Mistletoe Express Service

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 273 (N.L.R.B. 1989)

MISTLETOE EXPRESS SERVICE 273
Mistletoe Express Service and Michael D. Reynolds
Motor Expressmen's Union and Michael D. Reyn-
olds. Cases 16-CA-12860 and 16-CB-2799
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND DEVANEY
On April 14, 1988, Administrative Law Judge
Joan Wieder issued the attached decision . The Re-
spondent Employer , Mistletoe Express Service,
filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the
judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs' and
has decided to affirm the judge 's rulings, findings,2
and conclusions only to the extent consistent with
this Decision and Order.
The complaint alleges, inter alia , that the Re-
spondent Employer (the Employer) violated Sec-
tion 8(a)(3) and (1) by its institution of a practice of
laying off full-time unionized employees and the
subsequent replacement of these workers with non-
union casual employees . The judge sustained this
allegation and found the 8 (a)(3) violation sought by
the General Counsel . The Employer excepts, argu-
ing that the General Counsel failed to establish that
it acted with a discriminatory motive . For reasons
set forth below, we agree with the Employer.
The facts, as more fully set forth by the judge,
may be briefly summarized as follows . The Em-
ployer, an Oklahoma corporation , is a regional
common carrier engaged in interstate commerce by
the transportation by truck of freight and commod-
ities . The Employer has terminals in Oklahoma,
Texas , Arkansas , Kansas , Missouri , Tennessee, and
i The Respondent Employer has requested oral argument . The request
is denied as the record , exceptions, and briefs adequately present the
issues and the positions of the parties.
2 The Respondent Employer has excepted to some of the judge 's credi-
bility findings The Board 's established policy is not to overrule an ad-
ministrative law judge 's credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products , 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d
Cit. 1951 ). We have carefully examined the record and find no basis for
reversing the findings.
The Respondent Employer has requested a new hearing , contending
that the judge's findings reflect a bias against its positions and demon-
strate that it did not obtain a fair hearing After carefully examining the
record and the judge 's decision , we find that the judge made no prejudi-
cial rulings or demonstrated bias against any party in her analysis or dis-
cussion of the evidence . Accordingly, the Respondent Employer's con-
tention that it did not receive a fair hearing is without merit and its re-
quest for a new hearing is denied.
Mississippi . The Employer and the Respondent
Union (the Union) have had a collective-bargaining
relationship since 1940. The Union represents only
employees of the Employer. The most recent col-
lective-bargaining agreement was in effect from
March 1, 1985, to March 1, 1987.
In January 1986 , the Employer requested re-
opening the contract to seek concessions from the
Union. The Employer claimed dire financial diffi-
culties due to the collapse S of the oil industry and
increased competition . The Union ultimately
agreed to reopen the contract and engaged in ne-
gotiations with the Employer . In March, the par-
ties agreed on modifications to the contract , includ-
ing a 15 -percent reduction in wages . The union
membership ratified the modifications only after
the Employer agreed to an equal percentage roll-
back in management staffing or salaries . Another
midterm modification agreed to by the parties con-
cerned section 24 of the contract that dealt with
the Employer's use of casuals . 3 This modification
provided that unit employees who worked less
than 40 hours per week would still earn union scale
for all hours worked .4 Thus, unlike in the past, unit
employees who worked less than 30 hours during a
week would not lose their contract benefits or
union membership and become nonunion casual
employees . However, this modification also meant
that unit employees would not be permitted to opt
to take a layoff (rather than work fewer than 30
hours) and receive unemployment benefits . Rather,
they had to work the reduced hours per week or
be terminated.
In June 1986, the Employer again requested that
the Union allow the reopening of the contract for
further negotiations and concessions due to the suc-
a Casual employees were excluded from the coverage of the contract.
Thus, they were not paid union scale and were not eligible for member-
ship in the Union.
The contract, sec. 24, provided.
The company may utilize casual employees to work in all classifica-
tions (except LINE HAUL DRIVERS) provided by this agreement
However , no such employee may be utilized for more than thirty
(30) hours per week for two consecutive weeks. For each casual
who works an average of thirty (30) hours a week for two consecu-
tive weeks, then and in that event , the company will offer regular
full time employment to the casual or casuals who have the earliest
original date of hire.
In addition , casuals may not be used unless there is a four (4) hour
interval between the work schedules of casuals Casuals may not
drive except in the case of emergency when there are no regular full
time qualified employees working and available at the time of [sic]
the emergency driving work is required.
The use of casuals as provided in this section is to relieve the peak
work loads of the company The use of casuals that defeat the other
sections of this agreement shall be subject to the grievance proce-
dures as provided for in Section 13.
4 Though this contract modification referred to full -time employees
working less than 40 hours per week , it appears that , prior to the modifi-
cation , employees working less than 30 hours per week were casuals and
those working more than 30 hours were considered full-time employees.
295 NLRB No. 33
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cess in Texas of competitor United Parcel Service.
The parties thereafter negotiated a memorandum of
understanding , to be effective July 21, 1986, con-
taining further concessions. About August 27, 1986,
the union membership voted to reject the memo-
randum . However, the memorandum of under-
standing allowed for the implementation of its pro-
visions prior to membership approval and permit-
ted their continued implementation during the sub-
sequent reopened negotiations.
During the continuing negotiations in the
summer of 1986, the Union, per the wishes of the
membership, proposed, and the Employer agreed,
to reinstate the pre-March 1986 policy in regard to
unit employees working less than 30 hours per
week . The parties agreed to return to a policy of
granting the unit employees ' wish to be laid off and
receive unemployment rather than working at
union scale less than 30 hours per week . This also
meant that any employee choosing to work less
than 30 hours would become a casual and thus no
longer be entitled to either union scale or member-
ship in the Union.
The union membership again rejected the parties'
contract modifications on September 18. However,
based on the parties' agreement, several conces-
sions were nonetheless implemented during the
July-September period , including that which per-
mitted employees to choose between layoff and
casual status . Ultimately , on October 6, the union
membership ratified a revised memorandum of un-
derstanding.
On August 25 and September 10 and 15, the Em-
ployer made substantial layoffs of full-time work-
ers. These layoffs, in turn, were accompanied by an
increased use of casual and temporary employees,
including those employees who chose to accept
nonunion casual status rather than being out of
work.5 The General Counsel contends that these
Employer actions violated Section 8(a)(3) and (1)
of the Act.
Essentially, the General Counsel argued, and the
judge found, that the Employer laid off unionized
unit employees and increased its use of nonunion
casual employees in retaliation for the union mem-
bership 's failure in late August 1986 to ratify the
concessions set forth in the July memorandum of
understanding . Thus, the judge concluded:
5 The judge commented on the difficulty in assessing the copious docu-
ments in the record , i e, primarily the Employer 's employee reports (des-
ignated "weekly reports") However , based on her review of the exhibits
and the record as a whole , the judge ultimately concluded , and we agree,
that the Employer , at times material, laid off full-time employees and sub-
stantially increased its use of casual and temporary employees.
Also, like the judge at fn . 23 of her decision, we deem it appropriate,
for purposes of our discussion , to view casual and temporary employees
as being essentially the same.
The record contains unrefuted evidence that if
the Union and its members acquiesced to Mis-
tletoe 's bargaining demands there would not
have been the wholesale layoff of regular dock
workers and the substitution of casuals to per-
form their work.
Our reasons for disagreeing with the judge's con-
clusions ' are as follows . As a preface to our discus-
sion , we first note, as set forth by the judge, that
the General Counsel has not alleged that the Em-
ployer's actions were inherently destructive of em-
ployees' Section 7 rights.6 Thus, the General
Counsel has conceded that, in order to establish a
violation of Section 8(a)(3) of the Act, he must
prove that the Employer acted for antiunion rea-
sons.
Second , as also noted by the judge , the com-
plaint does not allege that the Employer 's layoffs
of regular employees and increased use of casuals
violated Section 8(a)(5) and (1) of the Act. Thus,
we do not have before us a contention that an
8(a)(3) violation flows from a finding that the Em-
ployer 's actions violated Section 8(a)(5).7 The ab-
sence of an 8(a)(5) allegation negates any inference
of unlawful antiunion intent that might be drawn
from a finding of an unlawful failure by the Em-
ployer to adhere to the terms of the contract.
Thus, the issue here is whether the Employer's
actions were motivated by animus toward the
union membership 's failure in August 1986 to ratify
the concessions. Because the issue turns on employ-
er motivation , the teachings of Wright Line8 are ap-
plicable here.
In Wright Line, the Board set forth its test of
causation for cases alleging violations of Section
8(a)(3) of the Act. First, the General Counsel must
make a prima facie showing sufficient to support
the inference that protected conduct was a moti-
vating factor . in an employer's decision. Once this
is established, the burden shifts to the employer to
demonstrate that the same action would have taken
place even in the absence of protected conduct.
Applying Wright Line, we find that the General
Counsel's prima facie case was seriously flawed.
Surely, the union membership's voting in August to
reject the concessions constituted protected con-
° See NLRB v. Great Dane Trailers, 388 U.S. 26 (1967).
' Cf Hydro Logistics, 287 NLRB 602 (1987). In Hydra Logistics, the
Board found that an employer violated Sec . 8(aX5), (3), and (1) of the
Act by transferring unit work and laying off unit employees in retaliation
for a union 's failure to grant requested concessions However, in Hydra
Logistics, the Board found that the employer 's actions were motivated by
antmmon considerations and were part of a scheme to avoid its obliga-
tions under its collective-bargaining agreement.
° 251 NLRB 1083 ( 1980), enfd . 662 F 2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 ( 1982), approved in NLRB Y. Transportation Manage.
ment Corp., 462 U.S. 393 (1983).
MISTLETOE EXPRESS SERVICE
duct . However , the elements of timing and knowl-
edge do not fully support the General Counsel's
case . The Employer's initial layoff of unionized
employees-which . was accompanied by an in-
creased use of casual and temporary employees-
occurred on August 25, before the union member-
ship 's first refusal to ratify the July concessions.9
Thus, the Employer 's initial action occurred
before, and prior to its knowledge of, the union
membership 's protected conduct.
Ultimately , the element most critical to our find-
ing is that of animus . The judge found "no absence
of animus" in regard to the Employer 's actions. We
cannot agree.10
We find no direct evidence of animus by the
Employer toward the union membership's failure
to ratify the July concessions . In her decision, the
judge referred to certain testimony by William
Clark , president of the Union 's Oklahoma City
local, regarding statements by Don Bunch, the
Union 's president and chief negotiator, setting forth
Bunch 's "think[ing]" about the Employer's in-
creased use of casual and temporary employees.
However, as the Employer correctly notes, Clark's
testimony in this regard was stricken from the
record . Thus, this testimony is not before us, and
we cannot rely on it. I'
Charging Party Michael Reynolds testified that
in regard to the layoffs , Clark stated to him: 1 2
Well, you guys should have ratified the first
contract because Mr . Upshur [the Employer's
president] was so pissed that he did away with
all the Dock Workers. That cost us 125 Union
members . I'm sorry , but you should have rati-
fied.
Reynolds' testimony, at most , was hearsay. As
with Clark's stricken testimony , Reynolds' testimo-
ny did not purport to quote any official of the Em-
ployer. Clark's and Washburn 's statements-which
appear to reflect only their opinions-certainly are
° The judge found that the union membership 's first refusal to ratify
the July memorandum of understanding took place about August 27.
Though the date of the membership 's vote was not precisely established,
it is clear that the General Counsel did not prove that it occurred prior
to the Employer's initial layoff
10 The General Counsel did not contend , the judge did not find, nor
would the record support that the Employer 's actions were motivated by
a general animus towards the Union . That is , there is no basis for finding
that the Employer acted with the intent to eliminate or undermine the
Union as the employees ' bargaining representative . Indeed , after the
membership 's refusal to ratify in August , the parties promptly reopened
negotiations and ultimately agreed on a memorandum of understanding
that was acceptable to unit employees.
. 11 In any event , Clark quoted Bunch , another union official . Clark did
not quote any official of the Employer . Certainly , Bunch's opinion was
not probative of the Employer 's motive.
12 Reynolds also testified that Eldon Washburn , the Union's vice presi-
dent, made statements similar to those of Clark.
275
not probative of, and cannot establish , the Employ-
er's motive.
Nevertheless, even without direct evidence of
animus, the Board , in proper circumstances, will
infer animus . 13 Here, however, the circumstances
do not warrant an inference of animus . As noted,
the Employer's initial layoff predated the union
membership 's protected conduct. Further, it is sig-
nificant that the -July memorandum of understand-
ing permitted the Employer to put into effect im-
mediately its terms and conditions . Thus, although
the union membership 's refusal to ratify forced the
Employer to reopen negotiations, it did not pre-
clude implementation of the concessions. Thus,
there was no apparent reason for the Respondent
to retaliate against employees for their failure to
ratify those concessions . Under these circum-
stances, we cannot infer that the Employer acted
with a specific animus towards the employees' pro-
tected conduct . Thus, we find that the General
Counsel failed to establish a prima facie case of a
violation.14
However , assuming arguendo that a prima facie
case was established by the General Counsel, we
would nonetheless find that the Employer met its
rebuttal burden under Wright Line of establishing
that it would have taken the same action even
without the employees ' protected conduct. It is un-
disputed that, at times material , the Employer was
in dire economic straits . It was suffering revenue
losses averaging about $40,000 per day. As noted,
on the employees ' initial rejection of the July
memorandum of understanding , the Employer
promptly resumed negotiations with the Union. Ul-
timately , the parties reached an accord that was
ratified by the Union' s membership . The Employ-
er's actions bespeak that it was acting for legitimate
economic reasons-it was being forced to cut
costs. 15
13 See, e.g., White-Evans Service Co., 285 NLRB 81 (1987).
14 Our conclusion that the General Counsel did not establish animus on
the part of the Employer renders this case significantly different from
cases like Reliable Electric Co., 286 NLRB 834 (1987 ); Blue Cab Co., 156
NLRB 489 ( 1965), enfd sub nom. Teamsters Local 782 v. NLRB, 373
F.2d 661 (D.C. Cir. 1967); Lifetime Shingle Co., 203 NLRB 688 (1973);
and Ra-Rich Mfg. Corp., 120 NLRB 503 (1958), enfd . 276 F.2d 451 (2d
Cir. 1960), relied on by the judge . In the varying contexts of those cases,
the Board found that employers violated Sec . 8(a)(3) of the Act by forc-
ing employees to choose between continued work without union repre-
sentation or ending their employment However , in forcing employees to
make such a "Hobson 's choice," the employers in those cases were acting
for antiunion reasons . Here, as no finding of animus can be made, we
cannot find , contrary to the judge, that the Employer unlawfully forced
its employees to choose between continued employment as nonunion cas-
uals or quitting. See also fn 16, infra. _
15 At times material , it is undisputed that the Employer informed the
unit employees that those who worked as casuals would receive $6 per
hour,'whereas union scale was $8 or $8.50 per hour.
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Further, as urged by the Employer, it is signifi-
cant that the contract modification reinstituting the
policy that, inter alia, precluded unit employees
who worked less than 30 hours a week from re-
ceiving union scale or retaining their union mem-
bership was a result of a union proposal. The
Union, based on the wishes of the membership,
sought and received a reinstitution of the policy
under which employees could either be laid off
(and receive unemployment) or work reduced
hours as nonunion employees and below union
scale . Consequently, when the Employer laid off
unit employees and increased its use of casual em-
ployees to cut costs, it was acting in a manner dic-
tated by its dire economic straits and in conform-
ance with its negotiated agreement with the
Union.16 Thus, the Respondent Employer estab-
lished that it would have taken the same action
even absent the employees ' initial rejection of the
July 21 memorandum of understanding . According-
ly, we shall dismiss the complaint's allegation that
the Employer violated Section 8(a)(3) and (1) of
the Act.
ORDER
The National Labor Relations Board orders that
A. Respondent Mistletoe Express Service, Okla-
homa City , Oklahoma, its officers , agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Agreeing to any contractual provision with
Motor Expressmen 's Union providing for the un-
lawful rendering of financial assistance by the Re-
spondent to Motor Expressmen 's Union.
(b) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Inform all employees that the Respondent
will not include in any future collective -bargaining
agreement , and has never implemented , any provi-
sions that provide for the Respondent to pay
Motor Expressmen 's Union 50 cents per hour for
each hour worked by a casual employee or other
remuneration that unlawfully assists Motor Ex-
pressmen 's Union.
is This bargaining factor also serves to distinguish this case from Reli-
able Electric , supra; Blue Cab Co., supra; Lifetime Shingle Co., supra; and
Ra-Rich Mfg., supra, relied on by the judge . We cannot find, in these cir-
cumstances , that the Employer unlawfully forced on the unit employees a
choice between working as nonunion casuals or quitting But for the
Union's contractual proposal that the Employer accepted , unit employees
would have been permitted to work reduced hours at union scale with
union representation The Union 's proposal-agreed on by the parties-
restricted the Employer's options in its efforts to cut costs.
(b) Post at all its facilities and places of business
copies of the attached notice marked "Appendix
A."17 Copies of the notice, on forms provided by
the Regional Director for Region 16, after being
signed by Mistletoe Express Service 's authorized
representative , shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered , defaced , or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
B. Respondent Motor Expressmen 's Union, Okla-
homa City, Oklahoma, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Agreeing to any contractual provision with
Mistletoe Express Service providing for the unlaw-
ful rendering of financial assistance by Mistletoe
Express Service to the Respondent.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Inform all members that the Respondent will
not include in any future collective-bargaining
agreement, and has never implemented , any provi-
sions that provide for Mistletoe Express Service to
pay the Respondent 50 cents per hour for each
hour worked by a casual employee or other remu-
neration that unlawfully assists the Respondent.
(b) Post at all its business offices copies of the at-
tached notice marked "Appendix B."18 Copies of
the notice, on forms provided by the Regional Di-
rector for Region 16, after being signed by the Re-
spondent's authorized representative , shall be
posted by Motor Expressmen's Union's immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
17 If this Order is enforced by a judgment of a United States court of
appeals, the words iii the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
Is See fn. 17, above.
MISTLETOE EXPRESS SERVICE
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations of the Act
not specifically found.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT unlawfully assist or support
Motor Expressmen's Union by entering into a con-
tract with the Union whereby we agree to pay the
Union 50 cents for each hour worked by a casual
employee or otherwise provide the Union with un-
lawful financial support or assistance.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL notify all Mistletoe Express employees
that we have not and never will implement the
provision (which we have deleted from the con-
tract) that promised to give the Union unlawful fi-
nancial assistance or any similar provision.
MISTLETOE EXPRESS SERVICE
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT enter into a contract that requires
Mistletoe Express Service, or any other employer,
to pay us 50 cents for each hour worked by casual
employees or otherwise accept unlawful financial
assistance or support from any employer.
277
WE WILL NOT in any like or related manner re-
strain or, coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL notify all members that we have not
and never will implement the provision (which has
been deleted from the contract) that promised us
unlawful financial assistance or any similar provi-
sion.
MOTOR EXPRESSMEN 'S UNION
J. O. Dodson, Esq., for the General Counsel.
John B. Nelson, Esq. and Bryan C. Collins, Esq., of
Dallas, Texas, for the Respondent Employer.
Jerry Sokolosky, Esq. and Larry D. Bishop, Esq. (Abel,
Musser, Sokolosky & Clark), Oklahoma City, Oklaho-
ma, for the Respondent Union.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. This case
was tried in Oklahoma City, Oklahoma, on. July 20
through July 25, 1987. The charge in Case 16-CB-2799
was filed by Michael D. Reynolds, an individual, against
Motor Expressmen's Union (the Union), on September
23, 1986.1 The charge in Case 16-CA-12860 was filed by
Reynolds against Mistletoe Express Service (the Compa-
ny or the Employer) on October 21. The charges were
both amended on December 8 and March 19, 1987. The
cases were heard pursuant to a consolidated complaint
which issued on March 20, 1987.
In substance, the complaint, as amended at hearing, al-
leges that the Employer violated Section 8(a)(1), (2), and
(3) and the Union violated Section 8(b)(1)(A) and (2) of
the National Labor Relations Act. The alleged violation
of Section 8(a)(3) and (1) of the Act is claimed to be the
result of the institution of a practice by the Employer of
laying off full-time dock workers and the subsequent re-
placement of these workers with casual workers (casu-
als), including Charging Party Reynolds. Reynolds filed
a grievance protesting his layoff and the increased use of
casuals. The asserted violation of Section 8(a)(2) and
Section 8(b)(1)(A) is said to result from the Respondents'
execution of a revised section 24 of their collective-bar-
gaining agreement which provides for the payment of 50
cents an hour for all hours worked by nonunion casuals.
The Union allegedly violated Section 8(b)(1)(A) and (2)
by failing to enforce a contractual provision which re-
stricts the use of casual employees to peak workloads
and submitted to the layoff of full-time employees and
their replacement by casual workers; and, by the Union's
failure to properly process Reynolds' grievances protest-
ing his and other full-time employees layoffs and the in-
creased use of casual workers.
The Respondents filed timely answers to the com-
plaint. The answers admitted some of the allegations, but
denied the Employer and Union committed any of the
' All dates herein are in 1986 unless otherwise indicated.
278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
alleged unfair labor practices . Both Respondents moved
for dismissal of the complaint; ruling on these motions
was deferred to consideration in this decision.
All parties were provided opportunity to present oral
and documentary evidence, cross-examine witnesses, and
to present oral argument . Posthearing briefs have been
received from all parties.
On the entire record, including my observation of the
demeanor of the witnesses , who were not sequestered,
and after due consideration of all pleadings and briefs, I
make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent Employer is an Oklahoma corporation en-
gaged in the transportation of freight and commodities in
interstate commerce by truck. The complaint alleges
facts sufficient to establish jurisdiction and Respondent
Employer admits the . correctness of these allegations.
Accordingly, I find that the Employer is and has been at
all times material herein an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
Respondent Union represents the Company's employ-
ees for the purposes of collective bargaining . The com-
plaint alleges , Respondent Union admits, and I find that
the Union is now , and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Matters
Copious documents were subpoenaed by the General
Counsel during the course of this proceeding . Respond-
ents attempted to comply with the subpoena and provid-
ed most of the documents subpoenaed . The Employer of-
fered to let the General Counsel have access to all of its
personnel files which Respondent Employer represented
contained much of the requested information , an offer
which was not accepted. I therefore found that there had
been substantial compliance with the General Counsel's
subpoena.2
Much of the material supplied by the Respondents
were removed from the hearing site to the Board's Re-
gional Office in Fort Worth, Texas, for duplication. The
documents were not returned until near the end of the
proceeding . At the conclusion of trial, I asked the parties
to check that the reporter had two copies of all exhibits.
After a cursory examination, it was determined that the
reporter failed to keep the exhibits in order . 3 In particu-
lar, I noted that the Union's exhibits were all submitted
in duplicate at the time they were received in evidence
or shortly thereafter; yet, the reporter failed to keep
them in order and/or arranged in a rational manner. I
observed that he apparently scooped them up at the end
2 See Tr 1053-1056.
0 The Union's exhibits were so disheveled, contrary to the way they
were introduced , that the Union moved for a mistrial . The motion was
denied.
of each day without any attempt to keep them in order.
Accordingly , I requested , and the parties agreed to con-
form all exhibits to the record and to supply those. that
were missing.
In further recognition of the number of exhibits attrib-
utable in part, to an exhibit denominated weekly bargain-
ing unit employee reports (weekly reports), I informed
the parties that I would consider only references to those
reports that are explicit and analytical . In recognition of
the plethora of information that needed to be analyzed, I
permitted reply briefs for the limited purpose of rebut-
ting any analysis of the exhibits , particularly the weekly
reports and the remedy sought by the General Counsel,
which counsel for the General Counsel represented
would be unique but did not explicate before the close of
record.
Counsel for the General Counsel appended to his brief
a limited analysis of the weekly reports. The Respond-
ents did not present any analysis of this exhibit . All par-
ties filed reply briefs. On November 30, counsel for the
General Counsel filed a motion to strike both the Em-
ployer's and Union's reply briefs asserting that these
briefs were not limited to arguments concerning analysis
of exhibits, particularly the weekly reports and the
remedy, rather , they addressed all issues raised in the
General Counsel 's brief, "including analyses of witness
testimony and case citations." In the alternative, the
General Counsel requests, in the event the motion is
denied in its entirety, that any portion of the briefs that
do not directly address the remedy or analysis of exhibits
be stricken.
The Union, by letter filed December 11, 1987, stated it
did not wish to respond to the motion to strike but re-
quested that the information contained in its reply brief
be considered as an amendment to its brief in chief to
assist me in making my decision.
Respondent Employer filed, on November 11, 1987, a
response to the motion and, on November 12, 1987, sub-
mitted a motion to file a supplemental reply brief. Also
on November 12, the Employer filed a supplemental
reply brief. General Counsel moved to strike the supple-
mental reply brief of the Employer. The Employer re-
sponded to the motion on December 11, 1987, asserting
that the exhibits in the General Counsel's brief and reply
briefs contained substantial and significant deficiencies.
The General Counsel 's motions are granted . In none of
the Respondents ' briefs were there analysis of the weekly
reports, nor a statistical disputing of the General Coun-
sel's presentation . Respondent Employer argues that the
weekly reports are being utilized for a purpose entirely
unintended when they were prepared . Respondent Em-
ployer admits the reports were prepared by the Compa-
ny to permit the Union to monitor the collective-bargain-
ing agreement , particularly the Company's use of casual
employees, which is the purpose for their introduction
into evidence. The exhibit was moved and received 'with-
out objection .4 Inasmuch as the Employer had the op-
4 There were some gaps in the material provided by the Respondents
which all parties agreed would be filled if they are in either of the Re-
spondents ' possession . There was no claim by the General Counsel that
this agreement has been breached . (Cf. Tr. 1056-1058.)
MISTLETOE EXPRESS SERVICE
portunity to raise any question on the record regarding
the applicability or reliability of this exhibit, and failed to
do so; I find this argument in its reply to the motion to
strike to be without merit. I also note the lack of speci-
ficity respecting its claim the material is deficient . Similar
to the Union, the Employer also requests that the infor-
mation contained in their reply brief be considered as an
amendment to their brief in chief as an aid to reaching•a
proper determination in this case.
In its November 12, 1987 reply, the Employer argues
that its argument "addresses and rebuts the inferences
raised by" analysis of the exhibit appended to the Gener-
al Counsel's brief. I find that there is one paragraph on
page 3 of its reply brief that alleges deficiencies in the
Appendix to the General Counsel's brief, and this para-
graph will be considered. The Employer also claims that
it only recently became aware of deficiencies in the
weekly reports which should permit it to file a supple-
mental reply brief. There was no explanation of why this
information was not available earlier. This lack of speci-
ficity in its pleading requires that I deny its request to
file a supplemental brief.
In reaching this decision, I have considered that the
records were generated by Respondent Employer who
had sole access to the methodology used to prepare the
exhibits and should have known of any asserted deficien-
cies at the time the exhibits were received in evidence.
There was no indication that the exhibit was used in an
improper manner when it was introduced without objec-
tion similar to that now raised by the Company. The
Employer had access to the preparers of the weekly re-
ports who could have testified about any asserted defi-
ciencies but failed to call such witnesses . To attempt to
supplement the record now, without the other parties
being afforded the opportunity to address its claims, is
improper and unwarranted in these circumstances.
The Employer also argues that the General Counsel,
in her reply brief, submitted new material as an analysis
of the exhibit and it should be permitted to address the
new material . In examining the supplemental reply brief,
I note that the statistics submitted for named individuals,
although claimed to be misleading and inaccurate, were
not shown to be specifically incorrect. Respondent Em-
ployer only addresses perceived general inadequacies in
the methods used to prepare the documents without any
citations to transcript page or other verifiable evidence
of record. Under the circumstances here present, there is
no justification for permitting the filing by Respondents
of reply or supplemental briefs which have not met the
parameters originally set in this proceeding. In sum, only
that small portion of the Employer's reply brief on page
3 which addresses the limited issue of the weekly re-
ports, as extrapolated by the General Counsel, will be
considered herein.
I reach the same conclusion regarding the reply brief
filed by the Union. The Union's reply brief did not ad-
dress the limited matters detailed at the close of the
record ; instead , it was an attempt to supplement the legal
arguments made in its brief in chief . There was no men-
tion of the weekly reports or the remedy. Also noted is
the failure of the Respondents to detail why the matters
raised in their reply briefs and/or supplemental briefs
279
were not raised in their briefs in chief. At best, there are
only generalized allegations of need to supplement the
Respondents' briefs without any specific meritorious
basis to grant these requests. Accordingly, I grant the
General Counsel's motion to strike the Union's reply
brief, and her motion to strike those portions of the Em-
ployer's reply brief that do address the weekly reports.
To conclude otherwise would only lead to undue and
unwarranted delay.
B. Statement of Facts
1. Bargaining history
The Employer is a Regional common carrier head-
quartered in Oklahoma City, Oklahoma.5 'The Compa-
ny's business is closely related to and dependent upon
the oil industry . The Company was founded in 1931 and
has had a collective-bargaining relationship with the
Union since 1940. All the union officers were employees
of the Company on a leave of absence during their
tenure as union officers with retention of seniority. The
Union represents only employees of Mistletoe Express.
The current collective -bargaining agreement was in
effect from March 1, 1985, to March 1, 1987. It had a
provision permitting reopening for further negotiations.
The collective-bargaining agreement also had a section
which dealt with the Company's employment of casuals.
According to Michael Wornum , the Oklahoma City ter-
minal manager and head of the Company's negotiating
team , casuals were used by the Employer for at least the
past 10 years.6 In January , the Employer, claiming it had
developed dire financial difficulties due principally to the
collapse of the oil industry and expected further operat-
ing losses due to anticipated increased competition from
United Parcel Service in Texas, requested negotiations
with the Union for midterm concessions . Initially, the
Union refused to consider reopening the contract, but
subsequently agreed . At the outset , the Employer sought
a 17-percent reduction in wages, among other conces-
sions . The Union originally proposed a 7-percent roll-
back.
On or about March 8 , the parties agreed to a 15-per-
cent reduction in wages. Initially, the union membership
5 The Employer handles general commodities , principally in less than
truckload lots, in Oklahoma , Texas, Arkansas , Kansas, Missouri , Tennes-
see, and Mississippi . It has about 19 terminals.
° Sec. 24 of the contract provided.
The company may utilize casual employees to work in all classifica-
tions (except LINE HAUL DRIVERS) provided by this agreement.
However, no such employee may be utilized for more than thirty
(30) hours per week for two consecutive weeks For each casual
who works an average of thirty (30) hours a week for two consecu-
tive weeks, then and in that event, the company will offer regular
full time employment to the casual or casuals who have the earliest
original date of hire.
In addition , casuals may not be used unless there is a four (4) hour
interval between the work schedules of casuals . Casuals may not
drive except in the case of emergency when there are no regular full
time qualified employees working and available at the time of the
emergence driving work is required.
The use of casuals as provided in this section is to relieve the peak
work loads of the company. The use of casuals that defeat the other
sections of this agreement shall be subject to the grievance proce-
dures as provided for in Section 13.
280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
failed to ratify the proposal , wanting management to be
subject to the same reductions . The Company agreed
that salaried terminal management would be reduced 15
percent either by pay cuts or reduction in staffing and
the midterm contract modifications were ratified. An-
other modification to the contract in March provided
that full-time employees who worked less than 40 hours
per week would earn union scale for all hours worked.
Thus, employees who worked less than 30 hours a week
would not lose their union membership and become cas-
uals, as was the case in the past . This change also meant
that the employees could not opt to take a layoff and re-
ceive unemployment benefits ; they had to work less than
40 hours per week at union scale or be terminated. This
modification was the result of a union proposal.
The Union wanted its members to retain union pay
scales regardless of the number of hours they worked be-
cause if a member worked less than 30 hours a week
under the original agreement they would not only lose
their pay scale but would become casuals, no longer eli-
gible for union membership or company benefits. Ac-
cording to Wornum 's unrefuted testimony, the Compa-
ny's use of casual employees was a constant source of
disagreement between Mistletoe and the Union at every
negotiating session . The limit on the use of casuals to
peak periods was also the subject of dispute for the con-
tract fails to define the term peak periods.
Casuals were primarily used on the dock to load and
unload freight . Many of their full -time employees started
working for the Company as casuals . Casuals were rarely
used in the shop, only on special projects. Also, they
were used in driver/sales positions only in emergency
situations . Initially, Wornum claimed that casuals were
not scheduled to report to work at a set time daily, but
he did not specifically refute the testimony of Clarence
Suggs, Jr., a former dock worker,' that after he was laid
off in September, he reported for work in accordance
with a regular schedule. It is undisputed that regular full-
time dock workers were replaced by casuals.
The Company's use of casuals was the source of griev-
ances in addition to being a subject the parties frequently
heatedly discussed during bargaining . There were a
number of grievances filed by the Union in 1985 and
1986 claiming the Company was violating the collective-
bargaining agreement in their use of casuals while laying
off full-time employees. Wornum admitted that the Com-
7 Suggs was discharged for fighting on or about April 20, 1987. Bunch,
the former union president , who had returned to work at the Company
after a new union executive board was elected by the unit employees at
the end of 1986, was the dock supervisor who broke up the fight and
later informed Suggs that he was fired for fighting. When Bunch exer-
cised his reinstatement rights he was rehired by Mistletoe as a supervisor.
He has never previously worked for the Company as a supervisor. Bunch
testified against Suggs at a hearing before the Oklahoma Employment Se-
curity Commission Suggs prevailed at the state proceeding and received
unemployment benefits . He also filed an unfair labor practice charge with
the Board which he admitted was "thrown out" after investigation
Suggs' testimony is consistent with his affidavit which was given prior to
his discharge . Accordingly, his discharge and other subsequent events
have not been shown to have colored his testimony or otherwise ren-
dered it not credible. He candidly admitted he felt hostility towards
Bunch . Suggs appeared to be candid and attempted to relate the facts in
an open and honest manner without regard to the effect on his interests. I
find him a credible witness.
pany was guilty of abuses in its use of casuals throughout
its system . He admitted to not adhering to the terms of
the agreement at times when he was terminal manager
and most of these times he claimed , without contradic-
tion or question, the Union was "fairly quick to call your
hand, if Mistletoe did not adhere to the terms of the col-
lective bargaining agreement and there was a lot of
grievances filed throughout my tenure " as terminal man-
ager in Oklahoma City from 1981 or 1982 to 1985 or
1986. He also claimed , without refutation , that there
were many grievances relating to the use of casuals filed
against him while he was terminal manager.
It was company practice , Wornum admitted , to grant
the several hundred grievances8 filed about violations of
section 24 of the contract, in the first step. For example,
if the grievance was that casuals worked more than 30
hours per for week for 2 consecutive weeks, they would
give the grievants full-time positions and then lay them
off and return them to casual status a few days later.
Then, a week or two later, the Company admittedly
would be guilty of the same abuse.
According to Wornum, at Oklahoma City there were
two standard peak periods : from around 4 to 10 a.m. and
from about 5 to 9 or 10 p.m. However, he also stated
that management considered any abnormal or unexpect-
ed work peak loads, such as midday arrivals that were
not expected . Mistletoe also claims it has more peak peri-
ods the first part of each week and there was some sea-
sonality to the business.
Clarence Suggs, who started working for the Compa-
ny around July 1981 as a casual before becoming a full-
time employee, testified that there were two peak peri-
ods daily . The first and only true peak period, he claims,
is from 6 to 10 p .m. when the driver salesmen return to
the terminal and the freight had to be unloaded and re-
loaded on outbound trailers to meet the schedule. He ob-
served casuals working during this peak period. The
second peak period was from 4 to 8 a . m., and he never
observed casuals working during these hours.
The Company does not have computerized scheduling
which created management difficulties, particularly since
they tried to make overnight deliveries, and the time
limits on their shipments created demands outside the
usual peak periods. Additionally, the Company created
an affiliated trucking company, Sooner, which is a sepa-
rate division of Mistletoe , having nationwide authority; it
hauls truckloads , in contrast to Mistletoe's less-than
truckload operation . Sooner was created to feed freight
into the Mistletoe system. It is not claimed that Sooner
has adversely affected Mistletoe 's operations in any
manner.
After the March contract modifications United Parcel
Service commenced intrastate operations in Texas with
great success, to the detriment of Mistletoe and resulting
in the Employer again requesting the Union to reopen
negotiations for further concessions in June. Again
Bunch , then union president , was the chief negotiator for
the Union and Wornum the chief negotiator for the
8 In contrast, Bunch testified that prior to July 21, there were probably
15 grievances involving the Company 's use of casuals and 8 or 9 after
July 21.
MISTLETOE EXPRESS SERVICE
Company. They negotiated a memorandum of under-
standing which became effective July 21, even though
the union membership had not participated in a ratifica-
tion vote.9
It is not alleged that this action, standing alone, was
violative of the Act. Rather, General Counsel avers it is
part of a pattern that demonstrates the Union was not
fairly representing employees and was dominated by the
Company.
In preparation for the negotiations, Bunch went to the
State Corporation Commission and got copies of the
Company's tax reports. He also subscribed to a service
which reports all trucking companies' operating ratios.
After analyzing these documents, he tried to verify the
Company's claim of dire financial straits by reviewing
their books with the Company's accountant. The Union
did not retain their own accountant but, based on the
representations of the Company's accountant, their own
review of the books and the documents obtained from
the reporting service and Oklahoma Corporation Com-
mission , determined that Mistletoe had a decrease in
gross operating revenues and paid less taxes . Bunch con-
cluded that the Company's representations were correct.
The first ratification vote on the July memorandum of
understanding was held around August 27; the members
voted to reject the modifications. Portions of the memo-
randum of understanding remained in effect. It is undis-
puted that the Company was in dire financial straits,
which is the asserted basis for implementing the memo-
randum of understanding prior to the ratification vote
and continuing their efficacy while subsequent negotia-
tions followed their rejection.
The parties agreed to modifications in the memoran-
dum of understanding and again submitted the agreement
of the membership for ratification on September 18; it
was rejected. As a result of the unit's rejections of the
various agreements , the parties implemented several con-
cessions in July through September as part of their
agreement to permit implementation of the terms of the
memorandum of understanding prior to ratification and
in the event of rejection by the members to renegotiate.
For example, the parties agreed to grant the members'
wish to choose layoff rather than casual status, agreeing
to the modification on August 23 and implementing it on
or about September 29.10
At a union meeting held on August 23 in Oklahoma
City, Oklahoma, Bunch informed the attending union
members of the proposed changes to section 24 of the
contract. According to Suggs' undisputed testimony,
Bunch detailed the proposed modifications to the con-
tract and said the Company was operating at a loss and a
9 The memorandum of understanding included modifying the method
of paying employees occupying driver/sales positions from hourly wages
to a weekly salary plus commissions. Employees in this classification
would also work 10-hour days , with the possibility of being assigned
other duties including dock work when they are available The Company
was granted some flexibility in operating its Texas terminals . Departmen-
tal and terminal seniority were eliminated and all seniority was based on
company seniority.
1O This modification , as previously described , altered the March agree-
ment by eliminating union wages for dock workers working less than 6
hours a day. Bunch testified, without contradiction , that this change was
made pursuant to requests from union membership.
281
series of bank loans were subject to recall of the FDIC
due to a bank failure. Bunch also said he considered it
the Union's duty to help save the Company and his pri-
mary concern was the members with "high seniority."
The Union, as part of its continuing effort to resolve
the casual problem, proposed having hiring halls in all
the towns Mistletoe had terminals and making casuals
union members . The Company rejected this proposal.
Since the Company refused to consider casuals members
of the bargaining unit, the Union insisted that the Com-
pany be subject to a penalty for using casuals . The par-
ties then agreed that the Company be penalized by
amending section 24 of the contract to require the Com-
pany to pay the Union 50 cents for each hour worked by
casual employees." It is this provision that the General
Counsel asserts is violative of Sections 8(a)(2) and 8(b)(1)
of the Act.
Another penalty, for the use of casuals was added to
the agreement; if a casual worked more than 6 hours in a
day, he would receive union scale for all hours worked
that day. Initially the Company rejected this union pro-
posal but later agreed to its inclusion in the modified
agreement .12 Another modification to section 24 of the
contract was that the Company was authorized to use
casuals in all classifications rather than limiting their use
to emergencies . This change was proposed by the Com-
pany. This provision was in lieu of a prior practice of
letting managers do bargaining unit work in emergencies.
After the two agreements were rejected by the mem-
bers, the Union insisted on more concessions, including
reinstatement of the provision that employees could opt
to take layoffs rather than work for the Company less
than 30 hours a week. As a concomitant to this proposal,
the parties returned to their pre-March agreement, in-
cluding the provision that any employee working less
than 30 hours a week suffered a change in status to
casual ; and, as casuals , they were no longer entitled to
company benefits or eligible for membership in the
Union.
The September 8 agreement was ratified on October 6.
The union membership was substantially smaller in Octo-
ber than July due to layoffs on August 25 and September
10 and 15. These layoffs were indisputably substantial. l a
As noted above, on this date casual employees were not
eligible for union membership and they could not vote.
After ratification, the Company was informed by its at-
torney that the 50-cent provision was illegal . The Union
was similarly informed. The provision was never rescind-
ed, but it is undisputed that it was never implemented.
11 Specifically , the agreement provided : "The company will pay the
union fifty (50) cents per hour for total hours worked by casual employ-
ees."
18 There were a number of other modifications to the agreement
where the Company conceded to demands of the Union. I find it is not
necessary to detail those other modifications, only to note that conces-
sions were made by the Company based on union demand and have been
considered in reaching my decision in this case
is Wornum estimated that poor to these layoffs there were 40 to 50
full-time dock workers ; on September 10, 10 to 15 were laid off, and on
September 15, 10 to 15 more were laid off His affidavit contained the
following statement: "The September 15 layoff of dock workers was sub-
stantial with perhaps half of the dock workers laid off, and casuals used
instead "
282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The discernment of the illegality of this provision post-
dated the filing of the unfair labor practice charges by
Reynolds in this proceeding. By letter dated November
11, the company president, Sidney Upshur, informed the
Union that he was told the provision was illegal and also
wrote:
Section 26 of the current Collective Bargaining
Agreement provides that in such an instance this
provision:
... be revised or modified by mutual agreement
between the company and the union , to conform
to such laws and regulations ... .
The purpose of this communication is to inform you
of the above facts and to state our willingness to
meet with you at a mutually agreed to time and
place to determine how such an unlawful provision
shall be modified or revised.
There is no claim that further meetings or negotiations
were conducted over this provision or that it was revised
or modified . Respondents agreed it would not be imple-
mented and it was deleted from the printed copy of the
contract. The contract was printed in January 1987.
There is no indication that the bargaining unit members
or any other employees were informed this provision
was not implemented.
Wornum testified, without contradiction, that the ne-
gotiations for the midterm modifications to the collec-
tive-bargaining agreement were spread over a 6- to 8-
month period and took over 30 days of his time. He
characterized the union negotiators as very difficult to
get along with, very hard negotiators, "there was a lot of
nit picking."
2. Layoffs and Reynolds' grievances
During the July to September negotiations for modifi-
cations of the collective-bargaining agreement , Respond-
ent had three layoffs at their Oklahoma City facility.
They occurred on August 25 and September 10 and
15.14 Wornum could not recall exactly how many em-
ployees were laid off but estimated that about 10 out of
40 or 50 were laid off on September 10.
Reynolds was in the driver/sales classification in
August . As a result of implementing the contract modifi-
cation which increased the hours individuals in that clas-
sification worked, and their facility to do 2 hours of
dock work daily, the Company eliminated 12
driver/sales routes and he was bumped to night dock,
which reduced his pay. He filed a grievance to bump
into another job. Reynolds was told he could bump into
the position if he trained for the job on his own time, as
provided in the collective -bargaining agreement. Reyn-
olds failed to take the training , claiming he was told that
the position was to be eliminated. There is still one em-
ployee in that position , and there is no evidence Reyn-
14 There is also evidence that these were not the first layoffs in the
summer of 1986. Suggs testified he was laid off for about 7 days starting
on July 28 . There is no indication whether any other employees were
laid off on this date
olds would not have retained it if he had availed himself
of the opportunity to qualify for the position.
Reynolds was laid off on September 10. He asked for
union representation , which he was told was not avail-
able at the time; he also requested the right to bump into
the position of shop utility. He was offered the choice, at
the time of his layoff, of accepting casual employment at
$6 per hour or taking a layoff. William Clark, who was
then president of the Oklahoma City local, advised
Reynolds to take a layoff. According to Reynolds, Clark
represented the Company may lower casuals ' rate of pay
to minimum wages . When Reynolds asked Clark what
was happening , Clark, according to Reynolds, respond-
ed: "Well, you guys should have ratified the first con-
tract because Mr. Upshur was so pissed that he did away
with all the Dock Workers. That cost us 125 Union
members . I'm sorry, but you should have ratified." 15
Clark, who is currently working for Mistletoe as a
line-haul driver, testified, without refutation , that in re-
sponse to inquiries from members about why they were
being laid off after the first ratification vote in the
summer of 1986 he telephoned Bunch at the union hall
to determine what was happening . "[Bunch] made men-
tion to me that he thought that the company was laying
them off because they were of - the no votes [sic]."1 a
Bunch, who testified, did not address this conversation;
he did not deny making the statement . There is no evi-
dence that he derived this opinion from any information
or statements from representatives of Mistletoe.
On September 18, Reynolds filed two grievances. One
grievance claimed that he was improperly laid off; that
the Company was in violation of section 24 of the collec-
tive-bargaining agreement for it used casuals to replace
full-time employees . Reynolds claimed he was laid off to
disqualify him from voting on the midterm modifications
to the contract. The second grievance claimed Reynolds
was denied bumping rights and should have retained his
full-time employment . A few days later, on September
23, Reynolds filed his unfair labor practice charge
against the Union.
The third step of the grievance procedure was held
concurrently on both these grievances in October. It is
undisputed that the bumping rights grievance was re-
solved at the third step when the Company offered
Reynolds the opportunity to train for the shop utility
job. At the end of the third-step meeting, Reynolds
agreed to report to the shop supervisor the following
Monday to commence his training . Reynolds signed the
settlement agreement stating he would bump into the
shop . He failed to report as promised and never tele-
15 Upshur, like Wornum, had retired from the Company prior to the
instant trial , but they were both acting as paid consultants to Mistletoe.
Upshur did not appear and testify . His absence was unexplained.
16 Reynolds also testified that he had a conversation with Washburn,
then vice president of the Union and a member of its executive board,
which included the following statements-
I asked him , I said , "You mean to tell me that, because we didn't
vote to agree upon this that he's taking more from us?" And he
Washburn said, "Yes, and there's nothing we can do about it . the
Company 's in so . so bad a financial condition that we can't do
nothing . We're . we're at their mercy "
Washburn did not appear and testify . At the time of trial he was em-
ployed by Respondent.
MISTLETOE EXPRESS SERVICE 283
phoned the supervisor or any other company representa-
tive to inform them he was not going to report and why.
Reynolds claimed that the job he was to bump into en-
tailed changing truck tires and , after asking at a tire
store, learned that it could be dangerous and decided not
to train on the tires the Company would make available
to him ; tires which were ready for recapping , not new
tires . The Company explained they could not afford to
let an employee learn on expensive new tires nor could
they permit the tires trainees mount to be used on their
trucks, since this could result in dangerous operating
conditions . There is no claim or showing that the Com-
pany treated Reynolds differently from any other em-
ployee who sought to qualify for the position of shop
utility.
Reynolds also claimed : "the bottom line that is that, if
they don't want you in the garage , you're not going to
get in ." There was no factual basis advanced for this
statement and it is indicative of the witness' tendency to
engage in hyperbole.
The portion of the meeting relating to the use of casu-
als followed the resolution of the bumping rights griev-
ance; the parties were awaiting the collection of informa-
tion and provision of witnesses . Prior to the meeting,
Reynolds consulted with Bunch to determine what assist-
ance he would render . Bunch informed him, according
to Reynolds , there was nothing he could do for they
would have to prove the Company violated the contract
and there was no evidence . Bunch then said that he did
not think that Reynolds could prove the hiring of casuals
to replace him was a violation of the contract and of-
fered Reynolds his support in trying to meet this burden
and asked what he needed . Reynolds asked to have three
named employees who had been laid off and were work-
ing as casuals present and also wanted copies of time-
cards explaining that the Company was using temporary
service employees , "like subcontracting labor ." Bunch
indicated he had documentation of the Company's ac-
tions and showed Reynolds a weekly report . Bunch also
said he would check into the Company's use of tempo-
rary service employees . 17 Bunch told him if there was a
chance he could win the grievance he would be glad to
help him . Reynolds told Bunch the documentation fur-
nished the Union by the Company was inaccurate by un-
derstating the number of casuals the Company was using
in lieu of regular employees . For example , Suggs was not
shown asp casual , although he unquestionably was there
working in that Company . Bunch did not refute Reyn-
olds' version of their conversation.
At the commencement of the third -step grievance
meeting about the use of casuals, Bunch gave Reynolds
only a portion of the materials he previously requested
17 The record fails to establish the date when the Company com-
menced using temporary service employees . Their use is not reflected on
the weekly reports . These employees were paid by independent contrac-
tors which would be from the Company 's accounts payable system and
there was no accurate method of determining how many temporaries
were working or their hours for any particular day or week . The only
record the Company regularly maintained was the total paid for their
services. That information was not sought or volunteered Another defi-
ciency in the Company 's records is that there was no recordation of
whether a particular casual was hired to replace a specific full-time unit
member.
and did not have the three witnesses present . The Com-
pany then got the requested information and called to
have Suggs, one of the requested witnesses , present. The
other two witnesses requested by Reynolds were not
present . It is not claimed their absence prejudiced his
case or requires a finding of a violation of the Act. After
examining with Washburn the information the Company
provided , Reynolds claims they found what he believed
was 42 violations of section 24 of the contract where
temporary service employees had worked more than 6
hours a day18 or had violated the 4-hour interval. The
Company refuted that at least some of the examples
given by Reynolds were violations asserting that even
though an individual may have worked more than 8
hours on a given day , he did not work over 30 hours a
week . Reynolds claimed that the hours of the various re-
placements could be combined to' find a violation. The
Company disputed this claim . Wornum said the Compa-
ny could use casuals any time it wanted . Henderson, a
company representative , admitted that on occasion the
Company violated the contract, but on those occasions
they paid the employee union scale which remedied the
violation under the agreement . Suggs claimed the Com-
pany was not restricting the use of casuals to peak peri-
ods. Wornum replied that the Company could allocate
the work force in any manner that did not violate section
24 of the contract ; the Company was not required to
shut its doors and await the next shift to unload a truck.
Wornum tried to defer discussing the use of temporary
service employees , but Bunch insisted on discussing it
then , saying , "I am contracted with you, not with tem-
porary services ." The Company offered to have the vari-
ous temporary service companies pay the Union the 50
cents per hour and Bunch said he did not have a con-
tract with the "Manpower Company," he had a contract
with Mistletoe . After caucusing , the company representa-
tives returned to the meeting and Wornum said the
grievance was denied . Reynolds then sought to offer ad-
ditional evidence , but his request was denied . Henderson
informed him there were no' timecards demonstrating
that one employee worked over 30 hours, 2 weeks in a
row, and so Reynolds had not met his burden of proof.
Subsequently , the Union's executive board determined
not to submit this grievance to arbitration.
Reynolds considered improper the Union 's decision
not to pursue the grievance to arbitration , so he filed the
unfair labor practice charge.
According to Reynolds , the Local President Clark
subsequently indicated to him that Clark had evidence
that the Company was using casuals to replace unit
members in violation of the contract , and he had pre-
pared another grievance for Reynolds . 19 Reynolds
signed the grievance without thoroughly reading it. This
grievance also reached the third step . At the third-step
18 Reynolds did not explain how he could discern these violations
from the documents provided. Washburn did not testify At the time of
trial he was no longer a union officer; he was employed by the Company.
19 Clark testified but was not asked what evidence, if any, he had con-
cerning the use of casuals by the Company or if he had evidence that the
Company violated sec. 24 of the contract and/or Sec. 8(a)(3) and (1) of
the Act
284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
meeting, in addition to members of the incumbent union
executive board , Bunch invited Hawkins and Hale,
newly elected executive board members who would soon
be invested into their new positions replacing Bunch and
Washburn , respectively.
Reynolds claimed that Hawkins pulled him aside at the
start of the meeting and told him that he might be work-
ing for Bunch and Washburn the next week and did not
know how to advise him since he was not yet in office.
Hawkins credibly denied making this comment . As noted
above, Reynolds engaged in hyperbole . I also note that
Reynolds attempted to testify in a manner which sup-
ported his position rather than attempting to present the
facts in a clear and forthright manner. Accordingly, I
credit Hawkins' denial and credit Reynolds only where
his testimony is uncontroverted or credibly corroborated.
The Company denied the grievance at the third step,
noting : "Mr. Reynolds has been offered casual work,
which he refused . Mr. Reynolds has been offered free
training to up -grade his qualifications , which would have
retained his full-time status . He refused [sic]." The Union
sought and received additional time to consider the com-
pany decision due to the imminent change in officers.
The new union executive board decided unanimously to
arbitrate the grievance.
At the time of trial , this grievance , as well as approxi-
mately five others , were awaiting arbitration. One of
these was a class action grievance claiming the Company
used casuals in a manner contrary to the provisions of
the contract. Hawkins testified , without contradiction,
that the Union determined to file the class action griev-
ance because of Reynolds ' history of not showing up for
work after resolution of his earlier grievances afforded
him bumping rights and training, which weakened the
Union 's case . It was necessary to have the issue decided
without the issue being clouded by Reynolds' past ac-
tions.
III. ANALYSIS AND CONCLUSIONS
A. Alleged Unlawful Support
The General Counsel argues that the Employer violat-
ed Section 8(a)(2) and ' the Union Section 8(b)(1)(A) of
the Act by agreeing that the Employer would pay the
Union 50 cents an hour for each hour worked by a
casual employee. In support of this argument , the Gener-
al Counsel notes that if the Company used casual em-
ployees for the maximum number of hours allowable
under the collective -bargaining agreement it would pay
the Union $ 15 per casual employee weekly compared to
the dues of $4.03 withheld from member dockworkers.
The Employer claims General Counsel failed to prove
by a preponderance of the evidence that the 50-cent pro-
vision was rendering unlawful assistance and support to
the Union since no money was paid , and the Union
never sought enforcement of the provision ; the parties
agreed not to implement it as soon as they discovered it
was illegal . The Employer also argues that the intended
purpose of the provision was to penalize the Employer
for using casual employees ; it was to be a deterrent to
discourage the Company 's use of casuals . Mistletoe avers
the test is not the alleged illegality of the provision but
"whether the employees are in fact being deprived of
their freedom of choice ," citing NLRB v. Homemaker
Shops, 724 F.2d 535 (6th Cir . 1984). The Employer as-
serts the Board failed to prove actual control by the
Company over the Union ; on the contrary , it claims the
record shows that the Union engaged in hard bargaining
and was not dominated by the Company.
The Union argues the provision was never implement-
ed after its ratification ; no money was paid because, pur-
suant to advice from counsel , it was disregarded. The
Company's use of casuals was still protested by the
Union through the continued resort to grievances, some
of which were granted , others denied.
Unlike the resolution of the other issues in this case, a
determination of violation does not turn on credibility
resolutions. In this instance the question is whether entry
into an agreement to pay the Union 50 cents per hour
each hour a casual employee worked , which was ratified
by the membership , is violative • of the Act even though
it was never implemented . The union members and other
employees were never informed of the agreement not to
implement the provision and it was not shown to be a
matter of general knowledge among the employees.
Section 8(a)(2) of the Act declares it is an unfair labor
practice for an employer:
To dominate or interfere with the formation or ad-
ministration of any labor organization or to contrib-
ute financial or other support to it.
Section 8(b)(1)(A) of the Act provides:
It shall be an unfair labor practice for a labor orga-
nization or its agents-
(1) to restrain or coerce (A) employees in the exer-
cise of the rights guaranteed in Section 7: Provided,
That this paragraph shall not impair the right of a
labor organization to prescribe its own rules with
respect to the acquisition or retention of member-
ship therein ... .
In assessing allegations of unlawful assistance , the ag-
gregation of the facts presented are examined . Janesville
Products Division , 240 NLRB 854 (1979). "The test of
whether an employee or organization is employer con-
trolled is not an objective one but rather subjective from
the standpoint of the employees ." NLRB v. Sharples
Chemicals, 209 F .2d 645 , 652 (6th Cir . 1954); NLRB v.
Wemyss, 212 F.2d 465, 471 (9th Cir . 1954).
Within these broad precepts, the inquiry in this case is
whether the 50-cent provision , which was ratified but
never implemented , constitutes illegal support or assist-
ance . This determination includes an assessment of
whether the conduct has the "natural tendency . . . to
inhibit employees in the choice of bargaining representa-
tive," and to restrict the employee group in maintaining
an arm's-length relationship with their employer. Kaiser
Foundation Hospitals , 223 NLRB 322 (1976). This statuto-
ry proscription not only bars domination but lesser forms
of intrusion such as financial support.
The union members were informed as part of their
considerations in the ratification process of midterm con-
MISTLETOE EXPRESS SERVICE
tract modifications of the 50 -cent provision . The mem-
bers were never informed that the provision was illegal
and would not be implemented . Neither the failure to im-
plement nor the provision in the collective -bargaining
agreement which states that any contract provisions
which are not legal are not a part of the contract , consti-
tute repudiation or are otherwise exculpatory . In Shepard
Decorating Co., 196 NLRB 152 fn. 1 (1972), the Board
found a violation where there was subsequent repudi-
ation of a provision in a contract whereby the company
would pay higher wages to employees accepted for
membership in the Respondent Local.20
Assuming the correctness of Respondents ' claims that
their agreement to the 50-cent provision was made in
good faith , good faith is not a defense ; scienter is not an
element of an 8(a)(2) violation . Garment Workers v.
NLRB, 366 U.S. 731 (1961). That the provision was not
implemented is also not a defense . In Revere Copper &
Brass, Inc., 16 NLRB 437 at 455 (1939), the Board found
that although the "assistance did not ripen into a cash
contribution should be and has been given due consider-
ation , but hardly overcomes the import and significance
of the Respondent 's initial action ." Similarly, in this case
the failure to implement the provision fails to overcome
the "significance of [Respondents ] initial action." Id. The
employees were informed by the Respondent Union at
each terminal of the provision by a posting of the pro-
posal and union-led discussions of the contract modifica-
tions.
The record is devoid of any evidence regarding what
the Union 's executive board members told the employees
at the various terminals who saw the posting and/or at-
tended meetings. Thus, the Union's view of the proposal
as a penalty ' does not permit no less require a finding that
1
20 Even if, repudiation were a factor to be considered , there was no ef-
fective disavowal of the provision in this case As set forth in Passavant
Memorial Area Hospital, 237 NLRB 138 (1978):
an employer may relieve himself of liability for unlawful con-
duct by repudiating the conduct . To be effective , however, such re-
pudiation must be "timely, ' "unambiguous," "specific in nature to
the coercive conduct ," and "free from other proscribed illegal con-
duct." Douglas Division, The Scott & Fetzer Company, 228 NLRB
1016 (1977), and cases cited therein at 1024 . Furthermore , there must
be adequate publication of the repudiation to the employees involved
and there must be no proscribed conduct on the employer's part
after the publication. Pope Maintenance Corporation , 228 NLRB 326,
340 (1977). And, finally , the Board has pointed out that such repudi-
ation or disavowal of coercive conduct should give assurances to
employees that in the future their employer will not interfere with
the exercise of their Section 7 rights . See Fashion Fair, Inc. et al, 159
NLRB 1435, 1444 ( 1966); Harrah's Club , 150 NLRB 1702, 1717
(1965)
Any claimed disavowal was ineffective to abrogate the Respondent's li-
abilities in this case, for it was not timely . It was not before the ratifica-
tion vote In fact, as noted above , the employees were never informed of
the disavowal. The Respondents claim the provision was not included in
the printed version of their collective -bargaining agreement , but there is
no evidence that the document was ever distributed to the employees and
even if it had been, such action is not sufficient notice of repudiation for
it does not eliminate the possibility of mere inadvertence in its deletion in
contrast to informing the unit clearly of any repudiation The Respond-
ents failed to distribute a written retraction of the provision to any of its
employees nor did they post notices of any retraction . The employees
were never assured of their right to engage in or refrain from concerted
protected activity . Respondents unquestionably failed to meet the criteria
set forth in Passavant , supra. Cf. Auto Workers Local 376 (Emhart Indus-
tries), 278 NLRB 285 (1986).
285
such a view was transmitted to the employees or that I
find such a construction is the only logical one the mem-
bers and other employees could reach in determining if
there was a violation of the Act. The employees could
readily calculate the financial impact of the provision
which could have influenced them in their exercise of
rights guaranteed by Section 7 of the Act.
Bunch admitted that under the provision , if the Com-
pany employed a casual 29.9 hours a week, Mistletoe
would pay the Union almost $15 per week in contrast to
the union members dues of about $4.03 per week. The
operation of the provision gave the clear message that
while negotiating midterm contract modifications which
granted the Employer significant economic concessions,
and before ratification votes, the Company was' going to
make potentially major financial contributions to the
Union in return for their right to use casuals who were
not union members, thereby giving the strong impression
of rendering unlawful assistance . This interpretation was
fostered by Bunch 's statement during the August 23
union meeting in Oklahoma City, Oklahoma, that "he
was worried about the high seniority guys, and that the
rest of [the members] needed to go look for jobs." The
large scale layoff , at about the same time with the con-
comitant increased use of casuals and temporary employ-
ees further fostered this impression.
Further, assuming arguendo , the provision was intend-
ed as a penalty and such intent was related to the mem-
bership, then it would encourage employees to join the
Union as a protection against replacement by casuals and
temporaries . The Union , which possessed the information
of what it told the members, failed to adduce any testi-
mony on this point. Therefore, it failed to establish such
was the impression the employees had or should have
had. In any event , the entry into the agreement for the
50-cent payment gave the employees the impression
during negotiations for midterm collective-bargaining
agreement modifications , including significant give backs,
and before ratification votes on these proposals, that the
Union would receive significant income if the Company
hired any casuals. A special benefit was indicated as inur-
ing to the Union and derivatively union members, there-
by tending to restrain employees in their support for the
Union and members in their . votes to ratify the agree-
ment, in violation of Sections 8(a)(2) and 8(b)(1)(A) of
the Act. Shepard Decorating Co., supra; Revere Copper &
Brass, Inc., supra; Flatbush Manor Care Center, 287
NLRB 457 (1987).
Also similar to the Shepard case, id ., I find the peculiar
conditions in this case , including the length and stability
of the bargaining relationship and the Union 's current
active enforcement of the collective-bargaining agree-
ment by seeking arbitration of the Company's use of
casual and temporary employees, warrants the recom-
mending of a limited corrective order.
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Alleged Unlawful Use of Casual and Temporary
Employees in Violation of Section 8(a)(3) and (1) and
Section 8(b)(1)(A) and (2)
1. Position of the parties
It is the General Counsel's position that the Company
violated Section 8(a)(3) and (1) of the Act by laying off
unit employees and replacing them with casual and tem-
porary employees, 21 including unit employees who ac-
cepted casual status rather than unemployment. Con-
comitantly, the General Counsel claims that the Union
breached its duty of fair representation by not enforcing
the restrictions contained in the collective-bargaining
agreement on the use of casual employees, in violation of
Section 8(b)(1)(A) and (2) of the Act. In support of this
position, the General Counsel argues that the Union was
not enforcing the limitations contained in section 24 of
the contract, quoted infra, on the use of casual employ-
ees during "peak workloads22 and that casuals would
not be used to defeat other sections of the agreement
(such as seniority , call back, wage classification and
overtime pay)."
With regard to Respondent Union, the General Coun-
sel argues that it failed to enforce the contract for it ben-
efited from the provision paying 50 cents per hour
worked by casuals . The General Counsel also claims the
Respondent Employer's discriminatory motive was the
clear economic advantage realized by the use of casuals
due to the lower rates paid casuals.23
The Union denies it acquiesced in the Company's deci-
sion to lay off full-time employees and asserts that this
claim was not established "in any manner." It argues it
filed grievances on a case-by-case basis and , in January
1987, filed a class action grievance protesting the past
and continuing improper use of casuals . The Union notes
it processed over 2300 grievances since 1974, of which
1015 reached the third step and 56 were arbitrated. The
Union won about 53 percent of the arbitrations . This ar-
gument did not break down how many of these griev-
ances involved the use of casual employees and therefore
is found to be unpersuasive in resolving the issues in this
section of the decision. The grievance activities of the
Union in areas not related to the use of casuals is not
probative of a lack of acquiescence to the use of casuals
in a manner contravening the collective-bargaining
agreement and their duty of fair representation.
The Employer argues that merely establishing that it
experienced a decrease in its regular unionized work
force while increasing the number of casual employees
does not satisfy the General Counsel's burden of estab-
lishing proof of discriminatory motive . On the contrary,
it asserts, the evidence merely establishes that any
21 The General Counsel admits on brief that unit members who were
checkers were not affected by any replacement policy , and thus any ac-
tions involving checkers are not in issue
22 As previously noted the agreement does not define the term "peak
workloads," and there was no indication that the term had a mutually
agreed-upon definition distinct from the dictionary definition Suggs testi-
fied that it ran from 4 to 10 a.m. It is uncontroverted that Suggs worked
first as a regular, then as a casual employee for a regularly scheduled
workday beyond 10 a.m
25 The term casual , as used hereinafter , shall also encompass the Com-
pany's use of temporary employees.
changes resulted from "legitimate business practices' and
concerns." The layoffs in 1985 and 1986 were the result
of business exigencies occasioned by the downturn in the
oil industry and the increased competition from United
Parcel Service for intrastate small package business in
the State of Texas, which resulted in substantial operat-
ing losses . A review of Respondent Employer's annual
reports to the Interstate Commerce Commission clearly
establishes Mistletoe experienced a substantial decline in
operating revenues and was operating at a significant
deficit. The Company also notes that it regularly used
casual employees in those departments that experience
"peak workloads." It claims its use of casuals is consist-
ent with standard practices in the freight industry. There
was no evidence of such a standard practice, no less evi-
dence of such practices under similar collective-bargain-
ing agreements . On the other hand, as discussed more
fully post, it does not deny that its use of casuals
changed ; that it increased their numbers substantially
compared to the number of regular employees.
Respondent Employer's argument on brief contains no
explication of the quantity of cuts occasioned by changes
in the collective-bargaining agreement, if any, and in par-
ticular the specific impact of particular midterm modifi-
cations . The evidence, it avers, does not establish dis-
criminatory motive. 24 This argument is found to be un-
persuasive . The Company admits that it experienced a
shortage of dockworkers caused , at least in part, by the
excessive layoff of regular employees after the contract
changed in August. It is undisputed the Company offered
many regular dockworkers the choice of accepting em-
ployment as casuals at $6 per hour instead of union scale
of $8 or $8.50, at a maximum 30-hour per week, or
layoff. The Company claims the excess was caused by
more regular employees choosing to take unemployment
rather than work as casuals . Also, the layoffs allegedly
due to the negotiated changes in the contract which al-
lowed the Company to use employees in the driver/sales
classification for 2 hours per day on the dock, thereby
reducing the number of regular dockworkers needed,
would not account for the large number of regular em-
ployees laid off since August and the substantial number
of casuals used in their stead . The Company does not es-
timate the number of regular employees laid off due to
contract changes and any conclusions based on this argu-
ment would merely be based on surmise . The problem of
laying off too many dockworkers was corrected, Mistle-
toe argues, by recalling some of the laid-off employees to
full-time status ; they were not replaced by casuals and
temporaries.
The argument that the large number of regular em-
ployees who opted to take unemployment created a sur-
feit of employees does not explain the greatly, increased
utilization of casuals , for if they opted to retain employ-
ment as casuals there would then have been an even
greater reduction in the regular work force because there
would have been no need for a recall , and more regular
employees would have experienced a loss in wages and
24 The General Counsel does not aver that Mistletoe 's actions are in-
herently destructive of employee Sec. 7 rights.
MISTLETOE EXPRESS SERVICE 287
benefits . This argument thus fails to establish how the
employees ' election to take unemployment affected the
total number of casuals used from August forward. The
Company also did not state with particularity the
number of positions reduced solely because of the
change in the driver/sales position . Clearly this change is
not claimed to account for the documented substantial
reduction in the regular dockworker force. Finally, those
arguments fail to explain why Suggs and others were
regularly scheduled to work from 8 a.m. to 1:30 p.m.
when Wornum testified that the morning peak load was
from approximately 4 to 10 a .m. Most of Suggs' regular
workday was admittedly not limited to a peak time; an
occasional midday delivery would not create such a reg-
ular peak time . Respondent appears to be arguing that all
day is a peak time, which is clearly contrary to the com-
monly accepted definition of the term.
2. Discussion
Section 8(a)(3) of the Act proscribes "discrimination in
regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage
membership in any labor organization." Thus motive is a
deciding factor in determining a violation for decisions
to lay off portions of the work force, which are "pecu-
liarly matters of management prerogative." Textile Work-
ers v. Darlington Co., 380 U.S. 263, 269 (1965).
Section 8(b)(1)(A) has already been quoted above. As
here pertinent, Section 8(b)(2) makes it unlawful for a
labor union "to cause or attempt to cause an employer to
discriminate against an employee in violation of subsec-
tion (a)(3)."
As was the case in Howmet Corp., 197 NLRB 471
(1972), the analysis of the evidence has been unusually
difficult. A plethora of documents detailing the use of
casual employees were placed into evidence, and prior to
the close of the trial the parties were urged to use the
exhibits to substantiate their respective arguments. Only
counsel for the General Counsel made any resort to the
exhibits detailing the use of casuals compared with regu-
lar employees over a pertinent timeframe, and those ef-
forts are admittedly minimal, urging that the detailed cal-
culations await the compliance phase of this proceed-
ing. a s
a. Alleged violation of Section 8(a)(1) and (3)
As attachment A to the General Counsel 's brief notes,
appended hereto as appendix C, for the week of January
12, 1986, at Oklahoma City, less than one-fourth of the
work force was nonunion as was the case companywide.
25 An added difficulty is that some material in the exhibits was missing.
Some of the material was supplied by the Union , and most by the Em-
ployer . The documents as described on the record were incomplete,
weekly reports were missing , but there were more missing at the close of
the trial I find that the missing documents are not of such nature and
quantity as to require further hearing or re jection of the material. The
exhibits reflect an increase in the use of casuals during a timeframe here
material and there is no claim that the parties have any other documenta-
tion that would more clearly reflect the facts that was unavailable at the
time of the trial. There is a greater difficulty occasioned by the parties'
failure to extrapolate from the documents material and arguments that
would assist in reaching a decision.
By the week of August 27, in the midst of midterm con-
tract negotiations , only 48 out of 1165 employees at
Oklahoma City were nonunion , and companywide the
ratio was 12, 105 union employees to 751 nonunion em-
ployees. For the weeks of October 8 and October 15, at
Oklahoma City the union employee complement went
from 495 to 376 while the nonunion employee comple-
ment increased from 45 to 398; during the same time
period companywide union employees decreased from
10,028 to 9737 while the nonunion complement increased
from 834 to 2133. As of the week of June 3, 1987, at
Oklahoma City, there were 288 union employees com-
pared to 743 nonunion , and companywide there were
6456 union employees and 4167 nonunion employees.26
Appended hereto as appendix D is the summary of
dockworkers at Oklahoma City from July 1, 1986, to
June 3, 1987. On July 1, 1986, there were 33 dockwork-
ers of which 28 were regulars and 5 casuals and all were
union members with zero hours worked by nonunion
employees . In August , again during the midterm contract
modification negotiations and attendant ratification votes,
nonunion dockworkers increased substantially , probably
occasioned in part, by the change in the contract elimi-
nating the right of casuals to be union members. As of
October 22, of 18 dockworkers , only 2 were regulars and
16 were casual workers . By November 12, out of 16
dockworkers, 1 was a regular and 16 were casual non-
union employees who accounted for 343.74 of the 380.20
hours worked by all the dockworkers. For the week of
May 20, 1987, the weekly reports indicate that for Okla-
homa City there were 32 dockworkers of which 2 were
regular and 30 nonunion casuals with the regulars work-
ing a total of 71.14 hours and the casuals 666.30 hours.
However, these figures apparently do not reflect all
the dockworkers , for they do not include the temporar-
ies, which were used by the Company but not included
in the weekly reports given to the Union . Invoices were
issued which reflect that many, if not all, of the Employ-
er's terminals had used temporary employees on occa-
sion . The invoices issued by the Fort Smith, Arkansas;
Tulsa , Oklahoma; Houston, Texas; and Dallas, Texas fa-
cilities indicate that there was an increased use of tempo-
rary employees after the Union and Mistletoe again com-
menced bargaining for additional midterm modifications
in July . Except for the temporary employees paid by the
Dallas facility , all the other temporaries were paid be-
26 As noted above , the parties were afforded the privilege of filing
reply briefs to dispute the accuracy of the 6alculations derived from the
plethora of exhibits . Respondent Employer does not dispute the accuracy
of the General Counsel's calculations , but faults them for they do not in-
dicate the number of regular compared to casual employees. While this
deficiency is of concern , the problem arises from the unavailability of evi-
dence There was no question raised as to the applicability of these re-
ports at trial I note that the Company routinely prepared them for use
by the Union to police the Company 's use of casuals and I , therefore,
find they are indicative of their use of casuals . The Company presented
no persuasive evidence that the weekly employee reports were not reflec-
tive of their changing use of casuals . From at least July forward , as noted
above, casuals could not retain their membership in the Union and could
not participate in the ratification votes; unlike the situation existent from
March to July . Thus, it appears that the decrease in union members with
the concomitant increase in nonunion employees was reflective of the
Company's admitted increased use of casuals.
288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tween $5 . 80 and $6 . 10 an hour . Dallas, according to Re-
spondent, experienced a chronic shortage of regular em-
ployees, which is reflected in their payment for tempo-
raries of more than $9 per hour.
As is the case with all the exhibits , inferences must be
drawn from the material contained in these invoices for
temporary employees. The Company admitted that on
occasion temporary employee services were used to fill
other than dockworker positions ; for example, secretarial
and clerical positions . Many of the invoices and checks
do not detail the types of services these temporary em-
ployees performed ; how many temporary employees
were used or the hours they worked.
A review of these purchase orders indicates that for
the 5-day period ending September 5 the Tulsa office
paid a company named Temp Force for 41 employees,
many of whom worked 15 or more hours that week.
Temp Force was paid for the 5-day period ending Sep-
tember 12 for 41 employees, many of whom worked 20
or more hours during the period covered by the invoice.
For the 5-day period ending September 19, Temp Force
was paid for 36 employees most of whom worked over
20 hours that week and 8 of whom worked 29 or 29.50
hours. Some of them worked 5 or 6 hours a day,
Monday through Friday.
These data indicate an increased use of temporaries.
For example , for the 5-day period ending August 22, a
Tulsa invoice indicates that seven Temp Force employ-
ees were used , one for 2 hours , one for 4 hours, and one
for 15 hours; and for the 5-day period ending August 22,
seven Temp Force employees were used, one for 2
hours, one for 4 hours, four for 10 hours and one for 15
hours. By January 25, 1987, Tulsa was paying for eight
Temp Force employees who worked between 23 and 30
hours over the 5 -day period. These same employees
were used for several weeks at least working more than
20 hours each on average during the applicable 5-day pe-
riods. InFebruary 1987, one of the Temp Force employ-
ees, Samuel L. Butt, worked 33.50 hours during a 5-day
period. He was not paid union scale . In a March 1987
memorandum , Respondent Employer announced that it
was discontinuing the use of temporary employees for all
terminals except Tulsa. The basis for this decision was
not explicated in the record.
The increased use of temporary employees was accom-
panied by a concomitant decrease in union employees,
according to the material Mistletoe supplied the General
Counsel in General Counsel's Exhibit 14 and their own
Exhibit 50. For example , on July 1 the Company total
for all terminals on July 1 was 24,502.93, of which
1,808.16 were designated nonunion and 22,694.77 union.
By August 6, of 13,283.37, 1,644.75 were nonunion and
12,238.62 union. As of December 21, ' of 12,757.53,
3,565 . 18 were nonunion and 9,192 . 35 union.
After reviewing the exhibits and testimony, I conclude
the record clearly evinces a plan by the Employer to
force most of its regular dockworkers to choose unem-
ployment or work as casuals with the loss of union bene-
fits and membership . Wornum admitted substantial lay-
offs of dockworkers and use of casuals in their stead.
While the facts of the case do not fall squarely with any
similar case , I find that it is governed by the principles
adopted by the Board in Blue Cab Co., 156 NLRB 489
(1965), enfd. 373 F.2d 661 (D.C. Cir. 1967), and its prog-
eny, which hold that it is a violation for the employer to
"unlawfully and knowingly [create] conditions that make
it impossible for [the employees] to maintain their union
membership and continue to work for the Respondent."
Cf. Marquis Elevator Co., 217 NLRB 461 (1975).
See also Lifetime Shingle Co., 203 NLRB 688, 693
(1973), in which the Board held an employer had con-
structively discharged employees who left their employ-
ment after the company repudiated the subsisting collec-
tive-bargaining agreement and informed the employees
that the increases provided in the contract would not be
given effect, and the company was going nonunion. The
employees informed the company that they could not
work in a nonunion shop for it was against the union's
bylaws . In these circumstances the Board held that the
employees were required to give up their union member-
ship as a condition to continued employment . Similarly,
in the instant case, the Company admits to violations of
the collective-bargaining agreement . The Company's ac-
tions were not taken at an impasse in negotiations.27
The admission of some breaches of the contract does
not change the character of the Employer 's activities.
The collective -bargaining agreements provision permit-
ting use of casual employees during peak hours under
certain conditions does not protect the Company from a
finding of violation of Section 8(a)(3) of the Act. Initial-
ly, there is no claim , no less a showing , that the Union
waived the employees' Section 7 rights. The waiver of a
statutory right must be clear and unequivocal . A-1 Fire
Protection, 273 NLRB 964, 967 (1984).
The Employer does not present a basis for finding
such a clear and unequivocal waiver of employee rights.
While, under certain circumstances, a union may waive
employee rights, Metropolitan Edison Co. v. NLRB, 460
U.S. 693 (1983), on this record there is evidence such as
the grievances pursued by the Union and Wornum's ad-
mission that the Union claimed numerous violations of
section 24 of the collective-bargaining agreement, be-
speaking the opposite of waiver.
In this case , the regular employees who were union
members were given the choice of continuing employ-
ment as casuals with no union standing or quitting. As
noted by the Board in Ra-Rich Mfg. Corp., 120 NLRB
503, 506 (1958), enfd. 276 F.2d 461 (2d Cir. 1960):
Under the Act, a choice of this character may not
validly be imposed upon employees and is in con-
travention of the Act. An employee who, when
forced by his employer to make such a choice,
chooses to exercise his right under the Act to join
or assist a labor organization and leaves his employ-
27 The complaint does not allege a violation of Sec. 8(a)(5) of the Act.
The Union, as noted, filed grievances alleging contract violations by the
Company by their layoffs of regular employees and use of casuals in their
stead in a manner contrary to the provisions of the contract . It is not as-
serted that the grievances claim a violation of Sec. 8(a)(3) of the Act
similar to that claimed in the complaint here under consideration There
had been no decision by the arbitrator at the time of the close of this
record and there is no assertion by any of the parties that deferral to the
arbitrator is appropriate or warranted.
MISTLETOE EXPRESS SERVICE 289
ment rather than conform to such a management
policy is constructively discharged.
Similar reasoning obtains in the circumstance where em-
ployees chose to accept employment as casual workers,
rather than accept unemployment, for it forces employ-
ees to work under illegally imposed conditions or quit
their employment , which also "discourage [s] union mem-
bership almost as effectively as actual discharge." Ra-
Rich Mfg. Corp. Id.
This line of reasoning was affirmed in Reliable Electric
Co., 286 NLRB 834 (1987), in which the Board stated:
"The Respondent effectively presented the employees
with the Hobson 's choice between continued employ-
ment with lower wages and benefits or no employment
at all, rather than receipt of benefits provided by the suc-
cessor commercial agreement . It thereby constructively
discharged the forelisted six commercial journeymen and
apprentices in violation of Section 8(a)(3)." Citing White-
Evans Service Co., 285 NLRB 81 (1987); and Superior
Sprinkler, Inc., 227 NLRB 204 (1976).
Both those employees who accepted unemployment
and those who chose to become casuals were forced to
surrender their statutory representation , which is also an
unfair labor practice requiring a similar remedy. See
White-Evans Service Co., supra, fn. 6.
The extensive use of casuals, including temporaries,
has not been shown by Mistletoe to be consistent with
past practice and, thus, the finding of a violation is not a
substitution for the Employer' s business judgment. In
reaching this conclusion , consideration was given to the
financial data presented by the Company, but it cannot
be used as a substitute for bargaining or complying with
the collective-bargaining agreement which limits the use
of casual employees to peak periods ; the observance of 4-
hour intervals between use of casuals and other condi-
tions Mistletoe failed to follow.
It could be argued that the issue merely presents a
contract dispute where the question is solely one of con-
tract interpretation . As the Board held in NCR Corp.,
271 NLRB 1212 (1984), it will not attempt to determine
which of two equally plausible contract interpretations is
correct. Cf. Thermo Electron Corp., 287 NLRB 820
(1987). Contrary to these cited cases, in the instant pro-
ceeding there is no absence - of evidence that the Employ-
er acted out of animus towards the Union , or in bad
faith , or sought to undermine the Union . Compare Murd
Industries, 287 NLRB 864 (1987).
Wornum 's admissions and other evidence of record
demonstrate the Employer frequently observed the col-
lective-bargaining agreement in the breach . The term
"peak" as defined by The Random House Dictionary of
the English Language 2d ed. Unabridged , Random House,
N.Y. 1987; is: "(3) the highest or most important point or
level. . . . (6) a time of the day or year when traffic,
use, demand , etc. is greatest and charges , fares, or the
like are at the maximum ." As previously noted , there is
no evidence the parties agreed the term should have
other than the common -accepted definition.
Suggs credibly testified28 while . he was present as a
casual he had a regular work schedule and took the op-
portunity to observe how casuals were employed
throughout the day. In contrast, Respondent, who had
the documents and operating information , failed to
present exhibits contradicting Suggs' testimony about the
use of casuals in the loading and unloading of freight.
Not one dock supervisor or other management represent-
ative testified about how and when the .casuals were
used , particularly and specifically in relation to business
or operational peaks . The Employer did not adduce such
evidence as bill counts or other indicia of a concomi-
tance of work with staff levels.
In comparison to Suggs was the testimony of
Wornum , who initially claimed that normally casuals
were utilized only in the dock department in contrast to
other testimony where he asserted that casuals were used
in several departments that experienced peak loads. He
also testified that there was not a standard routine where
casuals reported to work daily at 8 a .m. Wornum later
testified that there were regular schedules for casuals to
encompass the two peak periods that occurred during
the day: the first from 4 or 4:30 a.m. to 9 or 10 a.m., and
the other from 5:30 p.m. to 9 or 9:30 p.m. He also con-
sidered a peak load any unexpected truck coming to the
dock . Furthermore , he considered days as peaks, such as
Mondays and Tuesdays . Thus, Wornum indicated a peak
period was whatever Mistletoe determined it to be, and
it could be all day everyday. Wornum's testimony,
which was at times inherently inconsistent , and his de-
meanor was not as convincing as Suggs', will be credited
only where uncontradicted, is an admission against inter-
est, or is convincingly corroborated.
, Wornum admitted that the Company abused section 24
and did not pay casuals union scale when they worked
over 6 hours a day . None of the temporary employees
were paid union scale when they worked more than 6
hours a day. As previously noted, Wornum admitted in
his affidavit casuals were used in place of laid-off regular
employees.
Suggs, on the other hand, testified convincingly that
he had a regular schedule as a casual employee. Time-
cards or other evidence particularly within the control of
Respondent Employer was not offered in rebuttal and
Wornum did not specifically refute this claim.
Suggs testified that he worked during both peak and
slack times .. In addition to about 5 regular employees, up
to 10 casuals worked and later in the day the Company
would , at times, bring in temporary employees whom he
observed reporting to work before he finished his shift.
There was no refutation that these incidents happened
and were violations of section 24 which required a 4-
hour period between the end of one casual's shift and the
commencement of another . There was no claim the tem-
poraries fit into a classification other than casual employ-
ees. Thus, the extensive use of temporaries, as indicated
by the invoices briefly described infra, illustrates a fur-
ther disavowal of the collective-bargaining agreement. I
28 As found infra, the testimony of Suggs is credited based principally
on demeanor ; he appeared forthright and attempted to be candid
290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
also note Suggs credibly asserted the peak period ran
from 6 to about 10 p.m. when the driver/salesmen re-
turned and the freight had to be unloaded and reloaded
on outbound trailers and the 4 to 8 a .m. peak period was
not staffed by casuals.
Suggs observed that at the time of the layoffs and
within the month thereafter there was more work to be
performed on the docks than before the layoffs . While it
may be argued that some layoffs would have occurred
due to economic exigencies, the evidence does not sup-
port a finding that the number of regular employees laid
off would have lost their full-time positions absent the
wholesale substitution of casual and temporary employ-
ees, which Mistletoe admitted at times was in contraven-
tion of the collective-bargaining agreement.
The Company never adduced any evidence of how
many employees would have been laid off if it had not
engaged in the wholesale substitution of casual and tem-
porary employees for regular employees . As Employer's
vice president of administration , Fish admitted the tem-
porary employees were paid by the independent contrac-
tors and they were ledgered under the accounts payable
system rather than the payroll system . They did not keep
a tally of how many hours these employees worked or in
what . capacity when performing services for Mistletoe.
Mistletoe never claimed , no less demonstrated , that it at-
tempted to operate in a manner consonant with the pro-
visions of their collective-bargaining agreement. To the
contrary , Wornum admitted terminal managers regularly
ignored the provisons of section 24 of the contract.
The Employer also did not indicate a reduction in
business similar to the reduction in regular employees at
each terminal . The number of casuals and temporaries
employed indicate that there was not a diminution in
business directly equatable to the layoffs . The record
contains unrefuted evidence that if the Union and its
members acquiesced to Mistletloe 's bargaining demands
there would not have been the wholesale layoff of regu-
lar dockworkers and the substitution of casuals to per-
form their work . In conclusion, I find Respondent Em-
ployer violated Section 8(a)(3) and ( 1) of the Act by
these actions.
As the General Counsel argues, the examination of all
the documentary evidence to determine which employ-
ees were laid off on July 21 and subsequently and re-
placed by casuals or forced to accept loss of union mem-
bership privileges and attendant benefits , will take a sub-
stantial amount of time which is not necessary at this
juncture . Accordingly, I recommend the identification of
the individual discriminatee be left to the compliance
stage of this proceeding.
b. Union 's alleged violation of Section 8(b)(1)(A) and
(2) of the Act
The General Counsel asserts that the Union violated
Section 8(b)(1)(A) and (2) of the Act by failing to en-
force the contractual provisions restricting the use of
casual employees, citing Vaca v. Sipes, 386 U.S. 171, 177
(1967); Williams Sheet Metal Co ., 201 NLRB 1050 (1973);
and Miranda Fuel Co ., 140 NLRB 181 ( 1962), revd. 326
F.2d 172 (2d Cir . 1963). The record clearly establishes
that Respondent Company often observed section 24 in
the breach . It is also established • that the Respondent
Union filed numerous grievances concerning those bla-
tant failures to comply with the terms of the collective-
bargaining agreement.
I find that the General Counsel failed to establish 'that
Respondent Union acquiesced or aided the Respondent
Employer in these violations of the collective -bargaining
agreement in violation of Section 8(b)(1)(A) and (2) 'of
the Act. As discussed post, the Respondent Union deter-
mined to pursue a class action grievance to arbitration
after considering Reynolds' failure to exercise his bump-
ing rights as possibly weakening the grievance they
brought to arbitration concerning Reynolds' layoff. The
class action grievance asserts that the layoffs of the regu-
lar employees and use of casual and temporary employ-
ees in their stead violated the collective-bargaining
agreement.
In determining whether a union , breached its duty of
fair representation, the applicable standard requires a
broad scope of inquiry, including a finding that the
Union's conduct was arbitrary or based on irrelevant, in-
vidious, or unfair considerations . A finding of negli-
gence, standing alone, does not constitute arbitrary con-
duct . The General Counsel must demonstrate more than
mere negligence to justify finding a violation of Section
8(b)(1)(A) and (2) of the Act. Office Employees Local 2,
268 NLRB 1353 ( 1984), affd. sub nom . Eichelberger v.
NLRB, 765 F.2d 851 (9th Cir . 1985).
As the Board found in Miranda Fuel Co., supra at 188,
a union 's breach of its duty of fair representation is
deemed a violation because any arbitrary union action
which adversely affects an employee tends to encourage
or discourage union membership , even if "the moving
consideration does not involve the specific union mem-
bership or activities of the affected employee(s)." In de-
termining if the Union violated Section 8(b)(2), "it is not
necessary that a union act with the precise motive of en-
couraging union membership, a union will be held re-
sponsible for the ' foreseeable consequences of its actions,
and if the consequence is encouragement of union mem-
bership or obedience of its members, a violation will be
found." NLRB v. St. Joe Paper Co., 319 F.2d 819 (2d Cir.
1963).
I find the evidence fails to 'establish the Union's ac-
tions, as detailed on the record , constitute a breach of its
duty of fair representation. The Company 's use of casuals
has been a longstanding source of controversy in the par-
ties' collective-bargaining relationship , with the Union
filing numerous grievances over asserted 'violations of
section 24 of the contract and bargaining about the use
of casuals at every opportunity . Some of the provisions
the union leadership deemed protective of unit member
jobs, such as retention of union scale wages and union
membership if a regular employee works as a casual,
were deleted from the contract at the insistence of the
union's members who wanted the option to take unem-
ployment rather than casual status . There was no show-
ing that the Union knew or should have known that ac-
quiesence to their members' wishes would result in loss
of jobs. On the contrary, the Union sought the penalty,
herein found unlawful, of 50 cents an hour for each hour
MISTLETOE EXPRESS SERVICE 291
worked by casuals to dissuade the Employer from re-
placing its members or making unit members casuals.
There was no convincing evidence that the 50-cent pro-
vision induced the Union to alter its representational
vigor or otherwise engage in conduct which could be
deemed a breach of its duty of fair representation.
An examination of the bargaining history concerning
the midterm contract modifications in both March and
the summer and fall of 1986, reveals the Union bargained
forcefully on behalf of the unit it represents. The dire fi-
nancial condition of the Company required some com-
promise, but no compromise was demonstrated to consti-
tute a breach of the Union's duty of fair representation
during these pressured negotiations. Richard Lingo, the
union secretary, testified without refutation the Union's
executive board was attempting to get the best agree-
ment for its members balanced against the Company's
ability to pay for the agreement.
The General Counsel argues that the Union should
have arbitrated the Company's alleged violations of sec-
tion 24 of the collective-bargaining agreement and its
failure to police the contract through arbitration was a
violation of the Act. This argument is unpersuasive
absent any convincing evidence that prior to Reynolds'
and the class action grievances the Union possessed or
should have possessed information indicating the Compa-
ny was blatantly violating the contract by laying off reg-
ular employees and replacing them with casual employ-
ees.29 Accordingly, I recommend that this allegation be
dismissed.
Reynolds based his assertion, at least in part, upon rep-
resentations by William Clark, then president of 'the
Oklahoma City local and member of the Union's execu-
tive board, that he had evidence the Company was vio-
lating section 24. Clark, who testified, never claimed he
had such evidence; in fact, his testimony never addressed
this assertion by Reynolds. Ralph Hawkins, the Union's
current National president, tried to get such documenta-
tion from Clark without success; he could not even learn
what type of evidence Clark ostensibly possessed.
As noted in the preceding section, as a concomitant to
a labor organization's exclusive representation rights con-
tained in Section 9(a) of the Act, the Board and the
Courts have imposed an obligation to fully and fairly
represent those employees for whom they are the exclu-
sive representative. In Vaca v. Sipes, supra, 386 U.S. 171,
177, 190,, the United States Supreme Court held:
It is now well established that, as the exclusive bar-
gaining representative of the employees . . . the
Union [had] a statutory duty fairly to represent all
of those employees. . . . [This duty] includes a stat-
utory obligation to serve the interests of all mem-
bers without hostility or discrimination toward any,
to exercise its discretion with complete good faith
and honesty, and to avoid arbitrary conduct. . . . A
breach of the statutory duty of fair representation
occurs only when a union's conduct toward a
member of the collective-bargaining unit is arbi-
trary, discriminatory or in bad faith.
c. Alleged violation of Section 8(b)(1)(A) (2) by the
Union's failure to process Reynolds' grievance
The General Counsel argues that the Union's failure to
take one of Reynolds' September 18 grievance concern-
ing the use-of casuals to arbitration for the reasons stated
in her argument regarding the Union's actions in negoti-
ating and enforcing the contract, particularly section 24,
was violative of Section 8(b)(1)(A) and (2) of the Act.
The Union avers that its failure to process the grievance
beyond the third step was not violative of the Act for
Reynolds failed to report to work in the shop after
agreeing to train for the position of shop utility in resolu-
tion of another grievance was considered as weakening
their case. The Union's executive board voted on the
issue and determined that Reynolds' grievance was not
meritorious. The Union then determined to take Reyn-
olds' subsequent grievance containing a similar allegation
to arbitration and any delay in processing Reynolds'
grievance is not a violation of the Act.
29 I note that on the second day of trial , I suggested that the parties
may wish an adjournment to develop the record rather than trying to in-
vestigate and try the case simultaneously At this juncture the General
Counsel had rested . The Union had just revealed that it had , in its con-
tinuing investigation of the potential company violations of sec . 24 of the
collective-bargaining agreement after September 1986, received some
scheduling sheets from the Dallas terminal . The Union represented, with-
out contradiction, that the material was made available to the General
Counsel . The Union and Company opposed an adjournment at that time
for they had gone to considerable expense to prepare for the trial and
had out-of-town witnesses present . Since the General Counsel had rested
and had access to the scheduling sheets , the trial was not adjourned. The
General Counsel never introduced the scheduling sheets.
Therefore, represented employees are protected from
arbitrary, irrelevant, or invidious discrimination by their
exclusive representative by'virtue of this duty to fairly
represent them. This duty extends to the investigation
and representation of employees in the processing of
grievances. However, the Board and the Courts have af-
forded the Union's substantial latitude in their representa-
tional decisions. Id.
The Board held in Service Employees Local 579 (Beverly
Manor), 229 NLRB 692, 695 (1977):
So long as it exercises its discretion in good faith and
with honesty of purpose, a collective bargaining repre-
sentative is endowed with a wide range of reasonableness
in the performance of its duties for the unit it represents.
Mere negligence, poor judgment, or ineptitude in griev-
ance handling are insufficient to establish a breach of the
duty of fair representation.
The Board further explained in Glass Bottle Blowers Local
106 (Owens-Illinois), 240 NLRB 324 (1979):
Where, as here, a union undertakes to process a
grievance but decides to abandon the grievance
short of arbitration, the finding of a violation turns
not on the merit of the grievance but rather on
whether the Union's disposition of the grievance
was perfunctory or motivated by ill will or other
invidious considerations.
Also, the relative merits of a grievance may bear directly
upon the arbitrariness of a union 's failure to process it,
292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
but proof of actual merit is not essential to the . establish-
ment of a breach of the union's duty of fair representa-
tion. Glass & Pottery (Owens-Corning Fiberglass), 282
NLRB 1297 (1987).
The General Counsel has failed to establish any of
these prerequisites for finding a violation by a preponder-
ance of the credible evidence.
As previously noted, the General Counsel avers that
the Union failed to take Reynolds' September 18 griev-
ance to arbitration for it wanted to receive the greater
revenues anticipated from the 50 -cent provision , as indi-
cated by Reynolds' testimony that at the third step meet-
ing Henderson, a company representative , told. Bunch:
"Well Don, the way this will work is that we'll total the
hours of the Manpower [temporary] employees and we'll
pay' them 50 cents . Then, Manpower just reimburses you
with a check." This excerpt is misleading. The ' entire
conversation does not indicate that the Union or its rep-
resentatives are acquiescing to the Company's position
because of the 50-cent provision.S0
In a subsequent conversation , Bunch told Reynolds
that "although he realized that the Company had elimi-
nated my job and replaced me with the casuals, that he
just couldn 't prove it and that, on that fact, he was going
to drop the grievance on lack of merit."31
90 The entire conversation, according to Reynolds ' testimony , is as fol-
lows:
Mr. Bunch looked at Mr . Wornum and said , "I want to know what
the hell you 're doing farming out my work ." Mr. Wornum said,
"Well, I don 't know what you're talking about ." He [Bunch] says,
"Well, you're using these Manpower, these temporary people.
You're farming out my work ." And, he said ... Mr. Wornum said,
"Well, we'll get into that later." And, Mr. Bunch said, "No, we're
going to get into that now I am contracted with you, not with the
temporary services." Mr. Henderson then replied , "Well, Don, the
way this will work is that we 'll total the hours that the hours of
the Manpower employees, and we 'll pay them the $. 50. Then, Man-
power just reimburses you a check." And, Don said ,- "Well, no, I
don't ... there again , I don't have a .contract with temporary serv-
ices. I have a contract with Mistletoe Express ." That was at the time
Mike Wornum called for a recess . . . to get his head together to
figure out how he was going to rule . Management caucused to
deliberate [on its ruling].
When Wornum returned he said: "Well, I'm going to deny this
grievance on the fact that there are individual cases where the con-
tract is being violated , but not to the extent ... it's not to the extent
of putting you back to work . [There were instances when casuals
worked more than 6 hours in one day but that violation was rectified
by paying the person union scale . Reynolds also understood that he
was too low in the seniority list to be reinstated if he proved the
allegations in his grievance .] Paul Henderson then told Reynolds,
"Look we went over the timecards, and you can 't show me no one
man that ever obtained over 30 hours a week for two weeks in a
row. That's what ... that's what you had to show." Reynolds then
asked for copies of the timecards and Bunch agreed to make them
available for him at the Union hall.
a' As here pertinent, the grievance provides in part:
On September 10, 1986 , I was told I was being put on layoff status. I
asked Mr Martin why . He said, because there was not a full day's
work available and that the Company and the Union did away with
the classification of dock worker According to the agreement be-
tween the Company and the Union I feel that the Company is in vio-
lation of Section 24. The Company has used casuals to eliminate full
time jobs, not to relieve the peak workloads On Monday , September
15, Clarence Suggs worked from 0800 to 1402 hours which entitled
him to receive union wages . He is also being used to spot trailers. On
that particular day I believe that there also was not a four-hour in-
terval between the work schedule of casuals. I feel that the Compa-
ny laid me off without just merits, just to deny me my right to vote
on such tentative agreement . There should be no casuals used from
According to Wornum's uncontroverted testimony,
the Company granted Reynolds' grievance in part, it
paid a sum of money to the most senior. ex-full -time em-
ployee that was working as a casual . Also, Reynolds'
right to bump into the shop as soon as he was qualified
was recognized . Reynolds, as previously indicated, ac-
cepted this resolution of bumping privileges in another
grievance considered the same day, but after agreeing to
train for the shop position did not report to work, con-
trary to his representations , and did not inform his em-
ployer of his decision not report to work . Wornum ex-
plained the Company's decision as being based on its
claim that there was insufficient work on the dock and
Reynolds previously agreed that day to bump into the
shop.
The record fails to reveal any evidence of union
animus or hostility toward Reynolds. No grievances con-
cerning alleged violations of section 24 of the collective-
bargaining agreement were ever arbitrated prior to the
current group of grievances now pending before the ar-
bitrator which were filed after September 18. The
Union's past conduct in handling similar grievances does
not indicate disparate treatment in handling Reynolds'
grievance . The Union's failure to pursue the grievance to
arbitration was not shown to constitute arbitrary conduct
or perfunctory treatment. The Union simply determined
that it could not prove the allegations, and arbitration
would be fruitless ; proceeding seemed unlikely to suc-
ceed. When the Union determined it might prevail over
the issues it took both Reynolds' October grievance and
a class action grievance to arbitration . I conclude that
the Union exercised its discretion in good faith, and at
most, its lack of information and appreciation of the facts
it did have at hand, were caused by ineptitude which is
insufficient to establish a breach of its duty of fair repre-
sentation . Beverly Manor Convalescent Center, supra, 229
NLRB at 695 . There is no convincing evidence that the
Union abused its discretion in refusing to process the
grievance beyond the third step.
In sum, I find the General Counsel has not established
that the Union breached its duty of fair representation by
failing to arbitrate the previously described Reynolds'
grievance and I recommend that this allegation of the
complaint be dismissed.
CONCLUSIONS OF LAW
1. Mistletoe Express Service is an employer engaged in
commerce or in an industry affecting commerce within
the meaning- of Section 2(6) and (7) of the Act.
2. Motor Expressmen 's Union is a labor organization
within the meaning of Section 2(5) of the Act.
0800 to 1400 hours. There is work available for full time employees,
such as preloading outbound trucks , making swaps , or other assigned
duties. I am asking to be recalled as a full time employee and for all
back wages due me.
The Company denied the grievance at the second step contending
"The Company may utilize casual employee in any position They
are presently used to relieve peak load periods. The Company laid
off due to seniority and job classifications . Also Union may not des-
ignate work times as long as there is a four -hour interval between
casual shifts " The Union appealed this decision by Reynolds ' super-
visor Tommy Henderson.
MISTLETOE EXPRESS SERVICE 293
3. Respondent Company and Respondent Union, by in-
cluding in a contract a clause requiring the Company to
pay the Union 50 cents for each hour worked by a
casual employee unlawfully assisted or supported the Re-
spondent Union in violation of Section 8(a)(1) and (2)
and Section 8(b)(1)(A) of the Act.
4. By laying off regular employees , including employ-
ees who chose to accept status as casual employees in
lieu of layoff and replacing such employees with casual
employees (including unit members who chose reduction
to casual status rather than layoff), thereby constructive-
ly discharging these employees in violation of Section
8(a)(3) and (1) of the Act.
5. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. The Respondents have not otherwise violated the
Act.
THE REMEDY
Having found that Respondent Employer has engaged
in unfair labor practices proscribed by Section 8(a)(3),
(2), and (1) and Respondent Union, Section 8 (b)(1)(A) of
the Act, I recommend that they cease and desist there-
from , and that they take certain affirmative action de-
signed to remedy the unfair labor practices and to effec-
tuate the policies of the Act.
Having found that Respondent Company and Re-
spondent Union violated Section 8(a)(1) and (2) and Sec-
tion 8(b)(1)(A) of the Act by placing in their contract a
clause which has not been implemented but never re-
scinded providing that the Respondent Employer pay
the Respondent Union 50 cents for each hour worked by
a casual employee, the General Counsel seeks a remedy
similar to that imposed by the Board in Jackson Engineer-
ing Co., 265 NLRB 1688 (1982), enfd . sub nom. Long-
shoremen ILA Local 1814 v. NLRB, 735 F.2d 1384 (D.C.
Cir. 1984). For the previously stated reasons, and consid-
ering the long-term relationship between the parties and
the restoration to the status quo ante ordered herein, I
find that the posting of a proper notice informing all
members and employees that Respondent Union and Re-
spondent Company will not include any such agreement
in their contracts hereafter and that they never imple-
mented the clause is sufficient under the unusual circum-
stances of the case . Shepard Decorating Co., supra, 196
NLRB 152 (1972).
The General Counsel also seeks a visitatorial clause,
which the canned brief does not show is warranted in
the circumstance of this case , and it is denied.
Cherokee Marine Terminal, 287 NLRB 1080 ( 1988).
The General Counsel has requested that Respondent
Employer be required to reimburse those employees who
were laid off in violation of Section 8(a)(1) and (3) of the
Act, including those employees who chose to accept em-
ployment as casual employees at reduced wages and ben-
efits, for any loss of earnings sustained by reason of the
Employer's wrongful conduct . The General Counsel fur-
ther requests leave to identify the individual employees
injured by these violations at the compliance stage. Con-
sidering the nature of the violation and the difficulty of
identifying the individuals so injured , I find this request
appropriate and recommend determination of offers of
reinstatement and backpay obligations to employees un-
lawfully laid off or reduced to casuals be deferred to the
compliance stage of the proceedings . Once such individ-
uals have been identified , I shall recommend that Re-
spondent Employer be ordered to offer each of them full
and immediate reinstatement to their former positions,
or, should those positions no longer exist , to a substan-
tially equivalent position , without prejudice to their se-
niority or other rights and privileges they may have been
entitled , and to reimburse them for any loss of pay and
other employee benefits they may have suffered. The
backpay periods will have to be determined during the
compliance stage of this proceeding . Backpay for such
employees and interest thereon shall be computed in the
manner set forth in F. W. Woolworth Co., 90. NLRB 289
(1950), with interest accrued prior to January 1, 1987,
computed in accordance with Florida Steel Corp., 231
NLRB 651 (1977), and in accordance with the Board's
decision in New Horizons for the Retarded, 283 NLRB
1173 (1987), interest on and after January 1, 1987, shall
be computed at the "short -term Federal rate" for the un-
derpayment of taxes as set out in the 1986 amendment to
26 U.S.C. § 6621.
[Recommended Order omitted from publication.]
APPENDIX C
Dockworkers in Oklahoma City on July 1, 1986 (GC - 14.22)
numbered 33, and their identities, union status, and
regular/casual status are as follows:
Union orName Nonunion Regular or Casual
Berry , M. Union Regular
Boles, J. K. Union Regular
Bolton, J. L. Union Regular
Bowler, D. Union Regular
Broyles , W. B. Union Regular
Champlin , T. J. Union Regular
Daniels, A. L. Union Casual
Dietz, J . H. Union Regular
Downing Union Regular
Foster, V. L. Union Regular
Grigsby , T. J. Union Regular
Haney, M. D. Union Regular
Hart, D. R. Union Regular
Hundley , E. G. Union Regular
Jack , R. Union Regular
Johnson , R. J. Union Regular
Lape, T. A. Union Regular
Moore, S. Union Regular .
Neal, G. W. Union Regular
Nickel, E. R. Union Regular
Oviatt, R. N. Union Regular
Pringle, D. G. Union Casual
Ramsey, W. E. Union Regular
Robb , S. L. Union Regular
Robertson , C. D. Union Casual
Schrif, P. T. Union Regular
Smith , R. D. Union Casual
Smithson, S. H. Union Casual
Smittick , E. L. Union Regular
Spangenberg, P. J. Union Regular
Suggs , C. Union Regular
294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dockworkers in Oklahoma City on July 1, 1986 (GC-14.22)
numbered 33, and their identities , union status, and Week of Oklahomaregular/casual status are as follows : City Union'
APPENDIX C APPENDIX D
Name
Wilson, O.
Wright, J. E.
Week of OklahomaCity Union'
Union or
Nonunion
Union Regular
Union Regular
Regular or Casual
Oklahoma Company- Company-
City wide Union Non
wide
union
8-27-86 1167 46 11937 891
9-3-86 1165 48 12105 751
9-10-86 961 23 10055 547
9-17-86 967 21 9942 1133
9-24-86 482 28 9399 1186
10-1-86 498 30 10108 735
10-8-86 495 45 10028 834
10-15-86 376 398 9737 2133
10-22-86 315 353 9445 2146
10-29-86 335 337 9385 2321
11-5-86 341 671 9688 3671
1-12-86 343 343 9737 3207
11-19-86 354 357 9960 3395
11-26-86 350 373 9271 3181
APPENDIX D
Oklahoma
City
Nonunion
Company-
wide Union
Company-
wide
Nonunion
1-12-86 1346 311 28464 4520
1-19-86 1359 163 25344 4849 Exhibit as furnished by Court Reporter went from
1-26-86 1401 159 25234 5118 week of 11-26-86 to week of 12-7-86.
2-1-86 1214 138 28549 5108 12-7-86 454 421 9380 3439
2-9-86 1432 154 27741 5080 12-14-86 724 468 9848 3760
2-16-86 1244 93 28168 4748 12-21-86 665 399 9192 3565
2-23-86 1234 155 29233 4947 12-28-86 251 12 2435 1238
3-2-86 1352 142 26731 4352
3-9-86 1463 151 27122 2964 Exhibit as furnished by Court Reporter went from
3-16-87 1370 138 26472 3111 week of 12 -28-86 to week of 1-14-87.
3-23-86 1353 82 26164 3290 1 - 14-87 59 252 No Entry in
3-30-86 1320 - 24965 3141 exhibit.
4-6-86 1253 - 24961 2729
4-13-86 806 - 25341 2721
Weekly reports missing from 1-14-87 to 3-4-87.4-20-86 1044 - 24612 2591
4-27-86 795 - 24258 2628 3-4-87 357 500 8319 4810
Exhibit as received from court reporter had no 3-11-87 Missing
weekly labor reports for May, 1986. 3-18-87 Missing
3-25-87 333 763 8138 5634
6-4-86 - - - - 4-1-87 367 803 7932 6174
6-11-86 - - - - 4-8-87 373 769 8155 6018
6-18-86 - - - - 4-15-87 385 736 7948 6394
6-25-86 1543 - 23398 2221 4-22-87 347 640 7804 5879
7-1-86 1519 - 22694 1808 4-29-87 361 679 7826 6102
7-9-86 1187 - 18054 1459 5-6-87 395 705 8044 6320
7-16-86 1023 73 Entry 5-13-87 378 757 7713 7251
missing 5-20-87 336 666 7514 5264
from 5-27-87 Missing
Exhibit 6-3-87 288 743 6456 4167
7-23-86 1481 - 22534 1566
7-30-86 1137 - 12560 947 ' General Counsel asserts that many of the hours denominated
8-6-87 1303 - 12238 1044 as Union are those worked by checkers ; a class of workers not
8-13-86 1568 - 12263 818 replaced by casuals ; and they should be excluded from the
8-20-86 1381 - 12001 851 computation.