New York-Keansburg-Long Branch Buc Co., Inc.

National Labor Relations Board - Board Decisions

Apr 5, 1977

228 N.L.R.B. 1172 (N.L.R.B. 1977)

1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York-Keansburg-Long Branch Bus Co ., Inc. and
Highway & Local Motor Freight Drivers, Dock-
men & Helpers , Local Union No. 701 , Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America . Cases 22-CA-
6461 and 22-CA-6686
April 5, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On October 20, 1976, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed a brief in opposition to the exceptions
filed by the Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby order that the Respondent, New York-Keans-
burg-Long Branch Bus Co., Inc., Leonardo, New
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (CA 3, 1951) We have
carefully examined the record and find no basis for reversing his findings
2 The Administrative Law Judge found that two provisions in the
contract were illegal and should be deleted from the contract . The first
provision restricted the sale or transfer of all or part of the Respondent's
assets This he found to be in violation of Sec 8(e) of the Act . The second
provision gave stewards supersenionty for all purposes , and this he found to
be unlawful under the Board's holding in Dairylea Cooperative Inc, 219
NLRB 656 (1975), Member Fanning dissenting. In the absence of
exceptions thereto, we adopt , pro forma, the Administrative Law Judge's
findings in this regard.
Jersey, its officers, agents, successors, and assigns,
,shall take the action set forth in the said recommend-
ied Order.
DECISION
STATEMENT OF THE CASE
BERNARD NESS, Administrative Law Judge: Upon
charges filed on June 26 and November 14, 1975, by
Highway & Local Motor Freight Drivers, Dockmen &
Helpers, Local Union No. 701, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, a complaint dated
December 23, 1975, was duly issued alleging that New
York-Keansburg-Long Branch Bus. Co., Inc., herein called
Respondent , has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1), (3), and (5)
of the National Labor Relations Act, as amended, herein
called the Act. Respondent's answer denied the commis-
sion of any unfair labor practices. A hearing in this
proceeding was held at Newark, New Jersey, on March 15
through 17 and April 12 through 14, 1976.
Upon the entire record,' including my observation of the
witnesses, and after due consideration of the briefs filed by
the parties, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a New Jersey corporation, with its principal
office and place of business at State Highway No. 36,
Leonardo, New Jersey, herein called the Leonardo termi-
nal, is engaged at said terminal in the business of providing
and performing transportation services and related servic-
es. In the course and conduct of Respondent's business
operations during the 12 months preceding the issuance of
the complaint, said operations being representative of its
operations at all times material herein, Respondent had
gross revenue in excess of $250,000, and during the same
period of time, Respondent caused to be purchased,
transferred, and delivered to its Leonardo terminal, goods
and materials valued in excess of $50,000, of which, goods
and materials valued in excess of $50,000, were transported
to said Leonardo terminal in interstate commerce directly
from States of the United States other than the State of
New Jersey. The complaint alleges, the answer admits, and
I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
i Respondent's unopposed motion to correct the transcript is hereby
granted
228 NLRB No. 161
NEW YORK-KEANSBURG-LONG BRANCH BUS CO. 1173
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I fmd
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that following negotiations which
began in July 1973, the parties reached agreement in
December 1974 on terms of a new collective-bargaining
contract; since February 1975, Respondent repudiated the
contract by ceasing to make pension and welfare payments
pursuant to the contract; since April 28, 1975, Respondent
refused to sign the contract. The complaint further alleges
that Respondent bargained directly and individually with
the employees in March and May 1975, with respect to
pension and welfare benefits. The complaint further alleges
that the strike of employees, which commenced on June 19,
1975, was an unfair labor practice strike and upon their
unconditional offer to return to work, Respondent unlaw-
fully refused to reinstate them since October 16, 1975.
Respondent's principal defense is that at no time was a
mutuality of assent reached upon a total and final
agreement. Respondent further contends that even if the
parties had agreed to the terms to be embodied in the
contract, no agreement had been reached on language of
an addendum whereby the Union agreed not to seek to
represent part-time employees. A further contention is that
the contract allegedly agreed upon contained unlawful
provisions. Respondent also argues that the complaint is
time-barred by Section 10(b) of the Act. Respondent
further argues that the strike was not based on unfair labor
practices and that no unconditional offer to return to work
had been made. Finally, Respondent argues it did not
bargain individually with the employees.
B. Introduction
Respondent is an interstate carrier providing bus service
from its Leonardo, New Jersey, terminal to the Port
Authority Building in New York City. It is also engaged in
extensive charter operations. The present ownership began
in 1969. For a number of years the Union has been the
bargaining representative of Respondent's full-tune drivers.
The parties agree and I find the appropriate bargaining
unit to be as follows: All full-time drivers employed at
Respondent's Leonardo terminal, but excluding all office
clerical employees, professional employees, guards and
supervisors as defined in the Act and all other employees.
Part-time drivers have not been included in the bargaining
unit. The most recent collective-bargaining contract be-
tween the parties covered a period from September 1969 to
September 1973. Negotiations on a new contract com-
menced in July 1973. Respondent's negotiator was Thomas
J. Rossiter, vice president and general manager. The
principal negotiator for the Union was Martin McDermott,
the Union's secretary-treasurer.
To better understand the issues involved, a brief
explanation of the operations is appropriate. The full-time
busdrivers are listed on the seniority board and have the
right to select their scheduled routes known as runs at least
four times per year during a general pick. The runs which
operate on a daily basis, 5 days a week, are listed on the
regular work board. Picked runs are runs listed on the
regular work board. The regular work board is composed
of line runs, two back-to-back round trips from the starting
point in southern New Jersey to New York City. Split runs
are commuter runs operating to New York City in the
morning and returning to southern New Jersey in the
afternoon. The extra work board is composed of all work
not listed on the regular work board, such as charters, one-
way movements known as trippers and single round trips.
The employees on the seniority board have the right to
work exclusively from the extra board. They may elect to
give up their assigned routes to perform specific work on
the extra work board. This is known as bidding off. In
addition to the full-time drivers, Respondent also employs
part-time drivers. They are not included in the bargaining
unit and do not derive any benefits under the collective-
bargaining contract, including pension and welfare cover-
age. They have no access to the regular work board unless
full-time drivers are unavailable. They have access to the
extra work board after the bargaining unit employees have
chosen what work they prefer by a stated time each
afternoon. They have no option to choose the work they
desire. In 1969, there were 52 employees in the bargaining
unit employed as full-time drivers. Respondent had
maintained a seniority list (full-time drivers) at least equal
to the number of the posted runs on the regular work board
plus four or five men above that number to work the extra
board. By September 1973, when the most recent contract
expired, the number of employees in the bargaining unit
was down to 38. The decline was caused in part by business
reasons - a decrease in the number of riders. The decline
was also based on attrition. Thus, when a full-time driver
quit or was discharged, a replacement was not hired and
the run on the regular work board was eliminated. The run
then sometimes appeared as a tripper, a one-way move-
ment, rather than a line run or split run. Thus, work which
had been performed by the bargaining unit employees was
being performed by part-time employees. In substance, the
work on the regular work board determined the number of
employees in the bargaining unit. The guaranteed number
of employees on the regular work board was a principal
issue between the parties.
From the inception of the negotiations the Union sought
to increase the composition of the bargaining unit consist-
ing of regular drivers. Initially it sought a shortened
probationary period whereby more part-time drivers would
then be brought into the unit. It then sought a guaranteed
work board. The work board and the starting and
termination points for line runs were the principal issues. A
strike commenced in September 1973 and was terminated
following a negotiation meeting held on January 14, 1974,
and the employees returned to work. The parties agreed
that an understanding was reached at that meeting but
disagreed as to what the terms were. Thereafter further
negotiation meetings were held but no contract has yet
been executed. The employees then struck again on June
19, 1975. At the time of the hearing a substantial number of
employees have not been reinstated. Respondent argues
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were economic strikers, an offer to return to work
made by the Union was not unconditional, and employees
for whom work was available have been recalled.
C. The Negotiations
Contract negotiations for a new contract began on July
31, 1973. About 12 meetings were held up to the time the
contract expired in September. The Union initially wanted
to shorten the probationary period for drivers, the purpose
being to bring in to the bargaining unit more of the part-
time drivers. Respondent objected to the increase in the
number of regular drivers, principally because it meant
more contributions to the pension and welfare fund. The
Union then dropped its demand for a shortened probation-
ary period and requested a minimum of 48 full-time
employees on the seniority board. By guaranteeing a
specific number on the work board, Respondent would
have had to hire replacements for such employees who left
their employment. Respondent wanted to maintain the
status quo. Under the 1969-73 contract there was no
contractual requirement for a number of employees on the
extra board. The contract provided that the Company may
maintain an extra board consisting of five men above the
number of picked runs. (Sec. 8 , art. XIII.) Failing to
achieve agreement on a new contract, the Union struck on
September 29, 1973. At the time of the strike there were 38
men on the work board - 35 active drivers, 2 on sick leave,
and I whose discharge was being arbitrated.2 The signifi-
cant meeting between the parties was held on January 14,
1974. Both chief negotiators, Rossiter for Respondent and
McDermott for the Union, testified that an agreement was
reached but their testimony differed as to what was agreed
upon. At an earlier meeting, Rossiter had made counter-
proposals on the work board but these were rejected by the
membership on December 19, 1973, and January 8, 1974.
The Union during this period had been demanding a
minimum of 35 men on the work board, and/or 3 men
above the number of posted runs whichever was greater.
Thus, if there came a time when there were more than 35
posted runs, the seniority board would show that greater
number plus 3 to work the extra board.
We now turn to the January 14, 1974, meeting.
Representing the Union were McDermott and the bargain-
ing committee except for Richard. At this meeting, Rossiter
announced that Respondent intended to resume operation
of the busmess.3 McDermott testified that at this meeting
Rossiter agreed to the guaranteed 35-man work board
and/or 3 men above the number of picked runs , whichever
was greater.4 Rossiter denied that he agreed to the Union's
proposal. He testified he initially offered to guarantee that
2 Respondent did not have to supply work to all 35 drivers at any given
time The only requirement was that Respondent had to offer work to the
regular drivers before it could utilize part-time employees and thus its labor
costs would be increased because of its contributions for regular drivers to
the pension and welfare fund
9 The buses had not been running since the inception of the strike on
September 29, 1973
4 McDermott 's account of this meeting was corroborated by committee-
men Rencoukos and Schnehofer
5 Corroborated by Mackel, a member of the bargaining committee who
has since returned to work There were 28 picked runs at the time
6 Corroborated by Richards to the extent that he was present with
McDermott and heard McDermott list the points I do not credit Rossiter's
the unit would not drop below the number of picked runs
plus one. He testified that the parties finally agreed that the
number would be equivalent to the number of picked runs
plus three with his guarantee that he would take back all
the strikers that wanted to return.5 It was understood by
the parties that the agreement was subject to ratification by
the union membership and they agreed the contract would
be signed by March 1. Respondent was to print the
contract. At the insistence of Rossiter, McDermott earlier
in the negotiations had agreed to a waiver to the effect that
the Union would not seek to represent the part-time
employees during the life of the contract. This was
confirmed at the January 14 meeting. Earlier in the
negotiations Rossiter had asked that the waiver be made
part of the contract. McDermott had rejected the demand
that it be made part of the contract but agreed to furnish a
letter signed by him.
On January 15, 1974, the union membership ratified the
"agreement ." With respect to the number on the work
board, they voted on the Union's proposal, believing this
was what Rossiter had agreed to. Immediately prior to the
meeting, McDermott called Rossiter and read off the
points agreed upon at the January 14 meeting, including
the Union's proposal on the work board. Rossiter con-
firmed the understanding .6 After the ratification vote,
McDermott notified Rossiter of the acceptance. The strike
was terminated and the employees returned to work.
I find that at the negotiation meeting on January 14, the
parties agreed to contract terms and there was a meeting of
the minds.? There was no misunderstanding of what had
been agreed upon. The outstanding issues were resolved
and Rossiter accepted the Union's 35 plus 3 work board
proposal.8 I was not impressed with Mackel's testimony
presented to buttress Rossiter's version of the January 14
meeting. On the other hand, McDermott appeared con-
vincing and reliable in relating his account of what had
occurred at the January 14 meeting and of his telephone
conversation with Rossiter immediately preceding the
ratification vote on January 15, supported as he was by the
testimony of Rencoukas, Schriehofer, and Richard.
In latter February 1974,8 Rossiter met with McDermott,
Richard, and the bargaining committee in his office. He
distributed copies of the old contract with some of the
economic changes agreed to in the negotiations. (G.C. Exh.
4). Not all the changes agreed upon were included and
Rossiter conceded there were a number of errors. He
testified the purpose of the meeting was to finalize and sign
the contract - he thought the parties had a final
agreement. As the participant started going over the
contract, the issue of the guaranteed work board was raised
denial that these points were raised by McDermott He testified that
McDermott called and wanted 10 days retroactive pay to which he agreed
and they discussed setting up a Newark bus substitute for a deadhead.
7 As described below, and contrary to Respondent 's position , the parties
had earlier in the negotiations agreed to the Union's proposal concerning
line runs
8 Richard credibly testified that after he became steward in April 1974,
he had a number of discussions with Rossiter about putting on additional
full-time drivers to maintain a minimum 35 -man work board . Rossiter kept
asking for more time, citing the Company 's poor economic conditions
Rossiter finally promised to fill the work board by January 1975.
9 Rossiter testified he thought this meeting was in late March or early
April.
NEW YORK-KEANSBURG-LONG BRANCH BUS CO. 1175
by the Union claiming that the 35-plus-3 work board
agreed upon by the parties at the January 14 meeting was
not included. McDermott and Richard both credibly
testified Rossiter said this was an error and he would have
an addendum prepared which could be attached and made
part of the contract.10 The Union also said there was no
reference in the contract concerning the Leonardo-to-
Leonardo run.ii Rossiter strongly denied he ever agreed to
the terminology. McDermott testified agreement had been
reached on this issue in September 1973 before the
employees went out on strike.12 I do not credit Rossiter's
denial that language was agreed to fixing Leonardo as the
starting and termination points. He testified that the Union
had dropped its proposal early in the negotiations. Before
the meeting ended, Rossiter presented a letter prepared by
Respondent's counsel13 which, in substance, stated the
Union would not seek representation of the part-time
employees during the contract term and that such letter
would be incorporated in the contract. According to
Rossiter, he asked McDermott to sign the letter, who then
expressed criticism of the counsel's draftsmanship and
refused to sign the letter. McDermott then put the letter in
his bnefcase.14 McDermott testified he did refuse to sign
the letter and criticized the legal terminology of the letter.
He credibly testified he told Rossiter he would prepare the
waiver letter on union stationery15 and send it to Rossiter
when the contract was signed and Rossiter was not averse
to this procedure. The meeting ended with the understand-
ing that the Union would further examine the contract and
make the necessary corrections preparatory for the next
meeting.
Sometime in May, McDermott and Richard16 met with
Rossiter in the latter's office. In the meantime, the Union
had further examined the contract distributed to them by
Rossiter at the earlier meeting. According to McDermott
and Richard, Rossiter agreed to the corrections brought up
by them except for the Leonardo-to-Leonardo issue.
Rossiter again agreed to provide an addendum containing
the guaranteed work board to be inserted as part of the
contract. But once again, Rossiter strongly denied that he
ever agreed to the Leonardo-to-Leonardo language con-
cerning line runs.
In a letter dated October 8, 1974, McDermott informed
Rossiter he understood total agreement had been reached
on a contract except for language pertaining to the line
runs . The letter described the specific language of each
party's line run proposal.17 McDermott stated he would
have his attorney review the language. In the meantime,
Richard had been meeting with Rossiter in an effort to
resolve the dispute over the definition of line runs. Rossiter
kept reassuring the bargaining committee he would
10 I do not credit Rossiter's version that when the 35-man board was
raised by the Union he told McDermott he had not agreed to it and the issue
was left hanging.
11 Respondent's terminal is located in Leonardo, New Jersey. Line runs
traditionally have been back-to-back taps between Leonardo and New
York Long Branch is located about 15 miles south of Leonardo. Under the
1969-73 contract, if a driver on the return trip was to go to Long Branch and
then return to Leonardo, he would receive extra compensation. However the
Union early in the negotiations had sought to clarify this procedure by
demanding that line runs be defined in the contract as beginning and ending
in Leonardo
12 Corroborated by committeemen Rencoukos, Schnehofer, and Rich-
ard.
continue to operate the line runs as in the past. In
November 1974, Richard wrote to McDermott and
referred to a meeting he had with Rossiter on November 8.
Richard related that the drivers were satisfied with
Rossiter's explanation of Respondent's proposed language
concerning the line runs. Richard ended the letter by
requesting McDermott to accept Respondent's proposed
language "and consider the contract complete." 18
In December 1974, Richard and McDermott met with
Rossiter to discuss a grievance. During this meeting
McDermott informed Rossiter the Union would drop its
Leonardo-to-Leonardo proposal and would accept Re-
spondent's language relating to line runs . McDermott told
Rossiter to print up the contract and give the copies to
Richard. Later that month, Rossiter gave several copies of
the "agreement" to Richard.19 Rossiter testified this
contract reflected the total understanding of the parties
except for the waiver letter still to be forthcoming from the
Union. According to Rossiter, he understood that the
waiver letter would be executed by McDermott at or before
the execution of the contract 20 McDermott and Richard
testified that the contract did contain all that was agreed
upon except that again it did not contain the addendum
pertaining to the guaranteed work board. Richard sent
copies of the contract to McDermott informing him that
the addendum was missing.
In April 1975 , Rossiter met again with McDermott and
Richard. Rossiter said he had asked Richard to set up the
meeting to discuss Respondent's financial difficulties and
consideration of an alternate pension and welfare plan
which will be discussed more fully below. Rossiter testified
that this subject matter was discussed at the meeting with
McDermott and Richard and it was at the end of the
meeting McDermott inquired whether he had prepared the
contract. Rossiter replied he had given copies to Richard in
December and the only thing lacking was the Union's
waiver letter. According to Rossiter, McDermott then
asked Richard if he got the contract and Richard replied he
had and was waiting for McDermott to set up a meeting.
Rossiter testified McDermott didn't respond to his inquiry
about the waiver letter and the meeting broke up. Richard
testified that prior to the meeting Rossiter had discussed
with him Respondent's financial difficulties. He testified he
set up the meeting for the purpose of disposing of the
contract but had told Rossiter he would bring up
Respondent's difficulties to McDermott at the forthcoming
meeting. Richard testified there was such discussion at the
meeting. Both Richard and McDermott testified that
Rossiter was told the addendum pertaining to the 35-man
work board was still lacking. Rossiter said he would send it
to McDermott and then inquired about the Union's waiver
13 Resp. Exh 9.
14 Corroborated by Mackel except that Mackel testified McDermott
returned the letter to Rossiter.
15 Rossiter's testimony in this regard does not reveal McDermott made
such offer.
16 Richard became the Union steward in April.
17 G.C Exh 11
18 GC Exh7
19 G C. Exh 8
20 Rossiter then admitted his understanding was based on an assumption
on his part
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter . McDermott replied he would send it. McDermott
and Richard testified that Rossiter agreed to the following
sequence: McDermott would retain the copies of the
agreement , Rossiter would send the addendum to McDer-
mott who would then sign the agreement, Rossiter would
then sign the contract and when McDermott received the
fully executed contract, he would give Rossiter the waiver
letter. I credit Richard and McDermott. I cannot accept
Rossiter's testimony that McDermott appeared unaware
that Rossiter had sent the proposed contract to Richard.
For Richard had sent the copies to McDermott and
informed McDermott the addendum was missing . Equally
unconvincing is Rossiter's testimony that McDermott was
silent about the waiver letter. Richard particularly im-
pressed me not only as an honest witness , but also as
having a good memory concerning the details of the
meeting. I am disposed to credit his testimony in those
particulars where it conflicts with the testimony of
Rossiter. This was the last negotiation meeting and none of
the steps above described has been taken. The parties
stipulated that all economic terms of the "agreement" were
put into effect.
D. The Alleged Direct Bargaining With the
Employees
The General Counsel has alleged that during March and
May 1975, Respondent bargained directly with the em-
ployees concerning pension and health insurance benefits
in violation of Section 8(a)(5) and (1) of the Act.
Sometime in February or March 1975, Rossiter called a
meeting of the drivers to present safety awards. During the
meeting he announced that the Company's touring agent
was leaving Respondent and with a resulting loss of charter
business, Respondent would suffer financially. He request-
ed the drivers to attempt to solicit charter business. He
mentioned that if this business was not regained there
could be layoffs, the Company might be sold or even go
into bankruptcy. One of the drivers then announced that
Rossiter had a suggestion to make. Rossiter then said that
with the loss of charter business and the cost factor of the
union welfare and pension funds, Respondent was in
serious financial straits. He said that one way to improve
the financial picture was to consider private health,
welfare, and pension programs with similar benefits at a
much reduced cost to the employees. Rossiter told the
employees if the men agreed to an alternate plan it would
improve the Company's financial situation otherwise the
employees might find themselves looking for jobs 21 After
the meeting, Rossiter brought up the subject with Richard
and asked him to listen to what representatives of the
private plans had to offer. Richard reported Rossiter's
request to McDermott who told Richard he was free to
listen to the insurance representatives. In April, Richard,
together with another driver and Rossiter, met with
insurance company representatives who explained the
21 Rossiter testified he had invited McDermott to be present at the
meeting through Richard However his testimony does not reveal that he
told Richard he intended to discuss the plans The purpose of the meeting
was to present the safety awards.
22 Respondent's last payment to the fund was in February for the month
of January No payments have been made since then
benefits and advantages of their company 's plan as
compared to the Union 's. At the April meeting referred to
above between Rossiter , Richard, and McDermott, Rich-
ard informed McDermott of his earlier discussion with
Rossiter . Rossiter then told McDermott of the Company's
inability to meet the payments to the union fund.22
Rossiter raised the possibility of changing to an alternate
private plan and McDermott pointed out he couldn 't speak
for the trustees of the fund . There was also a discussion
about an audit of Respondent's financial records . Rossiter
said he would have to check with the principal owner of
Respondent.23
In May 1975, Rossiter held another meeting of the
employees .24 Representatives of an insurance company
addressed the drivers and explained the benefits of their
plan as compared to the Union 's. At the end of the
meeting, Rossiter said he believed the plan presented was
better than the one with the Union and the cost to the
Company would be substantially less. Rossiter said if
nothing was done soon , the employees would probably be
looking for other jobs . One of the employees then asked
Rossiter if the Union would "dump" them in the event the
employees decided to accept the alternate plan. Rossiter
replied he didn't think so, pointing out that , at another
company where the employees were represented by the
Union , the Union's plan was not operative.
E. The Offer To Return To Work
The Employees struck on June 19, 1975. It is undisputed
the strike was called because of Respondent 's failure to
make its payments into the Union 's health , welfare, and
pension funds . In an exchange of letters between counsel
for Respondent and the Union , an unconditional offer for
reinstatement of the strikers was made by the Union's
attorney on October 16, 1975. Respondent 's counsel
replied by letter , dated October 22, that he viewed the
strike as an economic one, rather than an unfair labor
practice strike . He stated Respondent would reinstate those
employees who request reinstatement provided jobs were
available and for others for whom no jobs were immediate-
ly available . they would be placed on a recall list. Prior to
this exchange of letters , at least one striking employee,
Mackel , had abandoned the strike and was reinstated.
Analysis and Conclusions
At the January 14, 1974, negotiation meeting, I have
found the parties reached full agreement on the terms of a
new contract. All outstanding issues were resolved at that
meeting. Although Rossiter later complained he had not
agreed to the Union's proposal concerning the 35-plus-3
work board, I have found that Rossiter at this meeting did
agree to the Union's proposal. With respect to the
Leonardo-to-Leonardo line run issue, this point had been
resolved earlier in the negotiations when Rossiter agreed to
the Union's description of a line run. Thus it was no longer
23 Rossiter testified he later got clearance and so advised Richard The
Union never moved to make such audit.
24 A notice had been posted announcing this meeting . Richard had
informed McDermott this meeting was to be held and no objection was
raised by McDermott
NEW YORK-KEANSBURG-LONG BRANCH BUS CO. 1177
an issue when the parties met on January 14 and resolved
their differences. And concerning the waiver by the Union
that it would not represent the part-time employees during
the life of the contract, the Union had rejected Rossiter's
earlier demand that the waiver be incorporated into the
contract. The parties then agreed the Union would submit
such waiver in letter form to Rossiter. Although the specific
language to be included in the waiver was not decided
upon, the clear import of the waiver was understood by the
parties. Thus, on January 14, 1974, the parties reached full
agreement on all the terms of a new contract subject to
ratification by the membership. The ratification was
effected the following day. However there was no docu-
ment prepared which included the terms and conditions
agreed upon. This Rossiter was charged to prepare. As a
quid pro quo to the effectuation of the contract, it was
understood by the parties the Union would execute a
waiver to representing the part-time drivers. It was after the
striking employees ratified the terms of the new agreement
and returned to work that Rossiter then denied he had
agreed to the Union's proposal defining line runs. In
subsequent meetings, Rossiter acknowledged he had
agreed to the 35-man work board but was insistent he had
not agreed to the Union's definition of line runs. It was in
December 1974 that the Union finally dropped its line run
proposal and accepted Respondent's language. Rossiter
then prepared what purported to be the agreement reached
by the parties and gave copies to Richard, who, in turn,
gave them to McDermott. Rossiter's testimony was that
this document (G.C. Exh. 8) reflected the total understand-
ing of the parties and the only remaining consideration was
the Union's waiver letter. Contrary to Rossiter's testimony,
I have credited Richard and McDermott and found that
the agreement prepared by Rossiter did contain the
agreement of the parties for the language pertaining to the
work board; i.e., a minimum of 35 men on the work board
and/or 3 men above the number of posted runs, whichever
was greater. The quid pro quo for the execution and
effectiveness of the contract was the Union's waiver letter
which the Union was prepared to furnish upon execution
of the contract.
The 10(b) Question
At the January 14, 1974, meeting the parties agreed that
the contract agreed upon was to be executed by March 1.
Respondent argues that the 10(b) penod began to run on
the latter date. As an alternative Respondent argues that
the 10(b) penod commenced in May 1974 when the Union
gave its version of the agreement to Respondent.25 I do not
agree that the complaint is time-barred by Section 10(b) of
the Act. While I have found that the parties did reach a full
agreement on January 14, 1974, the parties continued to
negotiate because of Respondent's subsequent contention
it had not agreed on the definition of line runs. When the
Union acquiesced to Respondent's language in December
1974, full accord was reached at that time on the terms of a
new agreement and Respondent was to prepare the
agreement. The Union was furnished copies later in
December. I have found that the agreement (G.C. Exh. 8)
was the complete agreement encompassing the understand-
ing of the parties except that the addendum pertaining to
the work board was not included . When this was brought
to Rossiter's attention in April 1975, it was agreed that
Rossiter would send such addendum to the Union and the
parties would then execute the contract. Under these
circumstances, I find that the 10(b) period began to run in
April 1975 when the parties agreed upon the procedure for
execution of the contract - the first step to be taken by
Rossiter. This he has failed to take. Accordingly, I find that
Respondent's failure to execute the agreement embodying
the terms of the understanding by the parties violated
Section 8(a)(5) and (1) of the Act.
The Alleged Direct Bargaining With the Employees
During the meetings Rossiter held with the employees in
March and May 1975, Rossiter described the financial
hardships the Company was undergoing and pointed out
that one method of alleviating the situation was to
substitute the Union's welfare and pension funds with
alternative private plans. He stated that in absence of such
change, the jobs of the employees were in jeopardy. But the
record also shows that during this period Rossiter was also
appealing to Richard and to McDermott to consider
alternate plans to ease the Company's financial burden.
Although the Union had no advance notice that at the
initial meeting with the employees Rossiter would discuss
this problem with the employees, Richard reported the
event to McDermott who voiced no objection to Rossiter
discussing the matter with the employees. McDermott was
notified in advance of the second meeting to be held with
the employees and again voiced no objections. On the
record before me, I do not find that Rossiter was urging
individuals to deal with Respondent directly in a manner
designed to undercut the Union as the bargaining represen-
tative of the employees. Accordingly, I shall dismiss this
allegation of the complaint.
The Unlawful Contract Clauses
Respondent argues in his brief that two agreed-upon
provisions in the contract described below are unlawful.
These same provisions have been included in the previous
contract between the parties. They were not raised as issues
in the negotiations and both parties had agreed to retain
these same provisions.
Article III, section 1, of General Counsel's Exhibit 8
provides as follows:
Section 1. This Agreement shall be binding upon the
parties hereto, their successors, administrators, execu-
tors and assigns. In the event an entire operation or any
part thereof is sold, leased, transferred, or taken over by
sale, transfer, lease , assignment, receivership or bank-
ruptcy proceeding, such operation' shall continue to be
subject to the terms and conditions of this Agreement
for the life thereof. On the sale, transfer or lease of any
individual run or runs, only the specific provisions of
25 McDermott said it was in or about June
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this contract, excluding supplements or other condi-
tions, shall prevail. It is understood by this Section that
the parties hereto shall not use any leasing device to a
third party to evade this contract. The Employer shall
give notice of the existence of this Agreement to any
purchaser, transferee, lessee , assignee, etc., of the
operation covered by the Agreement or any part
thereof. Such notice shall be in writing with a copy to
the Union at the same time the seller, transferor or
lessor executes a contract of transaction as herein
described.
In the event the Employer fails to give notice herein
required and/or fails to require the purchaser, transfer-
ee or lessee to assume the obligations of this contract,
the Employer shall be liable to the Union and to the
employees covered for all damages sustained as a result
of such failure to require assumption of the terms of
this contract, but shall not be liable after the purchaser,
transferee, or lessee has agreed to assume the obligation
of this contract.
Article XI, section 3, provides as follows:
Section 3. Job Stewards shall be granted supersenior-
ity for all purposes including layoff, rehire, bidding and
job preference. Under no consideration shall he be
discriminated against, including any limitations being
placed upon him in bidding for work, or being
restricted from certain job performance that would
reduce his earning capacity.
The Steward shall be paid the hourly straight time
rate of pay for all time lost in the presentation of all
grievances subject to a maximum of ten (10) hours per
month.
In National Maritime Union of America, AFL-CIO
(Commerce Tankers Corporation), 196 NLRB 1100 (1972),
the Board held that a clause binding the purchaser of a
vessel in the maritime industry violated Section 8(e) of the
Act. The Board carefully pointed out it was not considering
questions concerning the applicability of Section 8(e) to the
sale of capital assets in other industries or in other
circumstances . Both the General Counsel and the Charging
Party rely on the subsequent Board decisions in the
Cascade Employers Association 26 and Harris Truck and
Trailer Sales21 cases . Respondent , on the other hand,
believes these cases distinguishable . In Cascade, the Board
found that the sale or transfer of an entire enterprise is
generally to be viewed not as a business transaction, but as
a substitution of one entity for another with the conduct of
the business continuing without interruption , while the sale
of a vessel in the maritime industry, as was involved in
Commerce Tankers, was not a novel situation, but a fairly
common occurrence in the normal course of "doing
business ." In the Harris case , the Board found that the
"Sale of Physical Assets" clause not to be violative of
Section 8(e) where the sale involved only a portion of the
predecessor 's business but such portion was itself operated
28 International Union of Operating Engineers, Local No 701, AFL-CIO
(Cascade Employers Association, Inc), 221 NLRB 751 (1975).
27 District No 71, International Association of Machinists and Aerospace
Workers, AFL-CIO (Harris Truck and Trailer Sales, Inc), 224 NLRB 100
(1976)
as a separate business enterprise . In the instant case
however, the restriction in this clause applies not only to
the sale or transfer of the entire operation, but to any part
thereof, including the sale, transfer, or lease of any
individual run or runs . Accordingly, in agreement with
Respondent, I find article III, section 1, of the contract
violative of Section 8(e) of the contract.
With respect to the seniority clause, the General Counsel
and the Charging Party concede that the superseniority
clause for stewards is overly broad to the extent that it
grants superseniority "for all purposes." 28 They argue
however that, in addition to granting preference to the
steward for purposes of layoff and recall, the preference to
bidding and the grant of hourly straight time pay for time
lost in presentation of grievances are likewise lawful. In the
Dairylea case, the Board held that superseniority clauses as
applied to stewards which are not limited to layoff and
recall are presumptively unlawful and the burden of
rebutting that presumption rests on the parties asserting
their legality. The General Counsel and the Charging Party
argue that only the phrase "for all purposes" be deleted
from the clause and then the clause would otherwise be
legal. But it is not for me to reconstruct the provision. As
worded, such clause is unlawful and it is for the parties to
bargain concerning a substitute provision. However,
having found these two provisions in the contract to be
unlawful, it should again be emphasized that these clauses
had been in the previous contract and did not become an
issue in the negotiations herein described. Since Respon-
dent's failure to execute the contract was not in any way
predicated on the provisions herein found unlawful, I shall
condition the execution of the contract upon deletion of
such provisions 29
The Status of the Striking Employees
The employees struck on June 19, 1975, because of
Respondent's failure since February to make its payments
into the Union's welfare and pension fund as required by
the collective-bargaining contract. As stated above, at least
one employee, Mackel, was reinstated prior to the Union's
offer for reinstatement of the strikers. It is undisputed that
the employees named in Appendix A of this Decision were
striking employees and Respondent has not reinstated
them. The General Counsel and the Charging Party view
them as unfair labor practice strikers who were unlawfully
refused reinstatement on October 16, 1975. Respondent
contends the strike was economic in nature and the
Union's demand was not unconditional but rather a
demand that Respondent reinstate all the strikers even if it
meant discharging their replacements. I have heretofore
found that full accord was reached by the parties on the
terms of a new collective-bargaining agreement in Decem-
ber 1974. The new collective-bargaining agreement, as well
as the previous one, provided for contributions by
Respondent to the welfare and pension fund, Mid-Jersey
Trucking Industry, Local No. 701, for the purpose of
providing and maintaining welfare and pension benefits for
28 Dairylea Cooperative Inc., 219 NLRB 656 (1975).
29 Tulsa Sheet Metal Works, Inc, 149 NLRB 1487 (1964), Central
Plumbing Company, 198 NLRB 923 (1972)
NEW YORK-KEANSBURG-LONG BRANCH BUS CO.
the employees. I have also found that Respondent violated
Section 8(a)(5) and (1) of the Act by its failure to execute
the agreement embodying the understanding by the parties.
Respondent had informed the Union of its financial
difficulties and sought relief from its obligation to make the
contributions. Although the Union did not challenge
Respondent's contention of financial strain, neither did it
agree to a waiver of Respondent's contractual obligation to
make pension and welfare contributions. Nonetheless,
Respondent failed to make payments from February until
June when the employees struck. Respondent's unilateral
decision to cease making contributions to the fund
constitutes a unilateral midterm modification of the
contract within the meaning of Section 8(d) of the contract.
Such action therefore is violative of Section 8(a)(5) of the
Act. Financial expediency is not a valid defense to such
action.30 Accordingly, since the strike was in protest over
Respondent's unfair labor practices, it is an unfair practice
strike. Under these circumstances, Respondent was obli-
gated to reinstate the strikers upon their unconditional
offer to return even if it necessitated dismissing the striker
replacements. The offer to return to work was made on
October 16 and Respondent refused to reinstate them.
Such refusal to reinstate therefore violated Section 8(a)(1)
and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and in operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time drivers employed at Respondent's
Leonardo terminal , but excluding all office clerical em-
ployees, professorial employees, guards and supervisors as
defined in the Act and all other employees, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
aforesaid appropriate unit within the meaning of Section
9(a) of the Act.
5. By refusing to execute the collective-bargaining
agreement embodying the terms and conditions of employ-
ment on which Respondent and the Union had reached
agreement in December 1974 and by failing and refusing to
make contributions to the welfare and pension fund, Mid-
Jersey Trucking Industry, Local No. 701, as required by
the collective-bargaining agreement with the Union,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
6. By failing to reinstate the employees listed in
Appendix A to their former or equivalent jobs upon the
unconditional request for reinstatement made on October
16, 1975, Respondent has violated Section 8(a)(1) and (3)
of the Act.
1179
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
8. Except for the foregoing, Respondent has committed
no unfair labor practices under the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it cease
and desist therefrom and take affirmative action to remedy
the effects of its illegal conduct.
Respondent, upon request, shall complete the consum-
mation of and give retroactive effect to the contract with
the Union, with the contract embodying the matters agreed
on by the parties including the matter of the guaranteed
work board. The latter section is to be drafted in terms
consistent with the findings in this Decision regarding the
agreement of the parties as to this section of this
agreement . However, nothing in this recommendation is
intended to include in the contract the provisions found in
this Decision to be unlawful. It should be understood that
the execution of the contract by Respondent shall not
become operative unless and until the Union concurrently
submits to Respondent a waiver to represent the part-time
employees during the life of the contract in accordance
with the agreement by the parties. Having found that
Respondent has unlawfully failed to make the contribu-
tions to the welfare and pension fund, I shall recommend
that Respondent be ordered to make such restitution.
Having found that Respondent refused to reinstate the
striking employees named in Appendix A upon the
unconditional application to return to work on October 16,
1975, and that such striking employees were unfair labor
practice strikers, I shall recommend that each such
employee shall be offered immediate and full reinstatement
to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges,
displacing, if necessary, any replacements hired during the
strike. It will also be recommended that Respondent make
whole such striking employees for any loss of pay they may
have suffered as a result of the discrimination against them
by payment to each of them backpay for the period
between the unconditional application to return to work
and such time as they are offered reinstatement. Backpay
shall be computed on a quarterly basis, plus interest at 6
percent per annum, as prescribed in F W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
30 Oak Cliff- Golman Baking Company, 207 NLRB 1063 (1973), enfd 505
F 2d 1302 (C.A 5, 1975), cert denied 423 U.S. 826 (1975).
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER31
The Respondent, New York-Keansburg-Long Branch
Bus Co., Inc., Leonardo, New Jersey, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with the
Union by refusing, upon request, to sign the collective-
bargaining agreement embodying the terms and conditions
of employment on which Respondent and the Union
reached agreement in December 1974, except to the extent
specified in the section of this Decision entitled "The
Remedy."
(b) Failing and refusing to make the contributions to the
welfare and pension fund, Mid-Jersey Trucking Industry,
Local 701, as required by the aforesaid collective-bargain-
ing agreement.
(c) In any other manner failing or refusing to bargain
collectively with the Union as the collective-bargaining
representative of the employees in the appropriate unit.
(d) Discouraging membership in the Union by failing
and refusing to grant reinstatement on the unconditional
offer of unfair labor practice strikers to return to work or in
any other manner discriminating against its employees
with respect to their hire or tenure of employment or any
other term or condition of employment.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request by the Union, execute the collective-
bargaining agreement embodying all the terms and
conditions of employment agreed upon in December 1974,
except for the provisions found to be unlawful. Execution
of the contract by Respondent is subject to the concurrent
submission by the Union of a waiver to represent the part-
time employees during the life of the collective-bargaining
agreement.
(b) Transmit the contributions to the welfare and
pension fund, Mid-Jersey Trucking Industry, Local No.
701, as required by the collective-bargaining agreement.
(c) Offer each of the employees named in Appendix A
immediate and full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and make each whole for any loss of
earnings he may have suffered as a result of the discrimina-
tion against him in the manner set forth in the section of
this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records and reports, and all other records necessary
to analyze and compute the amount of backpay due under
the terms of this Order.
(e) Post at its terminal in Leonardo, New Jersey, and at
all other places where notices to employees are customarily
posted, copies of the attached notice marked "Appendix
B.1132 Copies of said notice, on forms provided by the
Regional Director for Region 22, after being duly signed by
Respondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places , including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps have been taken by Respondent to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found herein.
31 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
32 In the event that the Board's 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."
APPENDIX A
William A. Ayers
Peter Brady
Hudson D. Carhart
Raymond J. Devine
Robert A. Ferry
Nicholas F. Formica
Michael T. Fox
Paul B. Hentz
Peter R. Horback
John Hughes
Raymond L. Kelly
Carl Kowalski
Fred J. Mueller
Charles B. Phillips
Samuel L. Ramey
John J. Richard
Alvin W. Schreihofer
Robert A. Schwing
Harvey H. Smith
Charles G. Uckert
Robert H. Ward
Nicholas F. Yanibelli
Earl Zielstorff
APPENDIX B
NOTICE To EMPLoYEEs
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse, upon request of Highway &
Local Motor Freight Drivers, Dockmen & Helpers,
Local Union No. 701, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, to execute the collective-bargaining agree-
ment embodying all the terms and conditions of
employment agreed upon in December 1974 covering
employees in the bargaining unit described below,
except that said agreement shall not contain the
provisions found to be unlawful. The execution of this
agreement is subject to the concurrent submission by
said Union of a waiver to represent the part-time
employees during the life of the contract as agreed
upon by the parties.
All full-time drivers employed at Respondent's
Leonardo terminal, but excluding all office
clerical employees, professional employees,
NEW YORK-KEANSBURG-LONG BRANCH BUS CO.
guards and supervisors as defined in the Act and
all other employees.
WE WILL NOT fail or refuse to transmit to the welfare
and pension fund, Mid-Jersey Trucking Industry, Local
No. 701, the contributions as required by the collective-
bargaining agreement.
WE WILL NOT in any other manner interfere with the
efforts of said Union to bargain collectively on behalf
of the employees in the appropriate unit.
WE WILL offer to the employees named below
immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to
any seniority or other rights and privileges, and make
them whole for any loss of pay suffered as a result of
the discrimination against them.
William A. Ayers
Peter Brady
Hudson D. Carhart
Raymond J. Devine
Robert A. Ferry
Nicholas F. Formica
Michael T. Fox
Paul B. Hentz
Peter R. Horback
John Hughes
Raymond L. Kelly
Carl Kowalski
Fred J. Mueller
Charles B. Phillips
Samuel L. Ramey
John J. Richard
Alvin W. Schreihofer
Robert A. Schwing
Harvey H. Smith
Charles G. Uckert
Robert H. Ward
Nicholas F. Yanibelli
Earl Zielstorff
NEw YoRK-KEANBuRG-
LONG BRANCH Bus Co.,
INC.
1181