Mount Hope Trucking Co.

National Labor Relations Board - Board Decisions

Nov 24, 1993

313 N.L.R.B. 262 (N.L.R.B. 1993)

262
313 NLRB No. 36
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 An erratum was issued on May 10, 1993.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 We shall modify the judge’s remedy to make whole the unit em-
ployees for those losses, if any, that they suffered because of the Re-
spondent’s unilateral changes violating Sec. 8(a)(5) of the Act.
4 All dates are in 1992, unless otherwise noted.
5 NLRB v. Cauthorne, 691 F.2d 1023, 1025 (D.C. Cir. 1982);
NLRB v. Carilli, 648 F.2d 1206, 1214 (9th Cir. 1981).
6 See Intermountain Rural Electric Assn., 305 NLRB 783, 786
(1991).
7 We do not, however, reach the judge’s findings regarding wheth-
er the Respondent unlawfully changed health insurance benefits in
March 1992 as the General Counsel had withdrawn this allegation
of the complaint.
Mount Hope Trucking Company, Inc. and Local
560, International Brotherhood of Teamsters,
AFL–CIO. Cases 22–CA–18400 and 22–CA–
18691
November 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On April 29, 1993, Administrative Law Judge James
F. Morton issued the attached decision.1 The General
Counsel and the Respondent filed exceptions and a
supporting brief, and the Respondent filed a brief in
opposition to the General Counsel’s exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,2 and conclusions, to provide a new rem-
edy,3 and to adopt the recommended Order as modi-
fied below.
1. We adopt the judge’s finding that the Respondent
violated Section 8(a)(5) of the Act in August 19924
when it unilaterally changed the insurance carrier for
the unit employees’ health insurance plan. The consoli-
dated complaint also alleges that the Respondent fur-
ther violated Section 8(a)(5) ‘‘[o]n or about March 23,
1992,’’ by ‘‘implement[ing] changes in the terms and
conditions of employment of the unit employees, in-
cluding changes in health care benefits and wages.’’ At
the outset of the hearing, the General Counsel with-
drew the March allegation relating to unilateral
changes in health care benefits. The General Counsel
continued to allege, however, that the Respondent vio-
lated the Act by its March wage changes.
Regarding this last allegation, it is well established
that where, as here, the parties are bargaining over a
successor agreement, the expired contract continues to
define wages and benefits for the unit employees and
the employer is required to maintain the status quo
until the parties reach a new agreement or bargain to
impasse.5 It is undisputed that the Respondent in this
case granted the employees a wage increase before no-
tifying the Union. While the Respondent does not
claim that the parties had reached a bargaining im-
passe, the Respondent has attempted to justify its con-
duct by arguing in effect that the Union abandoned the
bargaining process and thereby waived the right to ob-
ject to the wage change. The credited evidence, as
fully set out in the judge’s decision, does not establish
that the Union ever engaged in delaying tactics here or
in any manner led the Respondent to believe that it
was free to act unilaterally.6 Under these cir-
cumstances, we find that the Respondent has not estab-
lished a clear and unmistakable waiver by the Union
of the right to bargain about changes in terms and con-
ditions of employment. See generally Metropolitan
Edison v. NLRB, 460 U.S. 693 (1983). We therefore
conclude that the Respondent further violated Section
8(a)(5) in March by unilaterally granting the unit em-
ployees a wage increase.7
2. At the close of the hearing, the General Counsel
moved to amend the consolidated complaint to allege
that the Respondent also violated Section 8(a)(5) when
it bypassed the Union and dealt directly with the unit
employees concerning their terms and conditions of
employment. The General Counsel relied on testimony
by the Respondent’s president, Robert Carballal, re-
garding his conversations with employees about the
parties’ failure to reach a new collective-bargaining
agreement. The judge deferred ruling on the General
Counsel’s motion until he received the parties’ briefs.
In his decision, the judge denied the motion to
amend because he found that the issue of the Respond-
ent’s alleged direct dealing had not been fairly and
fully litigated. He further concluded that, in any event,
the evidence did not warrant finding a violation on the
merits because the wage issue that Carballal discussed
with the unit employees was a matter that the Re-
spondent previously had submitted to the Union.
Without passing on the issue of whether the General
Counsel’s proposed amendment was proper, we find
that the evidence regarding Carballal’s discussions
with the unit employees did not rise to the level of un-
lawful direct dealing. We emphasize that during his
testimony on this subject Carballal stated that the
Union’s shop steward, Robertson, was present when
Carballal spoke with about 10 unit employees concern-
ing the parties’ failure to reach a successor agreement
while they waited to load their trucks. Because the
record fails to disclose whether it was Carballal or the
employees themselves who initiated this conversation
and because the Union’s agent, Robertson, was present
to represent its interests, we find that the record is too
263MOUNT HOPE TRUCKING CO.
8 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
vague and the evidence does not affirmatively establish
that Carballal dealt directly with the unit employees in
violation of Section 8(a)(5). The General Counsel, in
arguing that the Respondent engaged in unlawful direct
dealing, also relies on Carballal’s testimony that he
‘‘poke to employees from time-to-time’’ and that he
had ‘‘a group of administrators who deal with the
truckers, who talk to the men on a regular basis.’’ The
skimpy evidence regarding these conversations, how-
ever, fails to establish that Carballal and his ‘‘adminis-
trators’’ ever made any promises of benefits to the unit
employees or otherwise attempted to erode the Union’s
position as their bargaining agent. For these reasons,
we conclude that the General Counsel has failed to
meet his burden of showing that the Respondent vio-
lated the Act. Thus, even assuming the matter was
fully litigated, we find no merit to this allegation.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist and to take certain affirmative action
designed to effectuate the purposes of the Act.
Having found that the Respondent made unlawful
unilateral changes in the employees’ wages and health
insurance benefits, we shall order the Respondent to
rescind these changes in employees’ terms and condi-
tion of employment if the Union so requests. We shall
also order the Respondent to make whole the unit em-
ployees for those losses, if any, that they suffered as
a result of these unilateral changes, with interest as
prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987).8
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Mount
Hope Trucking Company, Inc., Wharton, New Jersey,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Rescind the unilateral wage increase granted
the unit employees in March 1992, as well as the Au-
gust 1992 change in health insurance carriers if the
Union so requests.’’
2. Insert the following as paragraph 2(b), and reletter
the subsequent paragraphs accordingly.
‘‘(b) Make whole the unit employees for those
losses, if any, that they suffered because of the 1992
unilateral changes in wages and health insurance car-
riers, with interest as provided for in the remedy sec-
tion of this Decision and Order.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
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 or-
dered us to post and abide by this notice.
WE WILL NOT make changes in your contract with-
out bargaining in good faith with Local 560, Inter-
national Brotherhood of Teamsters, AFL–CIO (the
Union).
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL rescind the unilateral wage increase grant-
ed the unit employees in March 1992, as well as the
August 1992 change in health insurance carriers, if the
Union so requests.
WE WILL make whole the unit employees for those
losses, if any, that they suffered because of the 1992
unilateral changes in wages and health insurance car-
riers, with interest.
WE WILL notify the Union in writing that we are
willing to bargain collectively with it for a renewal
contract.
MOUNT HOPE TRUCKING COMPANY,
INC.
Julie Kaufman, Esq. and Gregory Alvarez, Esq., for the Gen-
eral Counsel.
Ernest R. Stolzer, Esq. (Rains & Pogrebin, P.C.), of Min-
eola, New York, for Mount Hope Trucking Company, Inc.
Paul Montalbano, Esq. (Schneider, Cohen, Solomon, Leder
& Montalbano), of Cranford, New Jersey, for Local 560,
International Brotherhood of Teamsters, AFL–CIO.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint alleges that the Respondent, Mount Hope Trucking
Company, Inc., has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act) by having changed the terms and
conditions of employment, including wage rates and health
insurance coverage, of its drivers without having bargained
collectively thereon with their exclusive representative there-
for, the Union, Local 560, International Brotherhood of
Teamsters, AFL–CIO. The Respondent denies having bar-
gained in bad faith.
I heard this case in Newark, New Jersey, on January 13,
1993. At the close of the hearing, the General Counsel
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 One of three tentative agreements reached after September 1,
1991, adopted the ‘‘current company medical and dental plan’’; the
other two would have substituted, for that plan, the ‘‘Union Welfare
Plan’’ in 1992.
2 General Counsel, over the Respondent’s objection, sought to
admit into evidence a hearsay statement that Messina made to Diaz
just after that telephone conversation ended. According to Diaz,
Messina said to him then that ‘‘[Carballal is] not going back to the
table.’’ General Counsel contends that this statement is admissible
under Rule 803(1) of the Federal Rules of Evidence as a present
sense impression. There is no allegation or contention that the Re-
spondent has refused to meet with the Union. The hearsay statement
has no direct relevance to the issues before me and, in any event,
is of little probative value as to the resolution of those issues. In that
regard, cf. T.L.C. of St. Petersburg, 307 NLRB 605 (1992).
3 The General Counsel’s brief asserts that the Respondent’s imple-
mentation of the October 15 memorandum of agreement constituted
an unlawful change in the health care provisions contained in the
December 17 memorandum of agreement. Suffice it to note that the
Union rejected the December 17 memorandum too. The General
Counsel’s brief asserted that the Respondent’s plan is better than the
Union’s. The Union has not conceded that point.
moved to amend the complaint to allege that the Respondent,
in violation of Section 8(a)(1) and (5), bargained directly
with its employees, bypassing the Union, respecting those
changes. The Respondent opposed the motion. My ruling
thereon appears below.
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION–LABOR ORGANIZATION
The Respondent, a New Jersey corporation with its facility
in Wharton, New Jersey, transports rock and gravel to con-
struction sites. It annually derives more than $50,000 for
transporting this material to sites outside New Jersey.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Union represents a unit of approximately 100 drivers
employed by the Respondent. Its last collective-bargaining
agreement with the Respondent for this unit was effective
from September 1, 1988, to August 31, 1991. This agreement
stated, inter alia, that the Respondent will maintain all condi-
tions of employment in effect as of the signing of that agree-
ment except those which are improved by the express terms
of the agreement. The record discloses that the Respondent,
on September 1, 1988, had its own health care plan, not the
union plan, in effect;1 the agreement did not make any ref-
erence to it. Thus, the Respondent’s plan continued in effect
throughout the term of the 1988–1991 agreement.
On September 30, 1991, the Respondent’s president, Rob-
ert Carballal, and representatives of the Union signed a
memorandum of agreement whereby the 1988–1991 agree-
ment was extended for 3 years except for the changes, in-
cluding wage increases, noted in the memorandum. One of
changes was that the ‘‘Union Welfare will replace Company
Plan.’’ That memorandum, as was true of two later memo-
randums, was subject to ratification not only by the unit em-
ployees but also, separately, by the Union’s executive board.
The unit employees rejected the agreement.
On October 15, 1991, a second tentative agreement was
reached. It provided for, inter alia, the continuation of the
‘‘Company medical and dental plan’’ throughout the pro-
posed 3-year contract. The unit employees ratified this agree-
ment; however, the Union’s trustees rejected it.
The parties resumed bargaining and on December 17,
1991, a third memorandum of understanding was signed.
This one provided for the substitution of the union welfare
plan for the company plan as of January 1, 1992. The drivers
rejected that agreement.
A union business agent, Richard Diaz, testified that he was
present when Fred Messina, who was then the business agent
dealing with the Respondent, telephoned Carballal on De-
cember 23, 1991. Diaz testified credibly that he heard
Messina ask to speak with Carballal, that Messina then said
that the employees rejected the December 17 agreement, and
that Messina twice stated that bargaining should resume.2
On February 1992, Diaz was designated by the Union to
replace Messina in servicing the unit of the Respondent’s
drivers. Diaz and Carballal were then negotiating a contract
for employees of another company which occupied the same
premises used by the Respondent.
On March 23, 1992, Carballal sent Diaz a letter, with
which was enclosed a copy of the October 15, 1991 memo-
randum of understanding. Carballal stated, in his letter, that
the enclosure ‘‘reflects the terms of the new contract as (he
understands) them.’’ That memorandum, as noted above, pro-
vided, inter alia, that the unit employees would continue to
be covered by the ‘‘Company medical and dental plan.’’
Diaz called Carballal on receiving the March 23 letter, told
him that his proposal was not accepted and that the Union
wanted to return to the bargaining table. Carballal said that
he felt it was a fair offer, that there would be no more bar-
gaining and, in essence, that the Respondent was then putting
the terms of that agreement into effect.
The Respondent contends that it was justified in its imple-
mentation of the salary changes as set out in the October 15
memorandum because the Union did nothing to pursue nego-
tiations after the employees rejected the December 17 memo-
randum of agreement, because the Union had rejected three
agreements, because labor place was essential as the con-
struction season was just beginning and because its employ-
ees were demanding it.
The unilateral implementation of the increases in the
wages and certain other benefits of the unit employees, vio-
lates the duty to bargain collectively as defined in the Act.
See Outboard Marine Corp., 307 NLRB 1333 (1992);
Wightman Center, 301 NLRB 573 (1991). In view of the ob-
servation above, that there was no change in the health bene-
fits plan in the expired contract in that the one set out in the
October 15 memorandum, which the Respondent continued
to implement, is the same as in the expired contract, there
is no merit to the complaint allegation of a unilateral change
in health care benefits.3
In August 1992, the Respondent changed its health plan
insurance carrier and put into effect a different health plan
for its unit employees. This was done without affording the
Union the opportunity to negotiate about the change. This
265MOUNT HOPE TRUCKING CO.
4 Nor would I be disposed to find merit as to the alleged direct
dealing, were this motion granted. The test therefor is whether the
direct communication contains proposals or ideas which were not
first submitted to the Union at the bargaining table. United Tech-
nologies Corp., 274 NLRB 1069, 1074 (1988). The matter the driv-
ers discussed with Carballal, i.e., the wage increase clearly was one
that had been submitted to the Union.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
unilateral change was made in derogation of the Respond-
ent’s duty to bargain collectively.
There remains for consideration the motion by General
Counsel to amend the complaint to allege that the Respond-
ent bargained directly with its drivers, bypassing the Union,
and thereby engaged in an unfair labor practice within the
meaning of Section 8(a)(1) and (5) of the Act. The motion
was made just before the hearing closed. The Respondent ob-
jected. I reserved ruling pending receipt of briefs. General
Counsel’s brief states that the issue had been fully litigated,
and that the evidence warrants a finding of unlawful direct
dealing.
As noted above, the Respondent has contended that it im-
plemented the contract changes, as set out in the October 15
memorandum, in good faith and not to undermine the
Union’s status as bargaining representative. In pursuing that
contention, its president, Carballal, testified that he had
reached an accord with the Union’s business agent on three
separate occasions and each time, the agreement was not rati-
fied. He testified that in early March 1992, he happened to
be near one of the Respondent’s asphalt plants where about
10 drivers, including the shop steward, were waiting for their
trucks to be loaded. In the conversation he had with them
then, they expressed concern that they had no contract and
they indicated that they wanted the changes as set out in the
October 15 memorandum. That was the only one of the three
memorandums of agreements that the drivers had ratified.
Carballal testified that it was then that he made the decision
to put the October 15 changes into effect. There is no con-
tention that the Respondent dealt directly with its employees
as to the August 1992 insurance changes.
During his cross-examination, the General Counsel ad-
duced from Carballal affirmative responses to questions ask-
ing if he had his administrators talk with the drivers from
time to time to find out what they wanted and asking, as an
example, if he would stop his car to talk with a group of
drivers to find out what they wanted. When asked, however,
if he had ‘‘agreed’’ to give them the changes they wanted,
he answered that he did not agree to anything but that he
‘‘implemented’’ the changes.
I cannot find that the issue of alleged unlawful direct deal-
ing was fairly or fully litigated. The record evidence thereon
is that about 10 of the 100 drivers told Carballal one day that
they wanted a contract, that they told him they wanted the
only agreement they ratified, and that Carballal had in-
structed his supervisors to communicate with the drivers to
keep them happy.
For a violation to be found on an issue not alleged in the
complaint it must have been fairly and fully litigated at the
hearing. Wayside Realty Group, 281 NLRB 357 (1986). It is
obvious from the record that the Respondent did not have
fair notice, during the course of the questions put to
Carballal, that the matter of unlawful direct dealing was
being inquired into or that the inquiries might lead to a mo-
tion to amend the complaint. Nor can it be said that the
record fully presents the specific facts as to the issue itself.
Thus, while Carballal’s responses admit to discussions with
the drivers as to contract terms which possibly could support
a prima facie finding of a violation, it may well be that the
Union’s steward initiated the discussion, asking Carballal for
a wage increase. If the latter, it is doubtful if the direct deal-
ing allegation would have merit. As the issue involved was
not fairly and fully litigated, I deny the motion to amend.4
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization as defined in Section
2(5) of the Act.
3. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act by
having changed the wages, terms, and conditions of its driv-
ers without having bargained collectively thereon with the
Union as their exclusive representative for such purposes.
4. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
5. The General Counsel’s motion to amend the complaint
to allege direct dealing with employees is denied as the issue
was not fairly and fully litigated.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it is necessary to order the Respondent
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
The unilateral contract changes implemented by the Re-
spondent in 1992 do not appear to have caused losses to any
of the unit employees. Should losses attributable to these
changes be discovered during the compliance phase of this
case, they can be pursued at that stage, with appropriate in-
terest thereon.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Mount Hope Trucking Company, Inc.,
Wharton, New Jersey, its officers, agents, representatives,
and assigns, shall
1. Cease and desist from
(a) Changing any of the wages, hours, or other conditions
of employment of its drivers without bargaining thereon in
good faith with Local 560, International Brotherhood of
Teamsters, AFL–CIO (the Union).
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the unilateral contract changes implemented in
1992 if the Union so requests.
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(b) Notify the Union in writing that it is willing to bargain
collectively with the Union for a renewal collective-bargain-
ing agreement.
(c) Post at its facility in Wharton, New Jersey, copies of
the attached notice marked ‘‘Appendix.’’6 Copies of the no-
tice on forms provided by the Regional Director for Region
22, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
on receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.