Laciede Cab Co.

National Labor Relations Board - Board Decisions

Aug 31, 1979

244 N.L.R.B. 766 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters Local 688, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America and Laclede Cab Com-
pany. Case 14 CB 4170
August 31, 1979
DECISION AND ORDER
BY MEMBERS PENI IO(), MURPHY, ANt) TRUESI)ALE
On June 5. 1979, Administrative Law Judge Nor-
man Zankel issued the attached Decision in this pro-
ceeding. Thereafter, General Counsel and Respon-
dent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, 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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
I In view of the fact that Respondent did not except to the Administrative
Law Judge's rejection of Respondent's contention that this matter should be
deferred to the arhitral process. Member Penello does not have the issue of
whether the matter should he so deferred before him.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: The
above-captioned case was heard before me on April 2,
1979, in St. Louis. Missouri.
The charge was filed by Laclede Cab Company, hereinaf-
ter called the Employer, on September 1, 1978,1 and was
amended on September 18. A complaint and notice of hear-
ing was issued by the Regional Director for Region 14 of
the National Labor Relations Board, hereinafter called the
Board, on September 26 against Teamsters Local 688, affili-
ated with the International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America, here-
inafter called the Union.
In essence, the complaint alleges that the Union refused
to bargain collectively with the Employer in violation of
I All dates hereinafter are in 1978 unless otherwise stated
Section 8(b)(3) of the National Labor Relations Act, as
amended, hereinafter called the Act, by unilaterally at-
tempting to modify or by modifying the terms of a collec-
tive-bargaining agreement in a manner contrary to the pro-
visions of Section 8(d) of the Act.
Specifically, the Union is alleged to have repudiated that
section of the collective-bargaining agreement between it
and the Employer which required the Employer's drivers to
purchase their gasoline and related products from the Em-
ployer's service station.
The Union filed a timely answer to the complaint admit-
ting certain allegations but denying the substantive allega-
tions and that it committed any unfair labor practice.
All issues were fully litigated at the hearing: all parties
were represented by counsel and were afforded full oppor-
tunity to examine and cross-examine witnesses, to introduce
evidence pertinent to the issues, and to engage in oral argu-
ment. Post-hearing briefs have been received from counsel
for all parties. Those briefs have been carefully considered.
Upon the entire record, from my observation of the wit-
nesses and their demeanor in the witness chair, and upon
substantial, reliable evidence "considered along with the
consistency and inherent probability of testimony" (niver-
sul Camera Corp. v. N.L.R.B., 340 U.S. 474, 496 (1951)), 1
make the following:
FINDINGS AND CON(CILUSIONS
I. THE EMPLOYER'S BUSINESS
The Employer. a Missouri corporation with its principal
place of business at 600 South Vandeventer, St. Louis, Mis-
souri, at all material times was engaged in operating a taxi-
cab fleet providing transportation services in the area of St.
Louis, Missouri.
During the immediate calendar year ending shortly be-
fore issuance of the complaint, a representative period, the
Employer performed services valued in excess of $500,000.
During that same time the Employer purchased and caused
to be transported and delivered at its principal location
quantities of gasoline, automobiles, and related good and
materials exceeding $50,000 in value, of which goods and
materials valued in excess of $50,000 were transported and
delivered to the Employer's place of business and were re-
ceived from other enterprises located within Missouri. Each
of these latter enterprises received said goods and materials
directly from points located outside Missouri.
The parties agree, the record reflects, and I find that the
Employer is engaged in commerce within the meaning of
Section 2(2). (6), and (7) of the Act.
II. THE UNION-RESPONDENI
The parties agree, the record reflects, and I find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
The parties further agree and I find that at all material
times the Union has been the exclusive collective-bargain-
ing representative of the following unit of employees which
2 The General ('ounsel's unopposed motion to correct the official record is
hereb) granted.
244 NLRB No. 128
766
I.A('I.FDE (CAB COMPANY
I find appropriate for collective-bargaining purposes within
the meaning of Section 9(b) o the Act:
All persons who own, lease. rent, or borrow equipment
which they personally drive in the performance of their
duties as the Employer's employees, excluding all per-
sons not occupying the status of employees within the
meaning of the Act.
111. 111L Al.l(tiE) I NIAIR I ABOR PRA( I( tiS
A. Background and Scenario of Events'
Since at least February 1, 1975. the Union and Employer
have maintained a contractual collective-bargaining rela-
tionship with one another. Each contract between those
parties required bargaining-unit employees to purchase
gasoline, motor oil, and lubricants from the Employer's ser-
vice station. The price to be paid by the employees was
determined by averaging the retail prices charged by six
other service stations.
The collective-bargaining agreement for the period Feb-
ruary 1,. 1975, to February 1, 1977, specifically named the
six stations whose retail prices were to be averaged. Appar-
ently, previous collective-bargaining agreements also ex-
plicitly identified those stations. It is clear that the stations
named in these previous contracts were selected by the Em-
ployer. submitted to the Union. and routinely incorporated
into the contracts.
The parties negotiated a successor contract to that which
expired in 1975. This is the current agreement effective July
I, 1977, to June 30. 1980. This current agreement reiterates
the obligation of unit personnel to purchase their gasoline.
motor oil, and lubricants from the Employer's service sta-
tion.
However, contrary to the earlier contracts, the 1977-80
agreement does not contain a list of the stations to be aver-
aged for a price. This omission was intentional. During the
negotiations for the current agreement the Union claimed
the right to participate on an equal basis with the Employer
in the selection of the service stations whose prices were to
be averaged. Thus, the parties agreed to the following
clause:
The prices shall be governed by the average retail price
at the following stations agreed to 1b the Company and
the Labor Management Committee. (Emphasis sup-
plied.l
The labor management committee is a creature of the col-
lective-bargaining agreement. It is supposed to consist of an
equal number of employer and union designees but not less
than three union members. In practice, the bargaining unit
representatives on the labor management committee com-
prised part of the Union's team during collective-bargain-
ing negotiations.
As noted, the 1977 80 contract as signed by the parties
did not contain the listing of the stations to be averaged.
I Substantially all material facts are undisputed. Where critical variations
exist, they are discussed and resolved. In the interest of hrevilt onlv the facts
deemed relevant to the issues are recited Nonetheless, I have considered all
matters litigated and arguments of counsel thereon. Omitted matter is
deemed irrelevant, superfluous, or not credible.
Instead, it was understood that the parties would continue
negotiations on that issue. In fact, after the contract was
signed the parties did meet to attempt negotiations on those
stations. However, there was disagreement upon the
method of selecting the stations fbr price averaging. The
Union filed a grievance on November 7, 1977. The dispute
was submitted to arbitration. An arbitration hearing was
conducted on June 6. 1978. The issue before the arbitrator
was whether the current collective-bargaining agreement
required "mutual agreement in the selection of gas stations
to be used to determine the average price of gasoline to he
charged drivers" at the Employer's pumps.
The arbitrator's award issued on July' 20. He concluded.
in agreement with the Union. that the stations to be in-
serted in the contract were subject to mutual agreement of
the Employer and the labor management committee. The
arbitrator declared that the parties would mutually deter-
mine the method of selection, and that each party should
designate an equal number of stations. The arhitrator di-
rected the parties to reach agreement on selection of the
stations within 4 weeks of his award.
Thereafter the Union and Employer met to achieve com-
pliance with the award. On August 10 union business repre-
sentative Terry Phelps met with unidentified employer rep-
resentatives. They were unable to reach agreement.
apparently because the Employer insisted that the six sta-
tions listed in the 1975 77 contract be once again written
into the current agreement.
On August 17 the Union's principal spokesman, Ken
Carroll, met with the Employer's owner. A. J. Cervantes.
Cervantes did not appear as a witness at the hearing. Thus.
Carroll's testimony of what occurred between them is un-
contradicted. In general. I found Carroll to be direct, forth-
right, and precise.
According to Carroll, he and Cervantes established the
following ground rules for the selection of the service sta-
tions: (1) a total of six stations would be used for averaging
prices; (2) the Employer and Union would each select three
stations: (3) only union stations would be selected: and (4)
no stations where other products or services are built-in as
an increase or decrease in gasoline prices would be se-
lected. 4
On August 18 the parties again met. The Employer was
represented by Cervantes and its president. 0. Ludwig. The
Union was represented by Carroll. Phelps, and four em-
ployees who constituted the labor management committee.
There was considerable discussion concerning the type and
number of the stations to be used for averaging. Carroll's
uncontradicted testimony shows that the Union orally sub-
mitted the names of three stations which met the guidelines
developed by Cervantes the previous day. The employer
representatives would not agree with the three stations pre-
sented by the Union.
At that juncture Carroll warned "that if we would not
reach an agreement that the Union would begin to-the
drivers would begin to purchase gasoline" at one of those
three stations.
Lugwig testified that Carroll's comment was issued in a
more threatening tone. Ludwig testified that Carroll said,
"You better make up your mind because we (the Union)
' Such stations are colloqulalls called "gimmick" stations.
767
I)EC(ISI()ONS O()F NATIONAL LABOR RELATIONS BOARD
are going to kind of. you know, make the drivers not buy
gas there" (at the Employer's station).
I accept Carroll's testimony as more reliable than Lud-
wig's wherever they are in conflict. As already noted. Car-
roll was direct and precise throughout his testimony. In
contrast, I.udwig was confused. unsure, and imprecise. By
this observation. I do not intend generally to discredit Lud-
wig. lie impressed me with a desire to tell the truth. None-
theless. pervading Ludwig's testimony are numerous indica-
tions of a clear inability to accurately recall events. Carroll
was markedly more accurate in his description of what oc-
curred. Additionally, his oral testimony before me is fully
corroborated by the documentary evidence. Accordingly. I
find Carroll to be more reliable a witness than Ludwig.
According to Carroll. the Employer then suggested that
each party submit a list of 10 stations for averaging. The
Union claimed that such a large number would be adminis-
tratively impossible to handle on a weekly basis. (It was
customary to make weekly price averaging.) The Union
suggested remaining with three stations for each party. No
agreement emanated from the August 18 meeting.
By letter dated August 18 and delivered that day Carroll
set forth its list of three stations in writing and asked the
Employer to provide its proposed stations on August 20.
(This latter date was the deadline set by the arbitrator for
the parties to reach agreement.) Carroll indicated in this
letter, "in the event that the parties cannot reach an agree-
ment prior to this time, the Union will begin to purchase
gasoline at one of the above-listed stations."
On August 20 the Employer responded to the Union's
August 18 letter by declaring that it would consider any
refusal by unit drivers to purchase from its service station a
breach of contractual obligations. Enclosed in this letter
was a list of 10 stations for averaging. The Employer re-
quested the Union to submit an additional seven stations by
midnight August 20. In the event that the Union failed to
comply the Employer's letter stated that the Employer
would average out the 10 stations it selected and establish a
price on that basis.
On August 21 the parties met again. The identity of those
in attendance and what was said are obscure. However, it is
undisputed that this meeting ended without agreement
upon selection of the station for averaging or on tile price to
be charged to unit employees.
The Employer's general manager. G. Standley, testified
without contradiction that on August 21 he asked Phelps
whether he (Phelps) was telling drivers not to buy gasoline
from the Employer. It is undenied that Phelps answered
that he was telling the drivers to go to the stations with the
fairest price.
On August 22 Carroll wrote to Ludwig. He confirmed
that no agreement was reached on August 21. Further, Car-
roll stated. "until the time that an agreement has been
reached, the drivers may purchase the gasoline at any sta-
tion which has a fair and reasonable price."
Also on August 22 Carroll wrote a separate letter to Lud-
wig. This was to respond to the Employer's August 20 re-
quest for additional stations. Thus, Carroll's August 22 let-
ter contained the names and locations of seven additional
stations.
On August 23 Ludwig wrote to Carroll. He complained
that the instruction to the drivers to refrain from making
purchases at the Employer's station was a contract viola-
tion. Also. in salient part, Ludwig noted the recommenda-
tion contained in Carroll's August 18 letter that the drivers
deal with any one of the three stations identified in the
August 18 letter.
On August 25 the parties met again. Ludwig and Stand-
ley represented the Employer. The Union was represented
by Carroll and the union secretary-treasurer. Gamache.
Gamache did not testify at the hearing. The facts of what
occurred at this meeting are derived from the composite of
the uncontradicted and mutually corroborative portions of
the narrations of Carroll, Ludwig, and Standley.
The session opened by Ludwig asking whether the pres-
ence of the labor management committee was necessary.
Carroll said that the entire committee was not required obr
negotiations. Bargaining ensued. The Employer agreed to
limit the number of stations to three selected by each party.
One of the stations submitted by the Employer was an
Amoco station located at Woods Mills Road. Gamache
noted that the price at Woods Mill was considerably higher
than prices at the other stations. He asked the reason for
this disparity. Ludwig replied that Woods Mill was situated
in an affluent neighborhood. The prices submitted for some
of the stations on the list were checked by telephone.
Woods Mill was not so checked.
The negotiators agreed on a total of six stations and im-
mediately made their averaging computations and calcu-
lated the price to be used at the Employer's service station,
Standley and Ludwig testified that the Employer agreed
to set its pumps at the agreed price at once. Thus, the Gen-
eral Counsel and Employer contend that the parties
reached complete agreement on the outstanding contract
issue at this meeting. On the other hand. Carroll explicitly
testified that the various agreements were tentative.
Both Carroll and Standley testified that Carroll said the
labor management committee needed to be apprised of
what transpired at the August 25 session. Carroll, uncontra-
dicted on this point, further testified that Ludwig asked the
reason for meeting with the full committee. In response
Carroll showed Ludwig the arbitrator's decision and
pointed to that portion of the award in which the arbitrator
specifically indicated that the labor management committee
would be party to a final agreement. Thus, Carroll read the
following language from the arbitrator's decision to Lud-
wig: "The arbitrator finds that the clear language of the ...
contract states that the stations to be used to determine the
average retail price . . . at the Company pumps is to be
governed by stations agreed to by the Company and the La-
bor Management Committee. This means that the parties
have agreed to select these stations together. " (Emphasis sup-
plied.)5
Ludwig said that he would be unavilable to meet with the
full committee that Saturday. However, Standley was avail-
able, and a meeting was arranged for 10 a.m. the next day.
On August 26 before meeting with Standley Carroll con-
ferred with the labor management committee. The employ-
ees complained that Woods Mill was located outside the
' The quoted language is an excerpt from the arbitrator's decision, first
par. p. 15
768
LACLEDE CAB COMPANY
tow zone, the area within which the Employer would pay
towing charges. When Carroll and the full committee met
with Standley that day they told him of their objections to
using Woods Mill for averaging purposes. They suggested
to Standley that another station within the tow zone but
with prices comparable to Woods Mill he substituted.
Standley had no authority to do this. Further action was
deferred.
Further investigation by the Union revealed that the
price used by the Employer for the Woods Mill station was
based upon a so-called "blue chip pump." This was an in-
flated price to cover the cost of a car wash provided with a
gasoline purchase. The full-service price cost less per gallon
than the blue-chip price.
On August 28 Ludwig and Standley met with Carroll.
Phelps, and the labor management committee. Carroll ob-
jected to Woods Mill because it was outside the tow zone
and also because the price was based upon a blue-chip
pump. Ludwig and Standley refused to eliminate Wood
Mill. Carroll said that the drivers would be told thev could
purchase gasoline and related products at any station which
provided a fair and reasonable price.
Later on August 28 Carroll wrote and hand delivered a
letter to Ludwig. Carroll asserted that the parties could not
reach agreement on a price to be paid by unit drivers. Car-
roll's letter reiterated the Union's position that "until the
time an agreement has been reached, the drivers may pur-
chase the gasoline at any station which has a fair and rea-
sonable price."
On August 31 Ludwig wrote to Carroll. Ludwig asserted
that the parties reached agreement on August 25 upon six
stations for averaging. Included in this agreement was
Woods Mill. Ludwig declared that the Employer had ful-
filled its collective-bargaining obligation and requested the
August 25 agreement be reduced to writing and incorpo-
rated into the current collective-bargaining agreement. Fi-
nally, Ludwig stated that the Employer considered the
Union's actions to constitute a breach of contract and an
unfair labor practice.
There is evidence showing the use of the Employer's ser-
vice station by unit employees. Thus, the parties stipulated
that gasoline purchases dropped substantially subsequent to
August 20 but increased again on August 25. Gas purchases
again dropped on August 28 and did not resume normal
levels until November 14. On this last date the Employer
agreed to exclude the Woods Mill station from pricing its
own pumps.
B. Analysis
Complaint paragraphs 9 and 10 allege that since on or
about August 18 the Union, without complying with the
requirement of Section 8(d), refused to bargain with the
Employer "by attempting to unilaterally change and/or
modify, and by unilaterally changing and/or modifying"
the contractual provision requiring drivers to purchase their
fuel, motor oil, and lubricants from the Employer's service
station.
The complaint allegations are narrowly drawn. They
clearly refer to the Union's activities in August. Nonethe-
less, the General Counsel and Employer contend in their
briefs that the previous contractual provisions and long-
standing past practice firmly established the Employer's
service station as the place where drivers were to purchase
the named supplies. Thus, the theories propounded by the
General C'ounsel and Employer are more expansive than
the literal language of the complaint.
In effect the General Counsel and Employer argue that
the Union's August bargaining position and advice to unit
employees constituted a ban upon the use of the Employer's
service station. It is urged that such a ban during the mid-
term of the current collective-bargaining agreement com-
prises an unlawful modification of that contract. In this
connection the Employer urges that at the time the contract
was signed, in July 1977. the Union agreed unconditionally
that unit employees were to make their purchases from the
Employer's service station. The General Counsel implicitly
joins in this proposition.
The Union contends that there was no effective agree-
ment between the parties in existence at any material time.
It claims that in July 1977 the parties merely agreed to
engage in further negotiations upon the issue of station se-
lection and pricing. Thus, the Union asserts that in and
after July 1977 there was only a conditional agreement to
continue purchasing at the Employer's service station. The
Union further argues that the August 25 agreements were
tentative. being subject to approval of the full labor man-
agement committee.
The foregoing description of the pleadings and the re-
spective positions and contentions which flow brings into
sharp focus what I consider a threshold issue, namely, the
precise nature of the parties' obligations with respect to pa-
tronage of the Employer's service station. Resolution of this
crucial issue will determine whether the Union engaged in
the alleged unlawful unilateral conduct. If the parties in-
tended to alter past practice in selection of the stations for
price averaging there exists no predicate for concluding that
the Union's activities amount to an attempt to modify or an
actual modification of a collective-bargaining agreement. In
counterposition, if the parties had struck an unfettered bar-
gain to continue their past practice on the use of the Em-
ployer's service station then the Union clearly engaged in
unlawful conduct.
Analysis of the totality of evidence persuades me that the
current collective-bargaining agreement contains but a con-
ditional commitment by the Union that unit employees will
patronize the Employer's service station. It is permissible
that I interpret the terms of the collective-bargaining agree-
ment. The Supreme Court observed. in N. L.R.B. v. Strong,
d/b/a Strong Rooting & Insulating Co., 393 U.S. 357. 361
(1969), that the Board may "if necessary to adjudicate an
unfair labor practice, interpret and give effect to the terms
of a collective-bargaining contract."
I consider the pivotal issue before me to require a deter-
mination of what is meant by the following language of the
current collective-bargaining agreement as it is contained
within the Employer's special rules for gasoline & oil:
All drivers must purchase their gasoline, motor oil and
lubricants from the service station of the Employer.
The prices shall be governed by the average retail price
at the following stations agreed to by the Company
and the Labor Management Committee.
769
I)I7( ISIONS ()1: NATIONAL LABOR RELATIONS BOARD
The General Counsel and Employer would rely only on
the first quoted paragraph immediately above. I agree that
those isolated words reflect an intent to continue the well
established historic::l program of utilization of the Employ-
er's service station.
However, to adopt such a limited approach inhibits me
from considering the full context of the disputed contract
clauses. Also, such a procedure would ignore the plain
meaning of the words used, the parties' attendant actions.
and the arbitration proceeding. I consider this patently
prejudicial to a fair resolution of the parties' rights. One
need go no further than the contents of the disputed clauses
to conclude the instant problems. I perceive no latent ambi-
guities such as would permit resort to extrinsic evidence. 4
Williston on Contracts 627 (Third Edition).
It is self-evident that the language of the gasoline and oil
rule had been changed in 1977. This is clear by comparing
the relevant clauses in the current agreement to those in the
1975-77 contract. Additionally, the oral testimony reflects
the fact that the parties intended to make a change from
past practice. The change was to assure that the Union had
input in determining the stations used for price determina-
tion at the Employer's service station. The second para-
graph of the pertinent contract provisions undeniably was
inserted to assure such participation.
There is no legitimate cause to separate the two contract
paragraphs. Only when read together do they provide the
full meaning of all the words used. I conclude that when
viewed conjunctively the second paragraph qualifies the
first. Specifically, I find that, in the backdrop of the bar-
gaining history, the Union made no absolute agreement for
drivers to purchase their oil products at the Employer's ser-
vice station. I find the clear and unambiguous language of
the total gasoline and oil rule to impose the obligation to
buy the stated products after the parties reached agreement
upon the station to be used for price averaging.
As already noted, it is undisputed that no agreement
upon the service stations had been reached prior to August
25. Accordingly, I find that none of the Union's conduct
before August 25 was tantamount to an attempted or actual
unlawful unilateral change. There simply was no firm
agreement which the Union's pre-August 25 activities dero-
gated.
I have carefully studied the precedent cited by the Gen-
eral Counsel and Employer. I find them inapposite or dis-
tinguishable. Those decisions support the general proposi-
tion that unilateral changes in contract terms by a union
violates Section 8(b)(3). However, there are factors which
do not apply to the instant situation.
The General Counsel places principal reliance upon
Communications Workers of America, AFL-CIO, Local
1170, Rochester Telephone Corporation, 194 NLRB 872
(1972), enfd. 474 F.2d 778 (2d Cir. 1972). In that case the
Board concluded that the parties actually reached an agree-
ment upon a procedure for temporary assignment of super-
visory positions to unit employees. Thus when the union
membership voted, in midterm, to ban acceptance by its
members of temporary supervisory positions, the Board
held that the union violated Section 8(b)(3). In Local 1170
the Board observed that the employer's agreement to limit
the period of such temporary assignments "became a part
of the contemporaneous bargain which the parties had
made" (194 NLRB at 873). That agreement was contained
in a letter but was not literally written into the collective-
bargaining agreement. In the case at bar I have found the
factual situation entirely different. The parties herein
merely agreed to continue negotiations and, hopefully, to
agree in the future upon the service stations to be used for
price averaging. Herein the obligation relative to purchase
from the Employer's service station was executory.
In Brotherhood of Painters. Decorators and Paperhang er.
of American, A FL CIO. District Council No. 9 of New York
CitY, (Westgate Painting and Decorating Corp., etc.), 186
NLRB 964 (1970), the Board held that a union violated
Section 8(b)(3) when it unilaterally enforced a weekly pro-
duction quota. In that case there was no evidence of the
earlier existence of fixed production quotas. Also, the bar-
gaining history failed to reflect the fact that the parties con-
templated a change from past practice. Thus the union's
enforcement of a quota unquestionably constituted a modi-
fication of the past practice. In the instant case it is undeni-
able that the material contract provisions emanated from
an intent of the parties to make a change from their past
practice.
I conclude that the other cited cases such as Cormnunica-
tions Workers of America, Local 1122 (New York Telephone
Company), 226 NLRB 97 (1976). and United Marine Divi-
sion Local 333 MOTC Acquisition Corp., 226 NLRB 1214
(1976) are likewise distinguishable. In the former case there
was no agreement to change past practice. Thus a unilateral
ban on accepting temporary supervisory assignments was
held to violate Section 8(b)(3). In the latter case a union's
insistence upon a change in working conditions for employ-
ees it represented was held to be an attempt to unilaterally
change and modify the working conditions of those em-
ployees in the midst of their contract. However, an element
not present herein was contained in the Local 333 case.
Specifically. the Board held that the union's insistence upon
the change in working conditions amounted to an attempt
to bargain upon a nonmandatory subject of bargaining.
Thus there was an additional ground in Local 333 to find
that the union there unlawfully refused to bargain. Addi-
tionally, the union was found to have engaged in unlawful
secondary activity. I consider the Local 333 case to provide
a context of union activity more readily susceptible to a
finding of a Section 8(b)(3) violation than the instant case.
In sum, I conclude that none of the cited decisional au-
thority is properly a basis for a Section 8(b)(3) violation
herein because of the substantial and material factual dif-
ferences.
A question remains: Of what effect are the agreements
concededly reached on August 25? If they are tentative, as
the Union urges, then the Union's post-August 25 conduct
can be considered privileged as a lawful exercise of eco-
nomic persuasion to bring a bargaining opponent to heel.
Such actions do not violate Section 8(b)(3). N.L. R. B. v. In-
surance Agents' International Union, AFL CIO (Prudential
Ins. Co.), 361 U.S. 477 (1960). If the August 25 agreements
are conclusory or preemptive then it may be decided that
the Union attempted to modify the August 25 agreements
770
LACLEDE CAB COMPANY
by continuing its position that employees could purchase
their fuel and related products at stations other than the
Employer's.
My examination f the relevant evidence convinces me
that the August 25 agreements are properly characterized
as tentative. Several factors militate this conclusion. They
are:
(1) The explicit contract language of the second
paragraph of the Gasoline and Oil Rule clearly con-
templates participation of the Labor Management
Committee in any agreement upon the stations to be
used for price averaging:
(2) The August negotiations were undertaken pur-
suant to the arbitrator's mandate that bargaining
should be held between the Employer and Union. The
arbitrator took particular care to declare the stations to
be used for price averaging were subject to mutual
agreement of the Employer and the Labor Managenlent
Committee;
(3) The Employer itself, after the August 18 meet-
ing, repudiated the ground rules established only the
preceding day. Those ground rules had been arranged
between only Cervantes and Carroll. However, the Au-
gust 18 section included the Labor Management Com-
mittee.
Although Cervantes earlier agreed to a limit of three
stations to be selected by each party, on August 18, he
increased the number of stations to ten to be desig-
nated by each party. I consider this incident to mani-
fest the Employer's own belief it was not bound to any
agreement unless made with full union committee:
(4) At the August 25 meeting. Carroll physically
displayed and read that portion of the arbitrator's deci-
sion which found the Labor Management Committee
to be a necessary party to agreement upon the stations
selected for price averaging: and
(5) The August 26 meeting between Standley and
the Labor Management Committee was arranged at
the August 25 session. It is illogical and inconsistent
for the Employer to have agreed to participate in the
August 26 session if it merely was informational. This
is what Ludwig and Standley claimed. The General
Counsel acknowledges a discrepancy between their tes-
timony and that of Carroll on this subject. Thus, as
noted supra, Carroll testified he told those present on
August 25 that there could be no agreement without
assent of the Labor Management Committee. The
General Counsel argues this testimonial disparity is
harmless and need not be resolved. I disagree. I find
this matter relevant. Its resolution establishes a mani-
festation of the nature of the August 25 agreement.
I have found Carroll's version of what occurred on Au-
gust 25 the most reliable. Simply stated, I find that he un-
equivocally and forcefully advised Ludwig and Standley on
that date of the necessity to involve the labor management
committee in the agreement. It is reasonable to conclude, as
I do, that the advice gave rise to the August 26 meeting and
Standley's presence. Thus this entire incident constitutes
objective evidence that both parties actually understood the
August 25 agreement to be tentative.
In so concluding I am not unmindful of the evidence
which shows that on August 25 the Employer set its gas
pumps at the rate agreed on during the August 25 session.
That action, in my view, does not necessarily bind the
Union. It amounts to a gratuitous undertaking by the Em-
ployer which, in retrospect. was premature. In the context
of Carroll's August 25 insistence upon labor management
committee involvement there is little probative value to the
posting of the new prices on August 25.
In sum and upon all the foregoing I conclude that the
agreements made on August 25 were tentative, subject to
the assent of the full labor management committee. Addi-
tionally. I find that on August 26 and at all times thereafter
relevant herein, the parties had not reached agreement
upon the stations to be used for price averaging. Accord-
ingly. I conclude that the Union was free to exercise the
proven economic tactics to achieve such an agreement. In
these circumstances, I find the Union's conduct after Au-
gust 25 did not constitute an attempt to modify or a modi-
fication of any part of the collective-hargaining agreement
between the parties.
In its brief the Union raises for the first time the defense
that the Board should defer a decision herein to the con-
tractual arbitration procedure. n essence. the Union argues
that a decision herein "necessarily depends upon the correct
interpretation of a contract." The Union suggests that this
function is more within the competence of an arbitrator
than within the Board. However accurate that observation
may be the Board has not been excluded from such inter-
pretive tasks. N. L.R.B. v. Strong, supra.
I recognize that deferral of refusal to bargain allegations
is appropriate in certain circumstances. Rov Robinson, Inc.,
d/b/a Roy Robinson Chevrolet, 228 NLRB 828 (1977): Cro-
ation Fraternal Union of America, 232 NLRB 1010 (1977).
Nonetheless. I find that deferral to arbitration would serve
no useful purpose herein. The contract interpretation issue
has already been determined by the arbitration process.
That determination was the foundation for the bargaining
between the parties in August. Moreover, it does not appear
that an arbitrator would simultaneously resolve the unfair
labor practice issue which is before me. Accordingly, I con-
clude that deferral to arbitration is not appropriate herein.
Upon all the foregoing I find that the allegations that the
Union refused to bargain in good faith in violation of Sec-
tion 8(b)(3) of the Act are not supported by a preponder-
ance of evidence.
Upon the basis of the foregoing of fact and the entire
record in this proceeding. I make the following:
CONCLUSIONS OF LAW
I. Laclede Cab Company is an employer engaged in
commerce within the meaning of Section 2(2), (6). and (7)
of the Act.
2. Teamsters Local 688, affiliated with the 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. All persons who own, lease, rent, or borrow equip-
ment which they personally drive in the performance of
771
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their duties as the Employer's employees, excluding all per-
sons not occupying the status of employees within the
meaning of the Act, constitute a unit appropriate for pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act.
4. The Union has not committed any of the unfair labor
practices alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law.
and the entire record in this case and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER6
The complaint herein is dismissed in its entirety.7
I 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.
7 n view of' this disposition it is unnecessary to rule upon General Coun-
sel's request for interest to be computed at a 9-percent rate.
772