J. Zembrodt Express, Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1971

193 N.L.R.B. 126 (N.L.R.B. 1971)

126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. Zembrodt Express, Inc. and Truck Drivers, Chauf- IT IS FURTHER ORDERED that the complaint in Case
feurs and Helpers Local Union No. 100, affiliated 9-CB-1733 be, and it hereby is, dismissed in its
with The International Brotherhood of Teamsters , entirety.
Chauffeurs, Warehousemen and Helpers of Ameri-
ca
Truck Drivers , Chauffeurs and Helpers Local Union
No. 100, affiliated with The International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America and J . Zembrodt Express, Inc.
Cases 9-CA-5498 and 9-CB- 1733
September 14, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On May 20, 1971, Trial Examiner Thomas A. Ricci
issued his Decision in the above-entitled proceeding,
finding that Respondent Company had violated
Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended, and recommending that it
cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that Respondent Union had not violated Section
8(b)(3) of the Act and he recommended that the
complaint in Case 9-CB-1733 be dismissed. Thereaft-
er, the General Counsel filed exceptions to the Trial
Examiner's Decision in Case 9-CB-1733 only and a
supporting brief. Respondent Company filed excep-
tions to the Decision. Respondent Union filed a brief
in answer to the exceptions.
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 proceeding to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, J. Zembrodt Express, Inc., Cincinnati,
Ohio, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
recommended Order.
I In adopting the Trial Examiner 's finding that Respondent Union did
not violate Section 8 (b)(3) of the Act, we do not pass upon his conclusion
that the strike commencing January 7 , 1970, was protected under the rule
of law enunciated in Mastro Plastics Corp. v N.L R B, 350 U S. 270.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in this
proceeding was held before the duly designated Trial
Examiner on March 11, 1971, at Cincinnati, Ohio, on two
separate complaints issued by the General Counsel of the
National Labor Relations Board. One complaint (Case
9-CB-1733), based on a charge filed on January 7, 1970, is
against Truck Drivers, Chauffeurs and Helpers Local
Union No. 100, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein called the Union Respondent or
the Union. The other complaint (Case 9-CA-5498) rests
upon a charge filed on January 19, 1970, and is against J.
Zembrodt Express, Inc., herein called the Company
Respondent, or the Company. Both complaints issued on
August 31, 1970, and were that same day consolidated for
single hearing. Both Respondents are charged with having
unlawfully refused to bargain, the Company in violation of
Section 8(a)(5) of the Act, and the Union in violation of
Section 8(b)(3). Briefs were filed by the General Counsel
and the Union. A statement of position was received from
the Company, with no copies served on other parties,
apparently because it participated in the hearing without
counsel. It adds nothing of moment to the Company's
position.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
J. Zembrodt Express, Inc., a Kentucky corporation, is
engaged in the City of Cincinnati, Ohio, in the operation of
an interstate trucking business. During the past calendar
year, a representative period, it received revenues totaling
in excess of $50,000 for services performed for customers
located outside the State of Ohio. During the same period
the Company had a direct inflow of goods and materials in
interstate commerce valued in excess of $50,000, purchased
and shipped to it at its Cincinnati location directly from
points outside the State. I find that the Respondent
Company is engaged in commerce within the meaning of
the Act, and that it will effectuate the policies of the Act to
exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
I find that Truck Drivers, Chauffeurs and Helpers Local
Union No. 100, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
193 NLRB No. 22
J. ZEMBRODT EXPRESS, INC.
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts in Brief
The events that gave rise to this proceeding date back to
1967. At that time there was in effect the International
Teamster Master Freight Agreement with the trucking
industry generally throughout the country; it was dated
April 1, 1967, and by its terms extended for 3 years to
March 31, 1970. There were also then in effect the various
regional supplements to the master contract, some for long
haul and some for local cartage, each setting out direct
economic conditions of employment for driver members of
the Union. By the fall of the year the regional agreements
had been reduced to printed booklet form, and in the
Cincinnati area, where Zembrodt Express, the trucking
company here involved, has long operated, it was called
"National Master Freight Agreement and Central States
Local Cartage Supplement," here sometimes referred to
simply as the Master Agreement.
Zembrodt, then with about 10 drivers, was nonunion and
the Teamsters, through its Local 100, wanted him tojoin up
and do business in keeping with its contract terms. The
Central States Supplement then in effect in the area
required a $3.66 hourly rate for city drivers; this was the
classification of Zembrodt's employees. Zembrodt, of
course, paid substantially less and was unwilling to assume
the financial burden of the Teamster Agreements. There
was a settlement, on November 11, 1967, and Mr.
Zembrodt that day signed two separate contract docu-
ments, each with Local 100. One was the Master Freight
Agreement and Local Cartage Supplement, formal, printed,
unchanged in any detail, including the wage rate, calling for
$3.66 per hour then, $3.81 per hour starting on April 1,
1968, and $3.96 per hour beginning on April 1, 1969. The
second agreement, called an addendum by the parties at the
hearing, contains very precise economic conditions of
employment and differs from the Master Agreement in
money terms only. It reads as follows:
J. ZEMBRODT EXPRESS, INC.
1218 PIKE STREET
COVINGTON, KENTUCKY, 41011
I I November 1967
SUBJECT: Meeting held this 11th day of November
1967 at 7:35 A. M., at office of J. Zembrodt
Express, Inc., 1330 West 7th Street , Cincinnati,
Ohio.
As per letter posted for this meeting, J. Zembrodt
Express, Inc., employees and Teamsters Union, Local
100 representatives hereby agree to the following.
With a vote of each they agreed to be Union, Card
Carrying members only , and abide by the following
agreements.
I The Central States Area Local Cartage Agreement (what was called
the Central States Supplement ) provided for an increase on April 1, 1969,
to $3.96 per hour, elsewhere the total agreement provided for a certain cost
127
J. Zembrodt Express, Inc., agrees to pay seven (7) paid
Holidays, one (1) weeks vacation under three (3) years
service, and all benefits in force at this time, either by
participation or by monitary allowances, for a duration
of one (1) year, ending in the year of the 1st of April
1968.
Each employee to work eight (8) hours per day at $3.09
per hour. All over-time to be worked at straight time
only. Seniorty to prevail. If any work available and any
employee has not received his forty (40) hours pay, then
this person or persons to be eligible for additional work.
If all persons have forty (40) hours, then next employee
according to seniorty wishing additional time, to be
eligible for same. If none accept, outside personel to be
hired.
Any employee who may have a greivance at time of
occurrance and does not file within seven (7) days after
occurrance does not have any claims against the
Company.
We, the undersigned agree to the afore mentioned, to
any and/or all company rules that may prevail from
time to time, that are now in force or may be posted in
the future.
The Teamsters Union reserves the right at the end of
one (1) year to re-open this contract with the employees
of J. Zembrodt Express, Inc., March 31st 68
J. ZEMBRODT EXPRESS, INC.
Robert J. Zembrodt
Robert J. Zembrodt, Secy.
Signatures to the aforementioned, attached to and made
a part of on page number 2.
In January 1968, only 2 months after the contracts were
signed, the Union served notice of intent to renegotiate
terms upon both the Company and the appropriate Federal
and State mediation agencies . Zembrodt continued to pay
the drivers $3.09 per hour, as called for in the addendum
contract; for 20 months desultory and inconclusive
communications were exchanged, the Union trying to
prevail upon the Company to raise its wages and Zembrodt
going through the motions but offering nothing substantial.
In October 1969, Local 100 filed a grievance with the
Local Joint Area Committee, as provided for in the Master
Agreement. Zembrodt participated in the grievance
procedure. Local 100 claimed Zembrodt was bound by the
express wage terms of the 1967 Local Cartage Supplement
and should pay $4.03 per hour, as called for in that
agreement.' The trucking company of course disagreed and
refused to pay the higher rate demanded.
On January 2, 1970, the Company signed an individual
contract with five of its then six or seven drivers, granting
their direct request for pay increases and raising their rate
from $3.09, or $3.17 per hour, to $3.60 per hour. The
contracts were signed without the knowledge of the Union.
On January 7, Local 100 struck the Company, all of its
drivers joined the strike, and none of them has returned to
work since . Zembrodt never ceased operations; it dis-
charged all its striking employees and replaced everybody.
of living adjustment which, by the fall of 1969, raised the local driver rates
to $4 03 per hour
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And, presumably, it has gone back to its old way of
operating nonunion
B. The Questions to be Decided
1. The complaint against the Company alleges that
when Zembrodt, in January 1970, signed individual
contracts with its drivers, without notice to Local 100, it
refused to bargain within the meaning of Section 8(a)(5) in
that it bypassed the recognized bargaining agent. To this
the Company's defense is that Ira Farmer, president of
Local 100, had given Mr. Zembrodt permission to engage in
this individual bargaining with his employees, providing he
satisfied the demands of the drivers themselves.
2. The complaint against the Union alleges that when it
struck on January 7 its strike was an unfair labor practice
because the Union failed to serve the appropriate 60-day
notices upon the Company and the Federal Mediation
service, as required by Section 8(d) of the Act, resulting in
an ultimate violation of Section 8(b)(3). The complaint
specifies no more than that the contract then in effect
covered the period "until March 31, 1970," and that the
Union struck without giving proper notices. The clear
implication of this language is that the Union sought to
"modify" (see Section 8(d) of the Statute) the terms of the
contract without waiting for the end of the 60-day cooling
off period or expiration of the contract-"whichever occurs
later." At the hearing the General Counsel said the purpose
of the strike was "to enforce the terms and conditions of the
National Master Freight Agreement which would have
expired on April 1st of that year." It called for $4.03 per
hour while the Company was paying only $3.09.
The Union 's defense is threefold . It contends that the
strike was to protest the Company's unfair labor practice in
contracting individually with the employees, conduct which
it asserts made impossible any meaningful collective
bargaining thereafter . It also argues that because the
grievance panel had decided that the Master Agreement
was then in effect and binding upon the Company, the
Union had a right to strike in protest against the employer's
refusal to abide by the contract terms. The Union's final
defense is that it did , as required by Section 8(d) of the
Statute, serve the appropriate notices. The theory of
defense here is that the original notices served back in
January 1968 opened the "contract" then in effect, that
throughout the next 2 years there were continuous
conversations between the parties, that their attempts to
negotiate a new agreement failed , and that therefore the
Union was privileged to resort to strike action in any event.
3. A subsidiary question is whether, as the Union
contends, the grievance panel (Local Joint Area Commit-
tee) in fact decided that the Master Agreement was in effect
and binding upon Zembrodt in the fall of 1969 , even to the
extent of obligating Zembrodt to pay $4.03 per hour. At the
time Local 100 argued this was so ; indeed its grievance
statement consisted precisely of this assertion . But if in fact
Zembrodt having signed two agreements-one in critical
part sharply in conflict with the other-could , as a matter
of law , any grievance panel decide that one contract or the
other was in fact in effect ? Or does the question of whether
or not there was a contractural meeting of the minds stand
upon evidence of a different kind?
C. The Case Against the Company; Bargaining
During 1968 and 1969; Individual Contracts
There is ambiguity in the so-called addendum contract
Zembrodt signed in November 1967. It says the "Union
reserves the right at the end of one ( 1) year to reopen this
contract ... ." It was signed on November 11, and this
phrase suggests the agreed-upon wage-$3.09 per
hour-would remain in effect at least until November 1968.
A "March 31, 1968" date is then added in long hand to the
typewritten clause of the contract . Did this mean the "(1)
year" was intended to extend only from November 11 to
March 31 ? The Master Agreement , also signed separately
that day, contains no reopening clause , but it does provide
for an increase in wages on April 1, 1968.
Holding in abeyance for the moment exactly for how
long a period the parties agreed the wages should stay fixed
at $3.09 , one thing is clear ; Zembrodt did agree to recognize
Local 100 as his drivers ' bargaining agent . Both the Master
Agreement and the addendum were signed by Local 100
and by Zembrodt, and the addendum does provide the
employees "agreed to be Union, Card Carrying members."
Right or wrong, Local 100 sent notice to the Company in
January 1968 to invite "renegotiating such contract."
There were received in evidence copies of a number of
communications exchanged between the parties during
1968 and 1969 in their continuing disagreement on what the
wages should be, and while the exhibits are limited , in their
language there is indication that more meetings and/or
correspondence on the subject took place that can be
counted by the exhibits themselves. In any event, on
February 2, 1968, the Company responded to the Union's
January reopening notice by offering to meet and to
negotiate. The Union wrote on April 17, commenting that
their meetings had been fruitless and reminding the
Company of it's (the Union 's) recommendation that
Zembrodt give "the fifteen cents per hour increase which
became effective under the Central States Area Local
Cartage Supplement Agreement on April 1, 1968" (It will
be recalled that the Master Freight Agreement and the
Central States Supplement , which Zembrodt had also
signed the year before , provided that the wage rates would
go from $3 .60 to $3 . 81 per hour on April 1 , 1968; Zembrodt
was still paying $3.09.) Three days later Zembrodt
answered ; he refused to put the raises as demanded in
effect and offered to meet again . There is a letter dated
October 2, 1968, where Local 100 reminded the Company it
was still waiting for some kind of an offer and threatened to
bung the matter "to the attention of our Executive Board."
Things seem to have remained quiescent until the fall of
1969. A September 25 union letter to the Company says
Zembrodt had refused to keep a bargaining appointment,
suggests September 29 as a date , and repeats the threat to
go to the "Executive Board ." The parties exchanged notes
on October 3, the Company again arguing it was prepared
to meet, and the Union saying ". . . it is our intention to
meet with you . . . for the purpose of negotiation [sic] wage
rates, health and welfare and pension contributions ... .
There are also two notices from the Union dated October
15; one is a letter saying the "problems could be resolved if
you would agree to abide by all of the terms of the contract
which you have signed , to wit , the National Master Freight
J ZEMBRODT EXPRESS, INC.
Agreement and the Central States Area Local Cartage
Supplement Agreement." The other is a telegram reading.
"You are requested to put into effect immediately all
provisions of the National Master Freight in Central Area
States Local Cartage Supplement Agreements.. . . ... A
last response is from the Company, again offering to meet
and confer
On October 21, 1969, Zembrodt's employees filed a
grievance under the provisions of the Master Agreement. It
states their complaint as follows:
We, the undersigned members of Local No. 100 and
employees of Zembrodt Express, are not receiving the
wages or other benefits provided by the National
Master Freight and Central States Area Local Cartage
Supplement Agreements to which our employer is
signed. We are requesting that we receive all benefits of
those agreements, exactly as written.
The grievance was pressed by Local 100 at a regular
meeting of the Joint State Area Committee on November
13, acting pursuant to the provisions of the Master Freight
Agreement and Central States Local Supplements. Mr.
Zembrodt appeared on behalf of the Company. The
minutes of the meeting, as received by Zembrodt in the
mail later, read in pertinent part as follows.
CASE #9-LOCAL #100 (LESLIE ELDRIDGE,
VICK BURNS, RALPH CAIN, ROBERT
REINHART, CHARLES MITCHELL, BILL
HENSLEY, JAMES REED, AL MAIROSE,
EARL MERRELL, HORTON MCFARLAND
VS. ZEMBRODT EXPRESS, INC
Alleged Violation- Article
The grievance reads as follows. The above-named
individuals who are employed by Zembrodt
Express state that they are not receiving the wages
or other benefits provided by the National Master
Freight and Central States Local Cartage Supple-
mental Agreement to which the company is
signator
The grievants are requesting that the company
immediately put such benefits into effect.
DECISION: The Company is granted thirty (30) days
to negotiate a contract
By letter dated November 28, the Company offered to
continue in effect to April 1970, the "Agreement dated
November 11, 1967," and to grant an immediate wage
increase to $3.17 per hour. It followed this with a second
letter on December 19, saying that inasmuch as the Union
had not responded to the wage increase offer, the Company
was then and there putting the wage increase in effect. On
December 23, the employees voted to reject the 8 cents per
hour raise and the Union so advised the Company. Its letter
again told the Company that the Union therefor insisted
"that you abide by the terms of the National Master
Freight Agreement and the Central States Area Local
Cartage Supplement Agreement in its entirety."
A week later , on January 2, 1970, Mr. Zembrodt met with
all his drivers in his office and asked what their demands
2 Franks Bros v N L R B, 321 U S 702 1 find that all drivers employed
by the Respondent , excluding all other employees and all supervisors as
defined in the Act , constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act I also
find that at all times since September 1969, and continuing to date, the
129
were. He testified it was the employees, through a driver
named Mairose, who ran the shop as "boss" in his absence,
who had asked to meet with him. Mairose, did not testify,
but another employee, Merrell, said instead it was
Zembrodt who invited him to the meeting. I rather believe
Merrell; whoever started the thing, Zembrodt admitted
having asked what the employees' demands were. One man
said they must have at least 50-cents-per-hour raise and
Zembrodt answered he would give them 51 cents, raising
them from $3.09 to $3.60 per hour. They agreed and the
next day all but one signed the written contract as prepared
by Zembrodt. At the meeting one man suggested a union
representative should be present, but Zembrodt told them it
would not be necessary, because Farmer, the union
president, had said: "what we do will be alright with him."
Farmer denied at the hearing that he had given any such
permission. I credit him. The Union had evinced too great
and continuing an interest in these employees for me to
believe it would at this late stage abandon them to their
own devices. Moreover, Zembrodt as a witness did not
himself testify to any conversations on this with Farmer.
I find that by bargaining with its employees individually
and directly, by granting them a direct increase in wages,
and by executing an individual contract with them, all
without consultation with the Union, the Respondent
unlawfully refused to bargain with its employees' recogniz-
ed exclusive representative and violated Section 8(a)(5) and
(1) of the Act. Regardless of what contract was or was not
then in effect, Zembrodt knew the employees were then
represented by the Union. Indeed, he had never raised any
question about the Union's status as exclusive bargaining
agent; rather, he had consistently conceded its status
throughout the events of the preceding months. To undo
the coercive effects of its illegal act, the Respondent must
be ordered to bargain with Local 100 now on behalf of its
present driver complement. And it matters not that all the
union drivers who worked for the Company in January
1970 may have been replaced in consequence of the stnke.2
D. The Case Against the Union Respondent
There is a certain reality in the field of labor relations that
cannot be ignored in this case, and that is dispositive of a
major contention of the Union. What the Union wanted, be
it the Teamster International or its Local 100, starting back
in the fall of 1967 and continuing up to the date of the
hearing in March 1971, was that Zembrodt Express
Company fall in line with the wage provisions of its Master
Freight Agreement and Central State Local Cartage
Supplement. Membership in the Union was, of course, an
important objective, as were also health and welfare and
pension contributions. But what really counted was the
wage rate, so disparate at the beginning between what
Zembrodt was paying-$3.09-and what the Master
Freight Agreement called for-$3.68-, which the major
trucking companies had agreed to, and, presumably, were
paying.
Union has been the representative for purposes of collective bargaining of
the employees in this unit , and by virtue of Section 9(a) of the Act has been
and is now the exclusive representative of all such employees for the
purpose of collective bargaining with respect to rates of pay, wages, hours
of employment , and other terms and conditions of employment
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zembrodt saw it the same way. There is no indication
that he was antiunion as such . No charge has been made
that throughout the events-even during the entire 2-year
period of 1968 and 1969 when he was paying $3.09 and the
Master Agreement called for much more , to say nothing of
the periodic increases for April 1, 1968, and April 1,
1969-this Company in any way resisted the demand that
its drivers be "Union, Card Carrying members." What the
Company did not want to do was pay the higher wages in
1968 as well as in 1969 . And the Union, try as it did by letter
and threats , could find no way to force its hand . This was a
real labor dispute , a matter of bread and butter.
Zembrodt agreed to go union in November 1967, but
only on his economic terms. And the Union, with no other
choice , agreed to accept him that way. The addendum, the
second contract signed that day, in a substantive economic
sense-and this is the essence of all collective -bargaining
agreements-bore little relationship to the Master Agree-
ment . With Zembrodt it was $3.09 per hour or no contract
at all. And the Union's thinking was-as has been seen in
case after case over the years-that a little bit at a time his
rates might gradually be brought up to union scale . In fact,
on April 17, 1968, when the Master Agreement was up to
$3.81 per hour, the Union offered to settle if Zembrodt
would go from $3 .09 to $3.24, by giving no more than the 15
cents raise called for in the Central States Local Cartage
Supplement . Zembrodt remained adamant , for another
year and a half.
It was a play on words in the end to say that this
Company was bound by the economic terms-wages and
all-as spelled out in the Master Freight Agreement and
Central States Supplement . And this is true whether it was
Local 100 which said it-in some of its later correspond-
ence to the Company-or the members of the Local Joint
Area Committee (also called the grievance panel), the
trucking company and union representatives who formally
sat in judgment on the grievance late in 1969 . Zembrodt
either was , as a matter of contract law, bound by the higher
wage scale set out in the Master Agreement , and never
mind the addendum , or it was not . No amount of charges
and counter-charges, threats or otherwise , could change the
legal effect of what contracts the Company had signed.
Certainly, if wage rates of the Master Agreement were not
binding upon Zembrodt because he signed something else,
the grievance procedure , existing by virtue of the same
contract, could hardly serve as a vehicle for determining the
contract itself to be a lawfully binding instrument. And I
think it clear on the entire record that all parties concerned
knew this.
A revealing document is the minutes of the action of the
grievance panel as served upon the Company. The decision
says no more than that the Company "is granted 30 days to
negotiate a contract ." The Union produced
witnesses-trucking employer members of the panel-who
testified that there was more to the decision . They said it
was decided that in the event Zembrodt , within 30 days, did
not come forth with some offer acceptable to Local 100, the
Master Agreement "would apply" (testimony of James
Young), "would take effect . .. the Union would have a
recourse under the Central States contract" (testimony of
Otto Budig), "turn to the Central States contract to apply
the terms ..." (testimony of Robert Herzog). On the basis
of this testimony the Union insisted at the hearing it was
decided the Master Agreement was in fact binding upon
Zembrodt, even to the $4.03 wage scale , and that therefore
it had a right to strike to enforce its terms upon the
Company, which was paying less wages than called for by
the contract . But the testimony is unconvincing on its face.
If the Master Agreement was indeed then in force , by what
logic could there be bargaining on the question of what the
hourly wage rate should be? Conversely, if it was not in
effect, by what legal reasoning could failure of Zembrodt to
satisfy the demands of Local 100 put it into force? Mr.
Zembrodt, who was then present , said there was no
decision to the effect that he was bound by the Central
States Supplement . I believe him . The exact demand of the
grievance was insistence by the employees , supported by
their local Union, that the contract was being violated by
Zembrodt in this critical respect . This was the very point at
issue.
In an effort to explain away the failure of the minutes to
state what the panel members now say was the heart of the
decision , Budig , vice president and general manager of
Budig Trucking Company, testified : "There are some
instances in which decisions are lengthy , and are amplified
by both of the co-chairmen to the grievance , both union
and management, so that a clear understanding occurs with
respect to the decision , and in those instances I do not try to
meld into the decision all of the amplifications that occurs."
For 2 years there had been a continuing dispute between
union and employer over the wage rates ; it was in
desperation over being unable to extract any raise from the
Respondent that the Union had its members file the
grievance . And the not very subtle scheme was somehow,
somewhere , to obtain a declaration that the Company was
contracturally bound to pay $4.03 notwithstanding it had
never signed such a contract . And Budig called all this
collateral "amplification" of the decision, the unimportant
part, while inferentially designating the directive to
negotiate-which the parties had been fruitlessly doing for
2 years anyhow-as the major decision justifying inclusion
in the grievance panel 's minutes . The trouble with his
statement is that in this case the tail of the decision is all
that emerged in writing and the whole dog remained
hidden . I do not believe Budig.
The truth of the matter is there was no such determina-
tion by the panel because there could be no such decision
by them. What they really told Zembrodt that day, in the
corridor according to some of them, was that if he did not
make his peace with Local 100, the Teamsters , supported
by other trucking companies which are bound by the
Central States Supplement , would later make the argument
that he , Zembrodt, was bound by the Master Agreement.
This was no more than repetition of the threat which Local
100 had a year been making against the Company.
In any event , the fact remains the Respondent was a
signatory to the Master Agreement and the strike came
when that contract by its terms had 3 months more to run
before expiration . The complaint says that the Union
should have talked instead of striking at that moment and,
as always, the only way for testing legality is to look at the
statute. Section 8(d) declares it is bad faith, and therefore a
J. ZEMBRODT EXPRESS, INC 131
violation of the Act, for either party "when there is in effect
a collective-bargaining agreement" to "terminate or modify
such contract," without first giving the requisite 60-day
notice to the other side and waiting, before taking
action-such as a strike by a union-until "sixty days after
such notice is given or until the expiration of such contract,
whichever occurs later." Unless the contract "in effect" be
identified and proved, unless the modification or termina-
tion sought be shown as relating to "such" contract, and
unless the action is established as coming before expiration
of "such" contract, there can be no finding of illegality. As
stated above, the complaint says the contract involved was
the Master Agreement, not to expire until April 1, 1970. At
the hearing the General Counsel said it was the addendum
contract that the Union sought to modify by forcing the
wage rate up from $3.09 to $4.03. This vacillation continues
in the Government brief; it first calls the addendum a
"rider" and says the Union's purpose was "not to modify
the rider," but to force the Master Agreement down the
Respondent's throat. In the next paragraph appears the
statement , ". . . since the rider was still `in effect' the
Union was precluded by the Act from striking without first
giving the notices required by Section 8(d)." But all this
avoids a necessary question in the case; which contract was
it that the Union was attempting "to modify"-the Master
Agreement or the addendum? Restated: Which wage rate
was it that the Union wished to change-$3.09 or $4.03?
However confused other things may be on this record, there
is no question but that the Union wanted a raise and in the
jockeying went as far as to insist on $4.03.
In his very able brief Counsel for the Union takes the
prosecution to task for its unexplained ambivalence. A very
reasonable analysis of this two-contract situation is made in
this brief when it likens the addendum agreement to a wage
reopener clause in the conventional single overall contract
situation . By signing the Master Agreement the Respon-
dent agreed to its major terms-recognition, union shop,
health, welfare and pension contributions, grievance
procedure, and matters of like kind. As to wages, and
certain details of holiday, vacation, and work hours, it
signed the addendum, and where that document speaks of
reserving "the right at the end of one (1) year to reopen this
contract," what the parties intended was that the Union
reserved the right to renegotiate these specific matters, as
listed in this contract. The total record rationally warrants
this inference . There is no indication that but for the
disputed wages, the parties ever took the position that any
of the other substantive terms of the Master Agreement
were not binding upon them. Zembrodt even participated
in the grievance procedure in 1969, as that contract
required.
Clearly the adequate notice served in January of 1968
was directed to the addendum-the one calling for $3.09
per hour. Not only did the addendum contain the date
"March 31, 1968" on its face-albeit ambiguously
written-but the Master Agreement contained no reopen-
ing provision and therefore could not have been the subject
of the 60-day notice. The addendum, of course, continued
and remained "in effect" throughout 1968 and 1969. There
was nothing in the contract language or in the reopening
notice which spoke of cancellation or termination. And it is
not argued, nor is there any evidence to indicate, that
thereafter the parties by their conduct agreed to put an end
to any contract. But all of this is equally true of any
contract of indefinite duration, or for a further fixed term,
which is opened solely for the purpose of negotiating wages.
While the parties are bargaining, even after giving the
proper 60-day notice under Section 8(d), the contract is still
in effect. A strike for more money hardly becomes illegal
then. If negotiations drag, if the employer is very adamant,
if the union loses heart and waits out the event, is the
contract any more "in effect" months later than it was
during the early stages of the period of attempted
negotiation? The General Counsel leaves unanswered the
question of how many months after March 31, 1968, could
the Union have struck for a raise without running afoul of
the law? Two months, 6, 12, 18?
I conclude that the Union struck to force modification of
the addendum contract, to force an upward revision of the
wage rates, that it did so after serving proper notices upon
all parties as required by Section 8(d) of the Act, and that
therefore its strike did not constitute a violation of Section
8(b)(3).3
I also find, entirely apart from all the foregoing, that the
strike was protected under the rule of law enunciated in
Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270.
Farmer, of Local 100, testified he went to the Company's
office early on the morning of January 7, together with
Quigley, another agent of the Union, where they had
arranged to meet Earl Mitchell, the business representative,
and the drivers. Farmer said their purpose on arrival was
"to discuss with the employees ... some had said
something to Mr. Mitchell about the employer offering
them some money." Farmer also testified that the first thing
that happened was that everybody went into Mr. Zem-
brodt's office where there was a discussion " in reference to
the Employer having a meeting with the employees
individually and making a monetary offer to them of which
he had not discussed with the Union." Farmer added he
called the strike "immediately."
Two or three days later Zembrodt was in the Union's
office in an effort to put an end to the strike. His position
was, as testified by Farmer without contradiction, that the
contract he had signed on January 2 with the employees
individually was entirely valid and precluded the strike. He
showed it to the union agents for the first time and, when
they called it illegal, went on that his lawyer had advised
him it was enforceable in the State courts, even though it
might later be declared unenforceable on appeal. In fact, on
January 12, Zembrodt filed an injunction petition in the
Court of Common Pleas , Hamilton County, Ohio, seeking
to stop the Union from continuing the strike on the ground
that it was unlawfully attempting to invalidate the
individual contracts. The County Judge issued the restrain-
ing order as requested.
Once or twice while telling his story, Farmer repeated his
opinion that the Master Agreement was binding upon the
Company, that he so thought all along . At one point he
3 Cf. Cheney California Lumber Co v N L R B, 319 F 2d 375 (C A 9).
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
even said a purpose of the strike was to compel Zembrodt
to pay the $4.03 hourly rate called for in that contract.4 But
I do not think Farmer's repetition of the Union's long and
mistaken belief that Zembrodt had somehow been
hoodwinked into being bound by the major Teamster
contract can serve to detract from the direct evidence that
the Union was that morning faced with an impossible
situation because of the illegal raises the Company had
given the employees 5 days before.
The General Counsel proved that a month before the
strike Local 100 had obtained strike sanction from its
International Union. He also pointed to the telegram of
October 15, where Local 100 called upon the Company to
put the Master Agreement into effect. But there is no way
of knowing what the Union would have done on the
morning of January 7 had the Company not injected the
utterly frustrating and completely illegal act of buying off
the employees behind their Union's back with the very
heart of the economic demand that had so long kept the
parties from reaching agreement. Farmer's demand that the
Company put the Master Agreement in effect, or "pay the
contract wages," was but another way of reiterating the
Union's request for an immediate raise to $4.03 from $3.09,
or from $3.17. He came prepared to put teeth into the
Union's demand this time, for he was fortified by the
International's strike sanction. Considering all the cone-
spondence that had been exchanged-including the fact the
Union had bothered to poll the employees on a mere 8-
cents offer-it may well be that had Mr. Zembrodt not
offered the 50-cents raise directly to the employees and
instead proposed it as a settlement to their Union, as the
law required him to do, there would have been an amicable
adjustment then and there. One can speculate whether or
not Farmer might have called the strike anyway, but there
is no way of knowing. The fact is Zembrodt precluded
bargaining, made even repetition of the Union's demand
for the full Master Agreement wages pointless. I think the
Union had no choice but to call the strike, if its continued
status as statutory bargaining agent was to retain any
validity.5
I find, on the basis of the entire record, that the General
Counsel has failed to prove the essential allegation of the
complaint against the Union Respondent, and I shall
therefore recommend that that complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent Company set forth in
section III, above, occurring in connection with the
operations with that company described in section I, have a
4
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several states and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent Company
unlawfully refused to bargain with the Union with respect
to its employees, it must be ordered on request to bargain
with that Union with respect to all employees in the unit
found appropriate. The Respondent must also be ordered
to cease and desist from bargaining individually with its
employees and from granting them any improvements in
working conditions unilaterally and without participation
in such negotiations by the exclusive bargaining representa-
tive.
CONCLUSIONS OF LAW
1. Zembrodt Express, Inc. is an employer within the
meaning of Section 2(2) of the Act, and is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All drivers of the Respondent Company, but
excluding all other employees and all supervisors as defined
in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(a) of
the Act.
4. The Union was in September 1969, and at all times
thereafter has been, the exclusive collective-bargaining
representative of Respondent Company's employees in the
appropriate unit, within the meaning of Section 9(a) of the
Act.
5. By refusing on and after January 2, 1970, to bargain
with the Union for purposes of collective bargaining, by
negotiating individual employment contracts with its
employees, and by granting them increases in pay without
consultation with their exclusive bargaining representative,
the Respondent Company has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
THE WITNESS At this particular time , sir, I was not aware that they
had signed I was made aware by the members themselves on January
the 7th at the meeting on that morning that the employer had
contacted them individually and collectively, and had reached an
agreement with some of the employees that he would give them 50
cents or 51 cents, ever what it was . And in the discussion I asked Mr
Mitchell if the company had contacted him in reference to this matter,
and he said no, siree , the company had not contacted him.
Mrs Fay's Pies, Inc, 145 NLRB 495• ". . . where the subject of the
unfair labor practice and the economic motivation is one and the same
thing , we find that it is the unfair labor practice which in fact causes the
strike "
From Farmer's testimony
TRIAL EXAMINER ' Local 100 struck the Zembrodt Company on
January 7th
THE WITNESS Yes sir
TRIAL EXAMINER Why9
THE WITNESS To enforce the award of the Local Cartage
Supplement Contract , supplement to the National Master Freight
Agreement , awarded by the Local Cartage Committee, which is legal
and binding to both the union and the employer
TRIAL EXAMINER . Did the fact that on January 2, one of the
exhibits shows , the company signed individual contracts with the
drivers for 514 raise have anything to do with why the Union struck
J. ZEMBRODT EXPRESS, INC. 133
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 6
ORDER
Respondent, J. Zembrodt Express, Inc., Cincinnati, Ohio,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Truck Drivers,
Chauffeurs and Helpers Local Union No. 100, affiliated
with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as the
exclusive representative of all employees in the bargaining
unit , unilaterally negotiating and signing individual con-
tracts of employment with its employees, or granting them
wage increases without consultation with their exclusive
bargaining representative.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to form, loin, or assist any labor organiza-
tions, to bargain collectively through representatives of
their own choosing, and to engage in other concerted
activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any and all such
activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive bargaining representative of all employees in
the appropriate unit described above, with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment and, if agreement is reached,
embody the terms in a written contract.
(b) Post at its place of business in Cincinnati, Ohio, and
in any other location where its employees report for work,
copies of the notice attached hereto and marked
"Appendix." 7 Copies of said notice, on forms provided by
the Regional Director for Region 9, shall, after being signed
by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, 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 said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps it has
taken to comply herewith.8
IT IS HEREBY RECOMMENDED that the complaint against
the Respondent Union (Case 9-CB-1733) be, and it hereby
is, dismissed.
6 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes
7 In the event that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
8 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read-
"Notify the Regional Director for Region 9, in witting , within 20 days from
the date of this Order what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with Truck Drivers,
Chauffeurs and Helpers Local Union No. 100, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT negotiate and sign individual contracts
of employment with our employees while they are
represented for collective-bargaining purposes by this
Union.
WE WILL NOT unilaterally grant wage increases to our
employees without consultation with their Union.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to self-organization, to form, loin, or assist any
labor organization, to bargain collectively through
representatives of their own choosing and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
WE WILL bargain collectively, upon request, with this
Union as the exclusive representative of our employees
in the bargaining unit described below with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment, and, if an
agreement is reached, embody such agreement in a
signed contract. The bargaining unit is:
All drivers in our employ, but excluding all other
employees and all supervisors as defined in the
Act.
J. ZEMBRODT EXPRESS, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, Room
2407, Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3686.