Local Union #612, Teamsters

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 789 (N.L.R.B. 1974)

LOCAL UNION # 612, TEAMSTERS
Local Union #612, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers
of America , a/w International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers
of America, Ind. and AAA Motor Lines, Inc. Case
10-CB-2269
December 16, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND. MEMBERS FANNING AND
JENKINS
On June 21, 1974, Administrative Law Judge John
P. von Rohr issued the attached Decision in this pro-
ceeding. Thereafter, the Charging Party filed excep-
tions and a supporting brief.
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 brief and
has decided to affirm the rulings, findings, and-conclu-
sions of the Administrative Law Judge and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent Local Union #612, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Ind., Birmingham, Alabama, its -officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon
charges, duly filed,' the General Counsel of the National
Labor Relations Board, by the Regional Director for Region
10 (Atlanta, Georgia), issued a complaint on December 14,
1973, against Local Union No. 612 , International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, a/w International Brotherhood of Teamsters,
I The charge and amended charges herein were filed on June 6 and July
13 and 18 , 1973, respectively
By granting a joint motion of the parties at the hearing, the instant case
was severed from Case 10-CB-2307 wherein the complaint alleges viola-
tions of Sec 8(b)(1)(A) of the Act.
789
Chauffeurs, Warehousemen and Helpers of America, Ind.,
herein called the Respondent or the Union, alleging that it
had violated Section 8(b)(3) of the National Labor Relations
Act, as amended, herein called the Act, by failing and refus-
ing to meet with the Employer for the purpose of collective
bargaining. The Respondent filed an answer denying the alle-
gations of unlawful conduct alleged in the complaint.
Pursuant to notice, a hearing was held before Administra-
tive Law Judge John P. von Rohr in Birmingham, Alabama,
on March 26-28, 1974. Briefs were received from the General
Counsel, the Respondent, and the Charging Party on May 13,
1974, and they have been carefully considered. Upon the
entire record in this case and from my observation of the
witnesses , I hereby make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
AAA Motor Lines, Inc., herein called the Company or the
Employer, is an Alabama corporation with its principal of-
fice, terminal, and place of business located at Birmingham,
Alabama, where it is engaged in the intrastate transportation
of freight by motor vehicles. During the calendar year preced-
ing the hearing herein, the Employer received more than
$50,000 in gross revenue from operations which functioned
as essential links in the transportation of commodities in
interstate commerce.
The parties concede, and I find, that the Employer is en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act
II THE LABOR ORGANIZATION INVOLVED
Local Union No. 612, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Ind., herein called
the Respondent or the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Facts
The Respondent (Local 612, Teamsters) has been the col-
lective-bargaining agent of the Company's driver and dock-
men employees for 16 or 18 years. The last contract between
the parties was effective from April 1970 to June 30, 1973
This contract was the National Master Freight Agreement
negotiated by the International Teamsters Union Negotiating
Committee and an employer association. Although the Com-
pany was not a member of the employer association, its prac-
tice had been to adopt the master agreement, with minor
modifications. This it did with respect'to the last contract by
an addendum executed on June 26, 1970.
On February 26, 1973,' Frank Fitzsimmons, Chairman of
the Teamsters National Freight Industry Negotiating Com-
mittee, notified the Company and other effected employers of
its desire to negotiate changes and revisions of the aforesaid
2 All dates refer to the year 1973, unless otherwise indicated
215 NLRB No. 148
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Agreement. On March 9, the Respondent Local
sent a similar notice to the Company, with appropriate no-
tices also being served on the Federal and state agencies.
By letter dated April 6, the Company advised the employer
association and representatives of Respondent Local and the
International Union that it was withdrawing from the mul-
tiemployer bargaining unit and also that it was thereby revok-
ing the authority of the employer association to bargain on
its behalf.' On the same date, April 6, the Company, in a
special letter signed by its president, Earl Dove, and ad-
dressed to Sam Webb, the president and business administra-
tor of the Respondent Local, requested that a bargaining
meeting be held at the company offices on April 13, 1973,
with respect to a proposed new collective-bargaining agree-
ment, a copy of which proposed contract on behalf of the
Company was enclosed with the letter. Although Dove
waited in his office on the date of the proposed meeting, no
union representative appeared.
By letter of April 14, Company President Dove again
wrote Webb to request a bargaining meeting. Alluding to the
failure of any union representative to appear for his proposed
April 13 meeting, Dove this time requested that a meeting be
held at his office on April 18.4 However, he further stated
that if Webb could not be present on this date, that he furnish
"several alternative dates for a meeting within the next ten
days." Webb testified that in response to this letter he called
Mr. Kilgore , the Company's terminal manager in Birming-
ham, to advise that he could not meet on that date because
his involvement in national negotiations in Washington, D.C.
would prevent him from being in the area except on week-
ends. Dove testified that although he learned that Webb
would not be present on April 18, he learned this through his
father, John Dove, who advised that Webb had called him
and notified him to this effect.
On April 17, Dove called Webb and again requested that
a date be set for the commencement of contract negotiations.
When Webb replied that he was going to Washington later
that day and that he would not be able to meet and negotiate
until after the master contract was settled, Dove protested
that the contract ended on June 30 and that Webb's proposed
time to meet would be too late. At this point Dove reiterated
his request for a bargaining meeting, but Webb responded
that "he had rules and regulations that he had to go by, and
would not be able to meet until after the master contract was
settled."5 Dove finally asked that Webb provide him with a
copy of the Union's contract proposals and Webb agreed to
furnish them on May 11.
Dove credibly testified that he did not receive the contract
proposal on May 11, whereupon he called the union office.
Webb was not in but a secretary told Dove that she would
3 There is no issue in this case as to the timeliness or effectiveness of this
notice by the Company.
4 Although Webb testified that he advised the Company that he could not
be present on April 13 , 1 am persuaded that he was mistaken in this tes-
timony. Otherwise there would be no reason, particularly at this time, for
Dove to note in his April 14 letter that no union representative appeared
at this time. Indeed, in that letter Dove further noted that he called Webb's
office on April 13, but was informed that Webb was out-of-town. I am sure
that he would not have made this call if he had been advised in advance that
the Union would not be present. Dove, it may be noted, resides in Mont-
gomery, Alabama , whereas Webb resides in Birmingham , Alabama.
5 Credited testimony of Dove.
notify Webb that he had called. Hearing no further word,
Dove called Webb's office again on May 21. He spoke to the
secretary, who this time merely assured him that she had
advised Webb of his earlier call.
On May 14, the Company received a copy of a form letter
addressed to "Employers Withdrawing From National
Negotiations ," signed by Frank Fitzsimmons , which stated as
follows:
This will acknowledge receipt of your letter expressing
your intention and desire to engage in negotiations for
a new freight contract (over-the-road, local cartage, of-
fice and garage) on a local basis.
Since we are authorized to represent the Local Unions
involved and since our principal negotiators will be en-
gaged in negotiations in Washington, D.C., with the
major part of the trucking industry, it will be necessary
for us to appoint a properly authorized subcommittee to
meet with you. This will be done as soon as time will
reasonably permit. We assume that this will be sometime
during the month of June.
If this arrangement is not satisfactory, please let us
know and we shall endeavor to accomodate you. This
offer to negotiate with you individually is not to be con-
strued as a waiver of our position that you are obligated
and shall continue to be a part of the national multi-
employer unit.
By letter dated May 22, Dove advised Fitzsimmons that
any proposed June meeting for commencement of negotia-
tions would be unacceptable. Reviewing the past attempts by
the Company to commence bargaining, the letter concluded
with the request that Respondent Union " make arrange-
ments to meet with AAA . . . within not more than five (5)
days after your receipt of this letter."
On June 6, after receiving no response to the above letter,
the Company filed the unfair labor practice charge herein.
Webb testified that after discussing the charge with C. W.
Smith, an international representative , it was determined that
the following telegram be sent to the Company, which tele-
gram in fact was sent to Dove on June 12:
THIS IS TO ADVISE YOU THAT A REPRESENTATIVE FROM LOCAL
UNION 612, SAM WEBB, WILL MEET WITH YOU IN WASHINGTON DC
AT THE SHOREHAM HOTEL, ROOM 130, AT 9 AM ON JUNE 14TH 1973
THE PURPOSE OF THE MEETING IN WASHINGTON IS BECAUSE OF
OTHER COMMITMENTS OF LOCAL UNION 612
Dove and William Bunton, the latter a company vice presi-
dent, responded to the above telegram by flying to Washing-
ton at the appointed time and place. The morning meeting
was brief, with the parties, including Smith and Webb who
were present for the Union , agreeing to exchange written
contract proposals and agreeing to meet again at 1:30 p.m. in
the afternoon.6 However, according to the credited tes-
timony of Dove, Smith at this time stated that they "might
be allowed a break on the wages on a wage addendum but that
the work rules of the master contract would have to remain
intact."
6 Although the Company had previously furnished its contract proposal
to the Union on April 6, Webb conceded that up to this point he had only
"glanced" at it and that Smith had never seen it before.
LOCAL UNION #612, TEAMSTERS 791
Upon returning to their hotel room, the company represen-
tatives ascertained that Smith had mistakenly given them a
proposed amendment to an area supplement instead of the
Union's proposal. Accordingly, they again sought out Webb
and found him in the hotel lobby at or about 11:40. Accord-
ing to the credited testimony of Dove, as substantially cor-
roborated by Bunton, Webb at this time stated that they
"were going to agree to the master contract with the wage
addendum and that's it." He then told the company represen-
tatives that "we would meet at 1:30 and negotiate if that is
what we wanted to do, but we were wasting our time . . that
the only reason that he sent the telegram . . . was to get
around the unfair labor practice charge." He added that
"there was some 2,000 carriers that he was negotiating with
and if he allowed one short haul carrier to change off of the
master contract that he would have to deal with all of them";
and that neither he or the Union would allow any such thing
to occur." To all this Dove finally responded that there would
be no point in meeting at 1:30, but asked that they meet at
5:30 p.m. so that at that time he could at least apprise him
of the Company's objections to various provisions in the mas-
ter contract. Webb agreed to do so. -
Dove met with Webb in the hotel cocktail lounge at or
about 5 p.m. When Dove began voicing certain objections to
the master contract, such as the grievance procedure, Webb
again expressed displeasure at the Company's filing unfair
labor practice charges. He finally told Dove to return to
Alabama and to stop bothering him, that when the master
contract was settled, he and-Smith would return to Alabama
as negotiating agents and that they would settle all that
needed to be settled in half a day.' With this the meeting
concluded. Dove and Bunton returned to Alabama the next
day without further discussion with the union represen-
tatives.'
B. Conclusions
Section 8(d) of the Act provides that parties to negotiations
have a mutual obligation "to meet at reasonable times" and
to confer with a view of reaching agreement on the terms of
a contract. Applying this to Section 8(a)(5) of the Act, the
Board and the courts in numerous cases have found employ-
ers to have violated their statutory obligation to bargain in
good faith by not meeting with reasonable frequency and
promptness concerning the negotiation of a contract. See, for
example, Exchange Parts Company, 139 NLRB 710 (1962),
enfd. 339 F.2d 829 (C.A. 5, 1965); R. C. Can Company, 144
NLRB 210 (1963), enfd. in pertinent part 340 F.2d 433 (C.A.
5, 1965); The Little Rock Downtowner, 145 NLRB 1286, 1305
(1954); "M" System, Inc., Mobile Home Division Mid-States
Corporation, 129 NLRB 527, 549 (1960); J. H. Rutter-Rex
Manufacturing Company, Inc., 86 NLRB 470, 506. Since
I The facts concerning the meetings at 11 40 a in and 5 p in on June 14
are set forth above largely in accordance with the testimony of Dove, whom
I credit Dove impressed me not only as an honest witness, but as also having
a good memory concerning the details of these and other negotiating meet-
ings Insofar as Webb's testimony concerning the Washington meetings
conflicts with that of Dove, I credit the testimony of Dove
8 In July 1973, further negotiations between the parties were held in
Birmingham, Alabama However, these are the subject of an alleged refusal
to bargain by the Company in a companion complaint issued against AAA
Motor Lines, Inc., 215 NLRB No 149
Section 8(b)(3) parallels Section 8(a)(5) of the Act, it hardly
need be said that the obligations imposed on employers, as
reflected and interpreted in these cases, are likewise applica-
ble to labor organizations.
The record is clear that in the instant case a period of over
2 months elapsed from the Company's first request for a
meeting on April 13 and the abortive parley which was finally
held in Washington on June 14. Apparently Respondent's
only defense for its failure and refusal to meet with the Com-
pany during this period rests on the fact that its representa-
tives were preoccupied with negotiations on the national
level. However, the short answer to this is that a party to
negotiations may not interpose a busy schedule as an excuse
for failing to meet and confer at reasonable intervals. As the
Board stated in "M" System, Inc., Mobile Home Division
Mid-States Corporation, supra:
The record here quite clearly supports a finding that the
Respondent, in arranging meetings with the Union failed
to display the degree of diligence that proper perform-
ance of its bargaining obligations required This is so
whether or not the delays were inspired by a deliberate
scheme to engage in dilatory tactics. One may sympa-
thize with the problems of the Respondent's negotiator
in fitting the negotiating meetings into the schedule of
his busy law practice, but this provides the Respondent
with no legal excuse for the consequent inordinately long
delays tending to impair employee statutory rights. La-
bor relations are urgent matters too. If [counsel's] other
activities made it impossible for him to devote adequate
time to reasonably prompt and continuous negotiations,
it was the Respondent's obligation to furnish a represen-
tative who could. The duty to bargain in good faith
includes the duty to be available for negotiations at rea-
sonable times as the statute requires. That duty is not
discharged by turning over the conduct of negotiations
to one whose other activities make him not so available.
See, Cummer-Graham Company, 122 NLRB 1044;
Derenson 104 NLRB 273.
I think it clear that the principle explicated above is appli-
cable here. Accordingly, I find , as alleged in the complaint,
that between April 13, 1973, and on or about June 25, 1973,
the Respondent, by failing and refusing to meet with the
Company upon request, refused to bargain collectively within
the meaning of Section 8(b)(3) of the Act.' Parenthetically,
I think it should be noted that the complaint does not allege,
nor is it the General Counsel's theory, that Respondent vi-
olated Section 8(b)(3) by engaging in so-called surface bar-
gaining While I accordingly make no such finding, the facts
as previously related reflect that Respondent's invitation to
company representatives to meet in Washington on June 14,
1973, was motivated primarily "to get around" the unfair
labor practices charges filed by the Company. Accordingly,
I would hold that Respondent's conduct at the June 14 meet-
9 The record reflects that on June 25, 1973, the Respondent notified the
Company by letter that it was then ready to enter contract negotiations. The
General Counsel takes the position that from this point forward the Re-
spondent undertook to bargain in good faith, hence the above June 25, 1973,
cutoff date in the complaint insofar as the 8(b)(3) violation is concerned
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing did not satisfy its obligation to meet and bargain with the
Company within the meaning of Section 8(b)(3) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a 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
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
CONCLUSIONS OF LAW
1 The Employer is engaged in commerce and the Union
is a labor organization , all within the meaning of the Act.
2. All local truckdrivers and warehousemen employed by
the Employer at its Birmingham, Alabama, terminal, exclud-
ing all other employees, office clerical employees, guards and
supervisors as defined in the Act, constitute an appropriate
unit for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
3 The Respondent has been at all times material herein the
exclusive representative of the employees in the aforesaid
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
4. By failing and refusing to meet with the Employer upon
request with reasonable promptness and at reasonable inter-
vals, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(b)(3) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and conclu-
sions of law, and upon the entire record in this case and
pursuant to Section 10(c) of the Act, I hereby make the
following recommended-
ORDER10
Respondent, Local Union No. 612, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Ind.,
Birmingham, Alabama, its officers, agents, successors, and
assigns shall.
1. Cease and desist from:
10 In the event no exceptions are filed as povided 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
(a) Refusing or failing to bargain collectively with the
above-named employer by not meeting for contract negotia-
tions with reasonable frequency and with reasonable prompt-
ness concerning rates of pay, wages, hours of employment, or
other conditions of employment in the aforesaid appropriate
bargaining unit.
2. Take the following affirmative action which I find will
effectuate the policies of the Act:
(a) Upon request, meet and bargain collectively with the
Employer with reasonable frequency and promptness con-
cerning the negotiation of a contract.
(b) Post in conspicuous places in its offices and meeting
halls, in the State of Alabama, and at all other places where
notices to its members are customarily posted, copies of the
attached notice marked "Appendix."" Copies of said no-
tice, to be furnished by the Regional Director for Region 10,
shall, after being duly signed by an official representative of
the Respondent, be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Mail to the Regional Director for Region 10, signed
copies of the aforementioned notice for posting by AAA
Motor Lines, Inc., the latter willing, in places where notices
to employees are customarily posted Copies of said notices,
to be furnished by the aforesaid Regional Director, shall,
after being signed by the Respondent as indicated, be re-
turned forthwith to the Regional Director for disposition by
him.
(d) Notify the aforesaid Regional Director, in writing,
within 10 days from the date of this Decision and Order what
steps have been taken to comply herewith
t i In the event that the Board's Order is enforced by a Judgment of the
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 "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, meet and bargain with AAA
Motor Lines, Inc., with reasonable frequency and
promptness concerning the negotiation of a contract.
The bargaining unit is:
All local truckdrivers and warehousemen employed
by the employer at its Birmingham, Alabama, termi-
nal, excluding all other employees, office clerical em-
ployees, guards and supervisors as defined in the Act,
constitute an appropriate unit for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act.
LOCAL UNION NO 612, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS