Patsy Trucking, Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1990

297 N.L.R.B. 860 (N.L.R.B. 1990)

860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Patsy Trucking, Inc. and International Union,
United Mine Workers of America, and its Dis-
trict 29. Case 11-CA-12839
March 8, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 5, 1989, Administrative Law Judge
Frank H Itkm issued the attached decision The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering bnef
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, and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Patsy
Trucking, Inc, Bluefield, West Virginia, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order
Jane P North, Esq , for General Counsel
Fred E Holroyd and Thomas L Woohne, Esqs , for the
Respondent
Sam Fragile, Esq , for Charging Party Union
DECISION
FRANK H ITKIN, Administrative Law Judge The
Union filed an unfair labor practice charge in this case
on July 29 and an amended charge on September 7,
1988 A complaint issued on September 12, 1988 Gener-
al Counsel alleges that Respondent Employer, "com-
mencing on or about April 1987 and at all times thereaf-
ter," violated Section 8(a)(5) and (1) of the National
Labor Relations Act by unilaterally altering and modify-
ing the collective-bargaining unit by removing the cen-
tral shop mechanic classification from the unit and by
failing and refusing to deduct and remit union dues and
pension contributions on behalf of central shop mechanic
Richard L Shrader Respondent Employer denies violat-
ing the Act as alleged The principal issues raised are
whether Respondent Employer violated Section 8(a)(5)
and (1) of the Act by unilaterally ceasing to deduct and
remit pension fund payments and union dues on behalf of
mechanic Shrader in accordance with the collective-bar-
gaining contract between the parties and, further, wheth-
er this proceeding is barred by the time limitations of
Section 10(b) of the Act A hearing was held in Blue-
field, West Virginia, on May 9, 1989, and on the entire
record, including my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
Respondent Employer, a trucking company engaged in
the hauling of coal, has facilities in Bluefield, West Vir-
ginia' Respondent Employer signed the National Bitu-
minous Coal Wage Agreement of 1984 and the National
Bituminous Coal Wage Agreement of 1988 (See G C
Exhs 2 and 3) The agreements provide
The production of coal, including removal and
overburden of coal waste, preparation, processing
and cleaning of coal and transportation of coal
(except by waterway or rail not owned by Employ-
er), repair and maintenance work normally performed
at the mine site or at a central shop of the Employer,
and maintenance of gob piles and mine roads, and
work of the type customarily related to all, of the above
shall be performed by classified employees of the Em-
ployer _covered by and in accordance with the terms of
this Agreement [emphasis added]
Clovis Cox testified that he is the owner of Respond-
ent Company, that he signed the above labor contracts
with the Charging Party Union, that in Apnl 1987 he
stopped "remitting Union dues" on behalf of employee
Richard L Shrader, and that he similarly stopped
"making pension contributions and reporting man hours
worked for Shrader " Cox acknowledged that Shrader
was hired by Respondent in 1975, that Shrader then
became a union member, that the Employer deducted
union dues from Shrader's paychecks, that the Employer
"submitted Union dues every month that he [Shrader]
was employed there at Patsy Trucking until April 1987",
and that "Patsy Trucking made pension contributions
during all of that time for the hours worked by Shrader"
"as required by the Union contract" Cox further ac-
knowledged that the Employer is currently providing
health insurance coverage to Shrader as a retiree pursu-
ant to the union contract (See G C Exh 5)
Cox next testified that he did not notify the Union
when he stopped remitting dues on behalf of Shrader in
April 1987 "cause [he] didn't think it was cause to" Cox
generally asserted that "the [Employer's central] shop
has never been considered Union" Cox was unsure
whether the central shop started operating in 1975, how-
ever, he agreed that "mechanics of the central shop
worked on equipment both at the shop and at different
mine sites", that "Shrader was one of those mechanics",
that Shrader "worked at that job until he retired", and
that the Employer, as noted above, remitted dues to the
Union for Shrader and "there might have been one other
one [a mechanic working in the central shop] that we
submitted dues on" Cox was asked whether he assigned
mechanics from the central shop, particularly Shrader,
"to fill temporary vacancies at mine site" Cox responded
that "we could have I'm not sure See also General
Counsel's Exhbit 6, a union panel form for laid-off em-
' Respondent is admittedly an employer engaged in commerce and
Charging Party Union is admittedly a labor organization as alleged As
Clovis Cox, owner of Respondent Employer acknowledged, his Compa-
ny basically furnishes the truck and the driver to haul coal that's
the main purpose of [his] business ", he also has a shop more or less
to support the trucking part of [Ms] business
297 NLRB No 145
PATSY TRUCKING 861
ployees executed by Shrader, the Employer and • the
Union on August 15 1988, stating that Shrader was laid
off by the Employer on August 15, 1988, that his seniori-
ty date at the Employer's mine was 1976, and that he
was a "truck mechanic" at the Employer's shop, and
General Counsel s Exhibit 7, a letter from the Employer
to the UMWA Health and Retirement Funds, dated Oc-
tober 13, 1988, acknowledging that Shrader was em-
ployed by Respondent from June 27, 1975, until August
15, 1988, "as a mechanic"
Cox elsewhere testified that "the shop was never set
up as a Union shop and I don't think the Union really
recognized it as being that", "it's far out from our oper-
ations", "we worked on a lot of different people's equip-
ment", "besides, I never did recognize the Union [for
the] shop" He denied deducting union dues for shop em-
ployees or paying union assessments, that shop employ-
ees were in the Union, that they were paid union scale,
that they had union classifications, that they had union
seniority under the contract, and that the Union ever
picketed his shop or "ever had a conversation to the
effect that they expected shop employees to pay
Union dues" He claimed that when the employees in the
trucking part of his operation vent on strike his shop em-
ployees did not strike Apparently, according to Cox,
only Shrader and one other shop mechanic employee
had union cards because
when they'd go out on jobs, they had to have
those cards before they'd [the union representatives]
let them work on the equipment in the union-
ized mine sites
Cox was asked "why" he had stopped sending dues to
the Union on behalf of Shrader in April 1987, and he re-
sponded
One thing, our job shut down We had several jobs
that was down, so we didn't figure no need since
they wouldn't be going out on jobs any more to be
working on the Union jobs
The Employer then told Shrader that ,"we're going to
quit paying into the man hours and he [Shrader] said
if you're going to do that don't take no Union
dues out on me" Cox insisted that "shop employees are
not covered by the contract", that Shrader was not cov-
ered by the contract when "working in the shop", "but
when he [was] out driving a truck or when he's doing
mechanical work at a Union job site [he was] cov-
ered Nevertheless, as Cox agreed, he had submitted
union dues "every month that Shrader worked for [Re-
spondent] as an employee at the central shop", and there
is no provision in the union contract or in any other doc-
ument upon which he relies for his position that "the
only time I consider them Union was [when] they went
out on our jobs and worked on our equipment" Else-
where, Cox asserted that Shrader wag "was find of a fill-
in driver" and "he drove a truck quite a bit" Cox also
claimed that Shrader "spent more time in the shop" then
"driving a truck" Finally, Cox testified
Q So, it's your testimony that there's only cover-
age [under the Union contract] when they're [the
mechanics are] on a Union job-site and that is the
only responsibility you have to report hours for Is
that correct9
A No, I'm not sure but that's when they
went out, the only time I consider them Union was
[when] they went out on our jobs and worked on
our equipment
Sam Fragile, an executive board member for Charging
Party Union, testified that the Employer, pursuant to its
contract, "withholds dues from an employee's paycheck
and remits the dues on a dues check-off to District 29
monthly," the Union records the dues when received,
General Counsel's Exhibit 8 is the Union's record of
dues received from the Employer for Shrader from 1975
until April 1987, and the Employer made these payments
directly to the Union Fragile added that dues payments
can be "temporarily discontinued" when an "active em-
ployee" is laid off, injured sick, or the "contract ex-
pired", a laid-off, injured, sick or "expired contract" em-
ployee is permitted to remit $1 25 monthly directly to
the Union if he wishes to retain certain privileges, the
Employer, however, does "not notify the Union in any
way of an individual's status per month other than an
active employee that they remit dues on", and the Union
does "not monitor an individual's dues, only the Employ-
er's dues for the whole Company" Fragile explained
, The District only monitors the companies, not
the individuals There's too many employees to
monitor individually At this time there's prob-
ably 3500 active and from 10,000 to 15,000 retired,
laid off and employees off sick and injured It's
impossible to monitor them individually
,
Fragile next testified that Shrader first came to the
Union on June 28 or 29, 1988, complaining that "Patsy
Trucking had stopped remitting Union dues and they
had stopped remitting man hours on him", this was the
"first time" Fragile met Shrader, and Fragile previously
"never became aware of this even though the Company
had stopped paying a year before" Fragile then repeat-
edly complained to the Employer that it was violating
the contract and filed unfair labor practice charges in the
instant case on July 29 as amended on September 7,
1988 2
Richard L Shrader testified that he is now retired,
that he was hired by Respondent Employer as a mechan-
ic in 1975, that during his first 4 months of employment
he "would drive a truck also", that he went to the Em-
ployer's central shop where he principally worked on
coal trucks and motors, that he would also spend about 2
days each week at various jobsdes repairing equipment
2 Fragile noted that Shrader, when he came to him in June 1988, was
out of work as an injured employee, Shrader later returned to work for
the Employer, Shrader vas subsequently laid off by the employer and ex-
ecuted a 'a standard panel form' (G C Exh 6), and Shrader is now a
retired employee of the Employer Fragile fuither noted that in a 1985
arbitration proceeding the Employer had argued that Shrader was a unit
employee Cf 0 C Exh 9
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Employer, that he was a union member from the
beginning of his employment, that other mechanics
working at the Employer's central shop were also union
members, that union dues were deducted from his pay-
checks by the Employer and the Employer also reported
his man hours worked to the union funds, and that the
Employer had never told him that it "considered [him]
sometimes to be a UMWA member and other times not
to be" Shrader further testified that in April 1987, Carl
Reffinger, the Employer's superintendent, informed his
that "Mr Cox was not going to pay any more contribu-
tions to the Union pension contributions take
no Union dues out and wouldn't pay into the man
hours" Shrader complained that he "needed that for
[his] pension" Heffinger responded that "Mr Cox didn't
care whether we had a pension plan or not" The Em-
ployer thereafter stopped reporting Shrader's man hours
and stopped checking off and remitting his union dues
Shrader denied telling the Employer "to stop taking dues
out of [his] paycheck" as claimed by Cox Shrader there-
after continued to work in the shop and at the various
jobsites "like it had always been"—there were no
changes in his duties Shrader acknowledged that he first
complained to the Union about this matter in June 1988,
that he filed no "grievance" or "charge" at the time be-
cause he "figured [he would] be laid off"—he did not
"complain because he did not want to "throw" himself
and coworkers "out of a job "3
Discussion
The credited evidence of record recited above makes
it clear that employee Richard L Shrader was covered
at all times pertinent to this case by the 1984 and 1988
collective-bargaining agreements between the parties
The contracts provided that the "transportation of coal
repair and maintenance work normally performed at
the mine site or at a central shop of the Employer
and work of the type customarily related to all of the
above shall be performed by classified employees of
the Employer covered by and in accordance with the
terms of this agreement " The Employer is en-
gaged in the transportation of coal by truck The Em-
ployer also maintains a central shop As Clovis Cox,
owner of Respondent Employer acknowledged, his
Company "basically furnishes the truck and the driver to
haul coal that's the main purpose of [his] business"
He also has "a shop more or less to support the trucking
part of [his] business" Shrader principally worked for
the Employer from 1975 until his retirement in 1988 as a
mechanic repairing the Employer's trucking equipment
either at mmesites or at the shop He was a union
member from the outset of his employment, initiation
fees were withheld, dues were regularly deducted and
remitted to the Union, man hours were reported and
payments to the union pension funds were regularly
made, all in accordance with the terms of the contracts
3 I credit the testimony of Shrader and Fragile as summarized above
Their testimony is in large part mutually corroborative and is substantiat-
ed in significant part by undisputed documentary evidence of record
They Impressed me as reliable and trustworthy witnesses On the other
hand, I find the testimony of Cox, as recited supra, to be vague, unclear,
contradictory, incomplete, and unreliable
between the parties, and the Employer treated Shrader
throughout this 12-year scenario as a union member cov-
ered by the contracts Suddenly, however, in April 1987,
the Employer unilaterally stopped withholding dues, re-
porting man hours and remitting dues and pension con-
tributions for Shrader Shrader explained that he still
continued to perform his same duties for the Employer
Shrader continued to perform repair and maintenance
work relating to coal transportation both at the Employ-
er's central shop and at mmesites Indeed, the Employer
thereafter executed a "panel form" for Shrader as a laid-
off employee in accordance with the contracts and later
provided him with health insurance as a retiree under the
contracts
On this record, I find and conclude that Shrader was
at all times pertinent to this proceeding covered by the
collective-bargaining agreements between the parties and
that Respondent Employer violated Section 8(a)(5) and
(1) of the Act by unilaterally altering and modifying the
collective-bargaining unit by removing the central shop
mechanic classification from the unit and by failing and
refusing to deduct and remit union dues and pension con-
tnbutions on behalf of Shrader in accordance with the
contracts
Counsel for the Employer argues that this proceeding
is barred by the 6-month time limitation of Section 10(b)
of the Act The Union, as noted, first filed an unfair
labor practice charge in this case over 1 year after the
Employer unilaterally had stopped withholding and re-
mitting dues and pension contributions on behalf of
Shrader as required by the contracts It is, however, a
"well established" principle that the Section 10(b) period
"does not start to run" in a case such as this "until the
charging party [union] has notice of the events underly-
ing the charge and that the proponent of the 10(b) de-
fense has the burden of establishing notice " Har-
vard Folding Box Co, 273 NLRB 841 fn 1 (1984), and
cases cited Moreover, as restated in Teamsters Local 42
(Daly, Inc ), 281 NLRB 974, 977 (1986),
notice to the Charging Party is required in order to
trigger the 10(b) period [and] notice, whether
actual or constructive, must be clear and unambig-
uous and the burden of shoving such notice is on
the party raising the affirmative defense of Section
10(b)
See also Truck & Dock Services, 272 NLRB 592 (1984),
and cases cited
The United States Court of Appeals for the Ninth Cir-
cuit applied the foregoing pnnciple in a case involving
an employer's unilateral cessation of payments to union
health, welfare and pension plans after expiration of a
collective-bargaining agreement The court explained in
Stone Boat Yard v NLRB, 715 F 2d 441 (9th Cir 1983),
enfd 264 NLRB 981 (1983),
The limitation period does not begin to run until the
party filing the charge knows or has reason to
know that that an unfair labor practice has oc-
curred
PATSY TRUCKING 863
[The employer] contends that notice of the uni-
lateral changes given by the employer to the union
members constitute notice to the union for purposes
of triggering the statute of limitations Nothing in
the record suggests, however, that the union mem-
bers were agents of the union Therefore, knowl-
edge possessed by the members will not be attrib-
uted to the union the union's unfair labor
[practice] charge was timely
The credited evidence of record establishes that
Charging Party Union neither had actual nor construc-
tive notice of the Employer's unilateral and unlawful
conduct until June 28 or 29, 1988 when employee
Shrader first complained to union executive board
member Sam Fragile Shrader credibly explained that he
did not complain earlier to the Union or the Board be-
cause he feared loss of his job Indeed, when in April
1987 he asserted to management that its unilateral action
might jeopardize his union pension, the Employer made
clear that it "didn't care whether [he] had a pension plan
or not," in total disregard of existing contract provisions
Fragile also credibly testified that the Union first became
aware of the Employer's unilateral and unlawful conduct
when Shrader came to him on June 28 or 29 Fragile
credibly explained why the Union could not discover
such information earlier in the exercise of due diligence
Dues payments can be "temporanly discontinued" when
an "active employee" is laid off, injured, sick, or the
"contract expired", a laid off, injured, sick or "expired
contract" employee is permitted to remit $1 25 monthly
directly to the Union if he wishes to retain certain privi-
leges, the Employer however, does "not notify the
Union in any way of an individual's status per month
other than an active employee that they remit dues on",
and the Union does "not monitor an individual's dues,
only the Employer's dues for the whole Company",
The District only monitors the companies, not the
individuals There's too many employees to monitor
individually At this time there's probably 3500
active and from 10,000 to 15,000 retired, laid off
and employees off sick and injured It's impos-
sible to monitor them individually
On this record, I find and conclude that Charging Party
Union first had actual or constructive notice of the Em-
ployer's unilateral and unlawful action on June 28 or 29,
1988, and filed timely unfair labor practice charges with
the Board the following month I also find that, under
the circumstances existing here, the Union could not
have learned earlier of this conduct by the exercise of
due diligence and Shrader is not an agent of the Union I
therefore reject this defense
CONCLUSIONS OF LAW
1 Charging Party Union is a labor organization as al-
leged
2 Respondent Employer is an employer engaged in
commerce as alleged
3 Charging Party Union was at all times pertinent to
this case, and is, the exclusive bargaining agent of the
Employer's employees in the following appropriate unit
All truck drivers and mechanics employed at Re-
spondent's Bluefield, West Virginia facility, exclud-
ing office clerical employees, guards and supervi-
sors as defined in the Act
4 Respondent Employer, commencing on or about
April 1987 and at all times thereafter, violated Section
8(a)(5) and (1) of the National Labor Relations Act by
unilaterally altering and modifying the collective-bar-
gaining unit by removing the central shop mechanic clas-
sification from the unit and by failing and refusing to
deduct and remit union dues and pension contributions
on behalf of central shop mechanic Richard L Shrader,
as provided in the collective-bargaining agreements be-
tween the parties
5 The unfair labor practices found above affect com-
merce as alleged
REMEDY
To remedy the unfair labor practices found above Re-
spondent Employer will be directed to cease and desist
from engaging in the conduct found unlawful and like or
related conduct and to post the attached notice In addi-
tion, Respondent Employer will be directed to restore
the central shop mechanic classification to the bargaining
unit in accordance with the contracts, to remit to the
Union all dues it should have deducted from Shrader's
wages and remitted pursuant to the terms of the collec-
tive-bargaining agreements with interest computed in the
manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987) 4 , and to remit to the Union pension
funds all pension contributions due on behalf of Shrader
since on or about April 1987 pursuant to the terms of the
collective bargaining agreements The Board does not
provide at the adjudicatory stage of the proceeding for
the addition of interest at a fixed rate on unlawfully
withheld fund payments because the provisions of em-
ployee benefit fund agreements are variable and complex
Therefore, interest owed with respect to the pension
fund contributions will be determined in accordance with
the procedure set forth in Merryweather Optical Co, 240
NLRB 1213, 1216 fn 7 (1979) See also Stone Boat Yard,
supra 5
On these findings of fact and conclusions of law, and
on the entire record, I issue the following recommend-
ed 6 C
ORDER
Respondent Patsy Trucking, Inc , its officers, agents,
successors, and assigns, shall
4 See also Stackpole Components Co, 232 NLR8 723 (1977)
5 There is no claim made here for any make-whole relief for Shrader
who apparently sustained no loss
6 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations, the findings, conclusions and recommended 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
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Cease and desist from
(a) Failing and refusing to bargain in good faith with
the Union, International Union, United Mine Workers of
America, and Its District 29, as the exclusive bargaining
agent of its employees in the following appropriate bar-
gaining unit, by unilaterally altering and modifying the
collective-bargaining unit by removing the central shop
mechanic classification from the unit and by failing and
refusing to deduct and remit union dues and pension con-
tributions on behalf of central shop mechanic Richard L
Shrader, as provided in the collective-bargaining agree-
ments between the parties The appropriate bargaining
unit is
All truck drivers and mechanics employed at Re-
spondent's Bluefield, West Virginia facility, exclud-
ing office clerical employees, guards and supervi-
sors as defined in the Act
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed to them in Section 7 of the National
Labor Relations Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Restore the central shop mechanic classification to
the bargaining unit in accordance with the contracts be-
tween the parties, remit to the Union all dues it should
have deducted from Shrader's wages and remitted pursu-
ant to the terms of the collective-bargaining agreements,
and remit to the union pension funds all pension contri-
butions due on behalf of Shrader since on or about April
1987 pursuant to the terms of the collective-bargaining
agreements, with interest as provided in this Decision
(b) Post at its facilities copies of the attached notice
marked "Appendix " Copies of said notice, on forms
provided by the Regional Director for Region 11, after
being signed by Respondent's, authorized representative,
shall, be posted immediately upon receipt and maintained
for a 60 consecutive days in conspicuous places, includ-
ing all places where notices to employees are customari-
ly posted Reasonable steps shall be taken to ensure that
notices are not altered, defaced, or covered by any other
material
(c) Notify the Regional Director in writing within 20
days from the date what steps have been taken to
comply
7 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 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
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
have violated the National Labor Relations Act and has
ordered us to post and abide by this Notice
WE WILL NOT fail and refuse to bargain in good faith
with the Union, International Union, United Mine Work-
ers of America, and Its District 29, as the exclusive bar-
gaining agent of our employees in the following appro-
priate bargaining unit, by unilaterally altering and modi-
fying the collective-bargaining unit by removing the cen-
tral shop mechanic classification from the unit and by
failing and refusing to deduct and remit union dues and
pension contributions on behalf of central shop mechanic
Richard L Shrader, as provided in our collective-bar-
gaining agreements The appropriate bargaining unit is
All truck drivers and mechanics employed at our
Bluefield, West Virginia facility, excluding office
clerical employees, guards and supervisors as de-
fined in the Act
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed to them in Section 7 of the Nation-
al Labor Relations Act
WE WILL restore the central shop mechanic classifica-
tion to the bargaining unit in accordance with our con-
tracts, remit to the Union all dues we should have de-
ducted from Shrader's wages and remitted pursuant to
the terms of the collective-bargaining agreements, and
remit to the union pension funds all pension contributions
due on behalf of Shrader since on or about April 1987
pursuant to the terms of the collective-bargaining agree-
ments, with interest as provided in the Board's Decision
PATSY TRUCKING, INC