Jensen's Truck Stop

National Labor Relations Board - Board Decisions

Jan 30, 1978

234 N.L.R.B. 567 (N.L.R.B. 1978)

JENSEN'S TRUCK STOP
Bosse, Inc., d/b/a Jensen's Truck Stop and General
Truck Drivers, Warehousemen and Helpers Union,
Local 980, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Case 20-CA-12394
January 30, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On September 30, 1977, Administrative Law Judge
William J. Pannier III issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
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 Administrative Law Judge and
hereby orders that the complaint is dismissed in its
entirety.
: The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge: This
matter was heard by me in Ukiah, California, on June 9,
1977. On March 17, 1977, the Regional Director for Region
20 of the National Labor Relations Board issued a
complaint and notice of hearing based on an unfair labor
practice charge filed on January 24, 1977, alleging viola-
tions of Section 8(aX)(1) and (5) of the National Labor
I Respondent also operates a similar establishment in Dunagan, Califor-
nia: Bosse, Inc., d/b/a Dunagan Truck Stop.
I The unit was all gas station attendants and cashiers employed by
234 NLRB No. 93
Relations Act, as amended, 29 U.S.C., § 151, et seq., herein
called the Act.
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine
witnesses, and to file briefs. Based on the entire record,
upon the briefs filed on behalf of the parties, and upon my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
At all times material, Bosse, Inc., d/b/a Jensen's Truck
Stop, herein called Respondent, has been a California
corporation, having a place of business in Ukiah, Californi-
a,' where it engages in the retail sale of diesel fuel and
gasoline. During the past 12 months, Respondent derived
gross revenues in excess of $500,000 from its operations
and, additionally, purchased and received goods valued in
excess of $50,000 directly from suppliers located outside
the State of California. Therefore, I find, as admitted in the
answer to complaint, that at all times material, Respondent
has been an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II1. THE LABOR OROANIZATION INVOLVED
At all times material, General Truck Drivers, Ware-
housemen and Helpers Union, Local 980, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, has been
a labor organization within the meaning of Section 2(5) of
the Act.
III. ISSUE
Whether Respondent violated Section 8(aX5) and (1) of
the Act by failing and refusing to sign a written collective-
bargaining agreement embodying a provision for shift
differential pay, as agreed upon by the parties during
negotiations.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Following certification 2 on September 16, 1976, 3 the
Union participated in five negotiating sessions (September
29, October 15 and 21, and November 9 and 29) with
Respondent. Agreement was reached on the terms of a
contract at the final session. Thereafter, there were three
telephone conversations between Respondent's negotiator,
Jack M. Harper, and Business Agent Charles Green, the
Union's principal spokesperson during the negotiations,
resulting in a dispute over whether there had been
agreement to include a shift differential payment provision
in the contract. This is the only issue presented by the
Respondent at its 1460 Lovers Lane, Ukiah, California, location, excluding
office clerical employees, guards and supervisors as defined in the Act.
3 Unless otherwise stated, al dates occurred in 1976.
567
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint. Accordingly, without regard to whether or not
the parties were acting in good faith during bargaining,
under Board policy and in view of Section 3(d) of the Act's
mandate with regard to the General Counsel's authority
over issuance of complaints, this Decision must be con-
fined to the question of whether there was or was not such
agreement. Shreveport Garment Manufacturers, 133 NLRB
117, 119 (1961). "Respondent was never put on notice that
[a more broadly based] violation was in issue." Andres
Oldsmobile, Inc., 230 NLRB 1191 (1977); accord: Medicine
Bow Coal Company, 217 NLRB 931, fn. 2 (1975); contra:
Alexander Dawson, Inc. d/b/a Alexander's Restaurant and
Lounge, 228 NLRB 165 (1977).
In resolving this issue, I am convinced that not one of the
witnesses who appeared at this hearing was fully candid,
with some being less so than others; and that all of them
attempted to tailor, to a greater or lesser extent, their
recitations of events to conform to the positions of the
parties whom they supported and, in the case of Green and
Harper, to avoid the embarrassing positions in which they,
notwithstanding their experience as negotiators, found
themselves. Accordingly, the factual findings are based
upon a careful analysis of all testimony advanced in light
of the demeanor of each witness in advancing that
particular testimony.
Prior to the initial meeting, Respondent's employees had
been working a 5-day, 12-hour-a-day workweek. However,
a state law was to become effective on October 18, making
payment of overtime rates mandatory for all time worked
in excess of 8 hours a day. According to Green, Respon-
dent had posted a notice announcing that the workweek
would be changed to one of six 8-hour days and the Union
had protested this change by letter. The Union also had
submitted a written proposal embodying a 5-day, 12-hour-
a-day workweek provision. These events formed the back-
ground for the September 29 meeting at which, testified
Green, Harper had initiated discussion of the workweek
issue by commenting "to the effect that because of the new
state laws that they would have to put in their new shifts,
and we disagreed at that point of changing shifts at any
time in our first meeting." This subject, however, was then
brushed aside when the parties fell to arguing over whether
a union-security clause should be included in their con-
tract, with Green pointing out that there was such a a
clause in the contract covering employees at the Dunagan
facility.
At the second meeting, on October 15, 4 Harper made a
proposal regarding the workweek which, he testified, had
been designed "to get the Union off its demand for a 60-
4 The Union contends that this meeting commenced at 2 p.m., while
Respondent asserts that it began at 10 a.m. I make no finding on this point
as I do not regard it as material. It should, however, be noted that either side
could be accurate based upon the testimony presented. Thus, while the
meeting had been scheduled originally to commence at 10 a.m., Harper did
not dispute Green's testimony that it had then been rescheduled to 2 p.m.,
because of a conflicting preelection hearing scheduled to commence at 10
a.m. that day. The fact that Ralph Bosse had to drive for 2 hours to reach
Ukiah is not as significant as Respondent argues, for, as president of
Respondent, he quite likely would have made the drive in any event for
purposes connected with operating Respondent. Conversely, the General
Counsel acknowledges that the schedule conflict was removed on October
13 when a Stipulation for Certification Upon Consent Election was
executed, thereby obviating the need for a preelection hearing. Inasmuch as
hour work week."5 This proposal combined the proposed
workweek change to six 8-hour days with a proposal for
shift differential payments for second- and third-shift
employees of 10 cents and 15 cents, respectively. Green
responded by asking if the amounts were negotiable and,
receiving no reply, then passed on to renewed discussion of
union security. This ended discussion of shift differential
for the duration of the meeting.
In making these findings regarding Respondent's Octo-
ber 15 workweek and shift differential proposal, I do not
credit the testimony of former cashier Julia Soinila, who
had accompanied Green during these negotiations, that
Green had accepted Respondent's proposal. Not only is
this inconsistent with Green's own account of his response,
but, as the shift differential was coupled with workweek in
a package proposal, acceptance would have ended further
negotiations regarding workweek, as well as shift differen-
tial. Quite clearly this was not the case, for negotiations
regarding workweek took place at all remaining meetings.
Similarly, I do not credit Respondent's witnesses' asser-
tions that the proposal had been withdrawn specifically
later that same day. It is undisputed that in conversations
occurring after November 29 regarding shift differential
both Harper, Respondent's negotiator, and Ralph Bosse,
Respondent's president and the official who possessed
authority to grant final approval of any agreement reached,
had accused Green of having rejected this proposal.
Neither of these two most central figures on Respondent's
side had asserted during these conversations that the
proposal had been specifically withdrawn. Yet, had this
been the case at least one of them would seemingly have
pointed that fact out to Green while arguing with him that
there had been no agreement on shift differential. In short,
Respondent's postagreement conversations with Green
tend to support my ultimate finding in this matter that
Green's response to the October 15 proposal had led
Respondent to believe that it was unacceptable and could
possibly be more costly than Respondent had anticipated;
that Respondent then pursued negotiations concerning
workweek without further consideration of shift differen-
tial; that Green's subsequent resurrection of the shift
differential portion of the proposal brought to light that it
had never been retracted specifically; and that, in an effort
to fortify their position that there had never been agree-
ment on shift differential, Respondent's officials embell-
ished their testimony in this instance by creating a
withdrawal comment that had never been made.
One other topic of significance arose during the October
15 meeting. Harper testified that at this meeting he had
Green conceded that Harper had previously told him that he (Harper) had
intended to be in Ukiah on October 15 in any event, it is not inconceivable
that the meeting would then have been rescheduled again; this time back to
the original 10 a.m. starting time.
s I do not credit the testimony of Respondent's witnesses that Harper
had failed to discuss this proposal with Respondent's officials before
offering it to the Union. Harper is an experienced negotiator and he
conceded that it had been his practice to review proposals with his client
before making them. Further, shift differential is a monetary item which, if
accepted, would of necessity have a financial impact upon Respondent. In
these circumstances, I rind it highly unlikely that Harper would have
deviated from his normal practice to make a proposal of this significance
without first having cleared its acceptability with his client.
568
JENSEN'S TRUCK STOP
informed Green that any agreements reached were subject
to, inter alia, Ralph Bosse's approval. Green denied that he
had been so advised and contended that Harper had not
made mention of this fact until much later. However, on
this point, I credit Harper and find that it was Green who
was attempting to buttress his position by his testimony in
this area. Harper testified that pursuant to his employer's
policy he customarily informs unions, upon entering
negotiations, that his authority is limited to the extent that
his principal's approval is necessary for final agreements to
be attained. 6 Green had negotiated with Harper in the past
and his testimony that he could not "recollect" Harper
having ever given notice of his limited authority during
these past negotiations was unpersuasive both in substance
and in tenor. Moreover, his testimony as to when Harper
had assertedly first advised him of the limitation was
equivocal: "I would say probably at our fourth meeting
[November 9], and maybe even later. I don't recall him
coming right out and saying anything." Yet, the proposals
submitted by Harper on October 21 each carried a
qualifying statement that it was "recommended for adop-
tion subject to agreement on the contract as a whole, and
ratification of. . . [the] chief executive of the Employer."
Green had signed beneath this legend on each proposal
submitted by Respondent. In these circumstances, it is
clear that Harper was not hiding the limitation on his
authority, that Green had been put on notice of that
limitation, and that the circumstantial evidence supports
Harper's testimony that he had advised Green specifically
of that fact, as was his custom, on October 15. 1 so find.
The subject of shift differential was never discussed
during the remaining three meetings. However, the work-
week was a subject of repeated negotiations between the
parties.7 Of significance is the meeting of October 21. In
responding to the Union's October 15 renewal of its
continued 60-hour workweek proposal, Harper proposed
the "same language as contained in the employer's Duna-
gan contract" at the October 21 meeting. The Dunagan
contract, with which Green was familiar as illustrated by
his own reference to it on September 29 in connection with
the discussion of union security, provides for a workweek
s Harper testified that the dispute over workweek and union security had
diverted him from making such an announcement at the September 29
meeting. In light of what had transpired at that meeting. I find that
explanation both logical and credible.
I In this area, Green again attempted to enhance his position by tailoring
his testimony. Thus, in an effort to nullify any possible adverse effect of the
absence of discussion of shift differential at the November 29 meeting,
where agreement on a contract had been reached, he testified that only the
four subjects left in dispute at that point had been covered during that
meeting. He identified these disputed subjects as being sick leave, a cashiers'
clause, union security, and leave for holidays and funerals. Thus, if credited,
this testimony would mean that the workweek, to which shift differential
had been appended in Respondent's October 15 proposal, had no longer
been a disputed issue at the last meeting. Yet, a careful examination of
Green's own testimony on the progress of negotiations regarding workweek
shows that not to have been the fact, for he testified that "in the third and
fourth meetings, we had been changing our positions" and, further, that on
November 9 the Union had "asked that Charlie Anderson and Virgil Riley
remain on 12-hour shifts, and all other employees stay at the six eight hour
shifts [sic i. We modified it that far." In view of this testimony as to where
things stood as of the end of the November 9 session and in light of the fact
that Respondent's proposed 48-hour workweek was ultimately agreed upon
by the parties, it is difficult to perceive how the workweek could not have
remained in dispute and been discussed on November 29. The record is
of six 8-hour days, with time and a half for hours worked in
excess of 40 hours per week, but makes no provision for
shift differential.
Having attained final agreement, Green had then been
faced with the task of submitting that agreement to the
employees for a ratification vote. "As I was putting my
notes together to present to the employees," testified
Green, "I came across a couple of questions that I wasn't
sure of. One of them again was the cashier thing that I
wanted to discuss, and the other was the shift differen-
tial." 8 Green called Harper, pointing out that there had
never been a specific withdrawal of the proposal of shift
differential. On direct examination, Green testified that, in
reply, "Harper agreed at that point that yes, it was on the
table and they had not taken it off. He says, go ahead, and
present it to the employees." This seemingly clear acquies-
cence by Harper became less clear on redirect examination
when, as part of his effort to avoid conceding awareness of
the limitation on Harper's authority, Green testified that
Harper had responded, "[t]hat as far as he could remem-
ber, yes, they had put in on the table, they had not taken it
off the table. And he says, 'Yeah. Go ahead and vote it.'
And he would talk to the employer." (Emphasis supplied.)9
Both actions were carried out. Green presented the shift
differential as part of the contract which was then deemed
ratified by the employees. Harper presented the same
subject to Ralph Bosse who refused to agree to its inclusion
in the contract.
With the matter in this posture, Harper prepared the
final contracts for signature. Upon discovering, in addition
to several errors, that no shift differential clause had been
included, Green telephoned Harper. At this point the issue
was joined, with Harper asserting that the Union had
rejected the proposal and with Green countering that the
Union had only asked if the proposed amounts were
negotiable. Devoid of the embellishments provided by both
sides at the hearing, I find that this is the essence of the
conflict presented.
devoid of any evidence showing that the agreement to a 6-day, 8-hour-a-day
workweek was achieved on any other occasion.
s Green was cross-examined at some length with regard to why, if he had
believed that there had been agreement to shift differential, he had felt
compelled to contact Harper to question whether it was to be included in
the contract. After initially equivocating in an effort to avoid a direct
answer, Green conceded that this had been one of the issues about which he
had felt uncertain, because "the employer had put the articles on the table at
that first meeting. They had not removed it from the first meeting. And I
wanted to be satisfied in my own mind, when I did present it to the
employees, that it was not removed from there."
9 I find Harper's testimony that, in response to Green's announced intent
to submit shift differential to ratification, he had said "If that's what he
wanted to do, I didn't have any control over it" not to be credible. As was
evident throughout the hearing, Respondent had been most concerned with
the propriety of the Union's ratification procedures. During negotiations,
Harper had displayed such concern about the matter that he had presented
proposals which were to be submitted to the employees for ratification
before binding agreement would be deemed to exist. In these circumstances,
I find it highly improbable that he would cavalierly dismiss, as beyond his
control, an announcement that the employees were to be told that a
provision on which no agreement had been reached was to be part of the
contract with Respondent if they ratified the agreement
569
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Discussion
While there was no announced time limit to Respon-
dent's October 15 proposal, an offer unlimited as to time is
"by elementary principles of law, open for a reasonable
length of time." Tanner Motor Livery, Ltd., 160 NLRB
1669, 1681 (1966). Here, to minimize the impact of a soon-
to-be-effective change in overtime law, Respondent had
been attempting to change its weekly work schedule. This
change had been opposed by the Union. Thus, in an effort
"to get the Union off its demand for a 60-hour work week,"
Respondent had formulated the shift differential proposal
as a sweetener and had added it to its previously proposed
revision in the workweek, thereby offering a package deal.
While the Union did not reject the proposal, neither did it
accept it as Respondent had hoped that it would do.
Accordingly, Respondent had failed to attain the desired
agreement to change the workweek prior to the effective
date of the new state law. Since this had been the basis for
adding shift differential to the workweek proposal, it was
not unreasonable for Respondent to then delete that
portion from the package following the Union's failure to
accept it and the passage of the effective date of the
overtime law. This it did, for on October 21, Respondent
made a workweek proposal on the basis of the Dunagan
contract which contains no shift differential.
The complaint does not charge Respondent with acting
for other than legitimate considerations. As the Union had
failed to accept the package proposal on October 15 and
inasmuch as the new overtime law had become effective,
the October 21 offer had been no more than "a legitimate
reaction to a change in the conditions which existed at the
time [of the proposal]." Vulcan Steel Tank Corporation, 106
NLRB 1278, 1279 (1953). Parties are simply not "rigidly
bound to each and every tentative decision reached," R. J.
Oil & Refining Co., Inc., 108 NLRB 641, 643 (1954), and,
concomitantly, neither are they rigidly bound to each and
every proposal made. Nor does the disparity of Respon-
dent's October 21 proposal - occasioned by deletion of
the shift differential portion of the prior proposal -
mandate a different result, for the offer was made after
Respondent "had abandoned the 'package deal' as a basis
for agreement and .... is explainable on the ground that
each was made in a different context." Stoner Rubber
Company, Inc., 123 NLRB 1440, 1443 (1959).
Therefore, in light of the circumstances which motivated
the shift differential offer, the Union's failure to accept it
on October 15 as desired by Respondent in offering it, the
passage of the effective date for the overtime law, and the
October 21 proposal of a workweek provision on the same
terms as in the Dunagan contract which contains no shift
differential provision, I find that Respondent no longer had
shift differential in mind when it arrived at agreement on
November 29. Moreover, while the Union was never told
specifically that the shift differential portion of the October
15 proposal was no longer being offered by Respondent,
the latter's preclusion of it from consideration is sufficient
to prevent a finding that there was a meeting of the minds
upon its inclusion on November 29.
In any event, the Union must certainly have been aware
that no shift differential was being offered by October 21,
since there was no such provision in the Dunagan contract,
with which the Union had displayed familiarity on Septem-
ber 29 and which was relied upon by Harper for his
workweek proposal at that meeting. Further, Green's
belated discovery of the October 15 offer, upon reviewing
his notes for the ratification meeting, and his uncertainty as
to whether it had ever been specifically withdrawn demon-
strates that he had reached agreement on November 29
without regard to shift differential, and that it had not been
a consideration influencing his ultimate assent to Respon-
dent's October 21 workweek offer. Consequently, there had
been no agreement to include shift differential when a
contract was agreed upon on November 29, because
Respondent had deemed it no longer offered after October
15 and because Green had long forgotten that it had been
offered, having continued negotiations without regard to it
as a subject for consideration. In short, there had been no
meeting of the minds on shift differential because it was
not on the mind of either party.
This then leads to consideration of the effect of Harper's
postagreement telephone admission that the shift differen-
tial portion of the October 15 offer had never been
specifically withdrawn and of his suggestion that Green
include it among the items submitted to the employees for
ratification. It is apparent that at the time of this conversa-
tion Harper had been surprised when Green had resur-
rected this now-dated proposal and that he was uncertain
of the effect of his failure to have withdrawn it specifically.
Nonetheless, had he possessed full authority to make
commitments binding upon Respondent, his comments
during that converation would have sufficed to form an
agreement on inclusion of shift differential. However, he
did not possess that authority. That authority resided with
Ralph Bosse and there is no evidence that the latter had
ever assented to inclusion of shift differential after the
Union had failed to accept the October 15 package
proposal.
This arrangement whereby Ralph Bosse retained author-
ity to accept or to reject agreements before they became
binding upon Respondent has not been challenged as
being an unfair labor practice. Nor would such a challenge
be meritorious. See Gu/f States Canners, Inc., 224 NLRB
1566, 1576-77 (1976); Printing Industries of Northern
California, 204 NLRB 329, 333-334 (1973); see also
discussion and cases cited in The Anaconda Company, 224
NLRB 1041, 1051 (1976). As found above, by virtue of his
prior negotiations with Harper, of the statements made by
Harper on October 15, and of the qualifying statements on
Respondent's October 21 proposals, Green was on notice
of this limitation on Harper's authority well before the two
conversed on the telephone following the November 29
meeting. Moreover, as shown by what appears to have
been an inadvertent admission of a matter which he had
earlier attempted to avoid acknowledging having been said,
Green conceded that during this conversation Harper had
stated specifically that he "would talk to the employer"
about including a shift differential provision in the con-
tract. Such a comment could have referred to nothing other
than Harper's need to secure Ralph Bosse's approval for
570
JENSEN'S TRUCK STOP
final agreement on the matter. While the latter appears to
have taken some time weighing his final decisions,0 he
ultimately rejected any modification of the contract to add
a shift differential provision.
Therefore, it cannot be said that a final agreement to
include shift differential was achieved as a result of the
post-November 29 events. See Harry R. Pickett and Eva M.
Pickett d/b/a F & J Wire Products Co., 174 NLRB 340
(1969). Accordingly, I shall grant Respondent's motion to
dismiss the complaint.
CONCLUSIONS OF LAW
1. Bosse, Inc., d/b/a Jensen's Truck Stop, is an em-
ployer within the meaning of Section 2(2) of the Act,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
O1 Twice in December, Manager Everett Bosse told cashier Jean
Chadwick that no decision or agreement had yet been made on shif
differential, but had assured her that if it were included in the contract, it
would be retroactive. Such comments support my finding that Ralph Bosse
was considering, but had not yet consented to, shift differential in
December.
2. General Truck Drivers, Warehousemen and Helpers
Union, Local 980, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has not violated the Act in any manner
alleged in the complaint.
On the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER"
It is hereby ordered that the complaint be, and it hereby
is, dismissed in its entirety.
11 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
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.
571