 26" proposal contained a more
detailed proposed schedule of rates which reflected re-
ductions which varied as a percentage, item by item 11
On August 31, however, Respondent admittedly im-
plemented a 15-percent-across-the-board wage reduction
in the Kent unit, having retroactive effect to August 16
Respondent acknowledges that this was done unilateral-
157 12 and I therefore find that there was no prior notice
to the Union of an intention to implement what had
theretofore been a mere "proposal" which the Union had
not acceeded to It is this admitted unilateral wage re-
duction, effective in the period August 16-December 113
which is challenged by the complaint
Additional findings are reserved to the analysis in the
next section
Analysis and Conclusions
As noted above, and as Respondent has conceded, the
question here is whether Respondent's admitted unilater-
al wage reduction was justified by exceptional circum-
stances, for, as a general proposition, an employer may
not unilaterally change wages or other established condi-
tions of employment in a union-represented unit More
specifically, an employer must normally notify such
union of its intention to make such a change and must do
so sufficiently in advance of any such proposed change
to afford the union an opportunity to bargain about the
change if it wants to do so NLRB v Benne Katz, 369
U S 736, 743 (1962) And, in circumstances such as this
one, where the parties are involved in bargaining for a
new labor agreement to succeed an expired one, the em-
ployer's obligation to refrain from such unilateral
changes extends beyond the mere duty to give adequate
advance notice and an opportunity to bargain, it encom-
passes the duty to refrain from implementation at all,
1 ° The General Counsel makes a number of representations on brief
about the facts of this case which do not seem to have record support
These include the assertions (p 2) that Swift an agent of the Union
took the Employer s Interim Proposal to a unit vote on August 26,
1982, where it was rejected He communicated the vote to York on
August 28, 1982 " Here, as elsewhere, the General Counsel has not trou
bled to identify the portion of the record on which he relies My own
search of the record does not specifically confirm the General Counsel's
quoted assertion of fact I find that the Union rejected the interim pro
posal but I do so based only on the presumption that Respondent would
have proved It as a defense to this complaint if, indeed, the Union had
accepted that Interim proposal
" See, e g, the 'fact sheet which Respondent prepared to character
ize the percentage reductions in the various identified wage categories
and which it presented to the Union along with the "August 26 propos
al
" Although the term was not used in the stipulation of the parties in
which Respondent acknowledges that it implemented the 15-percent re
duction, Respondent has elsewhere conceded the 'unilateral" quality of
its actions See, e g , R Br, 2-3 et seq
" On that latter date, as the General Counsel acknowledged at Tr 13,
the parties concluded a new overall labor agreement which 'stopped the
15 percent reduction
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unless and until an overall Impasse has been reached on
all bargaining subjects Winn-Dixie Stores, 243 NLRB
972, 974-975 (1979)
Here, Respondent's admitted implementation unilater-
ally of an across-the-board wage cut of 15 percent suf-
fered from two vices First, Respondent never notified
the Union of its intention to make such a change
Second, even if it had, there is no basis for concluding
that an impasse had been reached by the parties Indeed,
there is no contention by Respondent of any such im-
passe Respondent's agent Ulmer conceded that when the
"August 26" proposal was presented to the Union," the
parties then spent considerable time in discussions about
other areas of the proposed contract Nothing in Ulmer's
testimony about that bargaining session would warrant
the conclusion that the only outstanding point of dis-
agreement was with respect to the interim proposal 15
Accordingly, where it was stipulated that Respondent
nevertheless implemented a 15-percent reduction on
August 31, retroactive to August 16, and where, less
than a week before August 31, the parties were still ap-
parently engaged in fruitful bargaining over an entire
package of bargaining proposals, I must conclude that
there had been no prior overall impasse I note also as
further evidence pointing in the same direction that it
was not until November 23, 1982, that Respondent pre-
pared what it termed its "full and final offer," thus sug-
gesting that the parties' positions were still relatively
fluid before that point
An examination of Respondent's arguments on brief
leads to the conclusion that Respondent has taken some-
thing of a "kitchen sink" approach to its defense I do
not dwell on the plainly spurious or inconclusive sugges-
tion which Respondent has variously made, however,
since Respondent ultimately "relies" on the legal doc-
trines applied by the Board in AAA Motor Lines, 215
NLRB 793 (1974), and M & M Contractors, 262 NLRB
1472 (1982) 16
Briefly, the cited cases have recognized that an em-
ployer may be justified in making unilateral changes
"[w]hen a union, in response to an employer's diligent
and earnest efforts to engage in bargaining, insists on
continually avoiding or delaying bargaining" M & M,
262 NLRB at 1472 citing AAA Motor Lines, supra In M
& M, the Board found that an employer was justified in
implementing a certain set of changes unilaterally, even
though the change was made only 5 days after the em-
i4 On this vague record, it is possible to conclude that Respondent
viewed the August 26 proposal as supplanting any proposals made before
it, including the interim proposal I think it more likely, however, that
Respondent intended that the interim proposal be accepted as the basis
for ongoing wage payments pending the reaching of a new overall agree
ment To accept this interpretation provides grounds for doubt, however,
about Respondent's intentions and/or its expectations For, absent overall
impasse in bargaining for a new agreement, Respondent could not lawful
ly implement any wage reduction or other change in conditions Winn
Dixie, supra And, since this was the case, It is difficult to envision any
incentive which the Union might have had to acquiesce in the interim
proposal
" At best, Ulmer s confusing testimony on this point is to the effect
that the intenm proposal, as well as the most recent comprehensive con
tract proposal, were all discussed "quite thoroughly," and that some
"mutual agreement" was reached on some issues
' 6 R Br 11
ployer had presented a written detailed contract proposal
to the union, because the union had generally "manifest-
ed its aversion to bargaining" over a period of 7 months
and, more specifically, the union had refused during a
period from April to November to give the employer a
bargaining date and then further delayed in the setting
up of a meeting thereafter Ibid The Board nevertheless
made clear in M & M that its holding was linked to "the
particular circumstances present here" and also took
pains to stress that "Normally, an employer must allow a
union more than the 5-day period, present in this case,
between the time the union receives the employer's pro-
posed contract changes and the time the employer imple-
ments those changes" Ibid
Respondent points to the fact that it had been trying
since 1981 to get the Union to negotiate about "contract
relief' to ease its supposedly difficult financial situa-
tion," and likens the Union's unwillingness to discuss
midcontract wage reductions to the dilatory and
stonewalling conduct of the unions in M & M, supra,
and AAA Motor Lines, supra But the comparison is not
apt, for the obvious reason that a contracting party is not
"requided] to discuss or agree to any modification of the
terms and conditions contained in a contract for a fixed
period, if such modification is to become effective before
such terms and conditions can be reopened under the
provisions of the contract" See Section 8(d) of the Act,
see also Oak Cliff-Golman Baking Co, 207 NLRB 1063,
1064 (1973), enfd 505 F 2d 1302 (5th Cir 1974), cert
denied 423 U S 876 (1975)
Accordingly, Respondent cannot rely on the Union's
privileged unwillingness to talk about midterm contract
changes as evidence, such as that relied on in M & M,
supra, and AAA Motor Lines, supra, that the Union was
guilty of any persistent unwillingness to meet and bar-
gain about terms for a new labor agreement Indeed, once
those terms became ripe for discussion by the exchange
in early 1982 of "reopener" letters, there is no evidence
in the record to support the conclusion that the Union
was unwilling to meet at reasonable times and intervals
to engage in such discussions
I conclude, therefore, that there was neither a good-
faith bargaining impasse before Respondent unilaterally
reduced unit wages, nor was there any background of
bargaining intransigence by the Union which might have
privileged Respondent in taking such action Respondent
thus violated Section 8(a)(5) and (1) of the Act, substan-
tially as alleged
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
" 1 cannot and do not decide on this record whether Respondent was
in financial trouble, or, if so, whether it had reached the cnsis stage
which York sought to portary in letters dated as early as September 24,
1981 See R Exh 5 a letter to the Union with a handstamped notation,
urgent" at the top, and continuing shutdown threats if relief were not
immediately granted
GRESHAM TRANSFER 487
3 At all times material herein, the Union has been the
exclusive collective-bargaining representative of Re-
spondent's employees in the appropriate unit described as
follows
All line drivers of Respondent working out of its
Kent, Washington facility but excluding office cleri-
cal employees, professional employees, guards, and
supervisors, as defined in the Act
4 By unilaterally reducing the wages of unit employ-
ees by a factor of 15 percent effective in the period
August 16 to December 1, 1982, Respondent has failed
and refused to bargain collectively in good faith with the
Union as the exclusive collective-bargaining representa-
tive of the employees in said unit, and Respondent there-
by has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of the
Act
THE REMEDY
Having found that Respondent engaged in violations
of the Act, I shall provide in my recommended Order
that Respondent cease and desist therefrom, that it make
unit employees whole, with interest, for the losses they
suffered in the period August 16-December 1, 1982,"
and that Respondent post an appropriate remedial notice
and comply with its provision
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Gresham Transfer, Kent, Washing-
ton, its officers, agents, successors, and assigns, shall
1 Cease and desist from refusing to bargain collective-
ly in good faith with the Union as the exclusive collec-
tive-bargaining representative of employees in the unit
elsewhere found to be appropriate hereby making unilat-
eral changes in wages, hours of work, or other terms and
conditions of employment affecting said employees, or
by like or related action in derogation of its bargaining
obligations under Section 8(d) of the Act
2 Take the following affirmative action necessary to
effectuate the purposes and policies of the Act
(a) Consistent with section V of this decision cap-
tioned "The Remedy," make unit employees whole, with
interest, for all losses they suffered as a consequence of
Respondent's unlawful implementation of a 15-percent
wage reduction in the unit effective in the period August
16, 1982, to December 1, 1982
(b) Preserve and, on request, make available to the
Board or its agents all payroll and other records neces-
19 All amounts necessary to fulfill Respondent s make whole obliga
lions under this Order shall be computed in accordance with formulas
and policies set forth in F W Woolworth Co, 90 NLRB 289 (1950), Isis
Plumbing Co, 138 NLRB 716 (1962), and Florida Steel Corp, 231 NLRB
651 (1977)
19 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
sary or helpful in the determination of amounts required
to make employees whole under this Order
(c) Post at its Kent, Washington terminal copies of the
attached notice marked "Appendix " 2 ° Copies of the
notice, on forms provided by the Regional Director for
Region 19, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply_
20 If 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 Na
tional Labor Relations Board" shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
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 or-
dered 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 representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT make changes in the wages, hours of
work, or other terms and conditions of employment in
the unit of drivers represented by Local Drivers, Help-
ers, Pickup and Delivery Local #741 affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America unless we first
notify that Union of our intentions and fulfill our obliga-
tions under the Act to bargain in good faith about such
changes
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed by the Act
WE WILL make all drivers in the Kent bargaining unit
whole, with interest, for the losses they suffered as a
result of our unlawful reduction of wages effective in the
period August 16 to December 1, 1982
GRESHAM TRANSFER