Pennsylvania Truck Lines

National Labor Relations Board - Board Decisions

Dec 10, 1990

300 N.L.R.B. 862 (N.L.R.B. 1990)

862
300 NLRB No. 113
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
1 I have considered the contents of G.C. Exhs. 7 and 22, the testimony of
the witnesses relating thereto, and the record statements of all counsel, both
at trial and on brief on the subject, and conclude that General Counsel’s mo-
tion to withdraw from that part of a stipulation regarding G.C. Exh. 7 which
indicates items A and B attached thereto are appropriate appendices is well
taken. I am persuaded, as General Counsel avers, items A and B were mistak-
enly attached. Although a party is normally bound by his or her stipulations,
the rules of evidence are not designed to be used to obscure the truth, and
the evidence before me, including the statements of all counsel at the hearing,
clearly demonstrates the stipulation was not in accord with the facts. Accord-
ingly, General Counsel’s motion to withdraw from the above-described portion
of the stipulation is granted. Cf. Interstate Material Corp., 290 NLRB 362,
364–366 (1988), where the stipulation was not shown to be untrue.
2 These is little disagreement on the relevant facts. To the extent there is,
the findings of fact are based on a composite of credited testimony, exhibits,
and considerations of logical consistency and inherent probability. I will not
discuss every bit of evidence adduced for the simple reason much of it is irrel-
evant, surplusage, and lacking in probative worth.
Pennsylvania Truck Lines, Inc. and Teamsters Na-
tional Freight Industry Negotiating Committee
(TNFINC). Case 5–CA–20154
December 10, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 18, 1990, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed a reply brief, and the Charging
Party filed a brief in opposition to the Respondent’s
exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Pennsylvania Truck Lines,
Inc., Wynnewood, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order, except that the attached notice shall be
substituted for that of the administrative 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 refuse to accept, give effect to, and
implement the terms and conditions of the collective-
bargaining agreement negotiated between Motor Car-
rier Labor Advisory Council and Teamsters National
Freight Industry Negotiating Committee effective April
1, 1988, through March 31, 1991.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed to them by the National Labor
Relations Act.
WE WILL forthwith accept, give effect to, and imple-
ment the terms of the 1988–1991 collective-bargaining
agreement referred to above.
WE WILL make whole our employees covered by
said agreement for any loss of pay or other employ-
ment benefits they may have suffered by reason of our
refusal to accept, give effect to, and implement the
aforesaid collective-bargaining agreement.
PENNSYLVANIA TRUCK LINES, INC.
Marc Stefan, Esq., for the General Counsel.
Peter D. Walther, Esq. and Linda Doyle, Esq., for Pennsyl-
vania Truck Lines.
James A. McCall, Esq., for Teamsters National Freight In-
dustry.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This pro-
ceeding was litigated before me at Washington, D.C. on De-
cember 19 and 20, 1989, and January 3 and 4, 1990, pursu-
ant to complaint issued on April 27, 1989, alleging Pennsyl-
vania Truck Lines, Inc. (PTL or Respondent), has violated
Section 8(a)(5) and (1) of the National Labor Relations Act
(the Act) by refusing to abide by and adhere to a collective-
bargaining agreement negotiated between the Charging Party
(TNFINC) and Motor Carrier Labor Advisory Council
(MCLAC), and which is binding on PTL. Respondent denies
the commission of unfair labor practices, and offers affirma-
tive defenses.
After considering the record,1 the demeanor of the wit-
nesses testifying before me, and the posttrial briefs of the
parties, I make the following
FINDINGS OF FACT2
I. BUSINESS OF THE RESPONDENT
PTL is a Pennsylvania corporation, with headquarters in
Wynnewood, Pennsylvania, engaged in interstate and intra-
state transportation of freight and commodities by truck
throughout the eastern continental United States, and func-
863PENNSYLVANIA TRUCK LINES
3 All dates are in 1988 unless otherwise stated.
tions as an essential link in the interstate transportation of
freight and commodities. During the 12 months preceding the
issuance of the complaint, a representative period, Respond-
ent, in the course of these business operations, derived gross
revenues in excess of $50,000 from the interstate transpor-
tation of freight and commodities. Respondent is, and has
been at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO (the
Union) and its affiliated local unions are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
MCLAC is an organization of employers engaged in the
transportation of freight and commodities by truck, is the
bargaining representative of those employers in negotiations
with the Union, its affiliated local unions and TNFINC, and
represents its employer-members in administering collective-
bargaining agreements with the Union and its locals.
TNFINC is the authorized agent of the Union and its
locals for the purpose of negotiating the National Master
Freight Agreement (NMFA) with MCLAC and other multi-
employer association and individual employers.
PTL has been a member of MCLAC since before 1982.
Jere Kimmich, PTL’s vice president of labor and personnel
since 1985 or 1986, has been a member of MCLAC’s board
of directors since 1983 or 1984, is on its national negotiating
committee, served as employer chairman of several sub-
committees during the 1988 negotiations between MCLAC
and TNFINC, and attended all national committee meetings
during those negotiations until June 8, 1988. Kimmich, on
behalf of PTL, gave the following letter of authority to
MCLAC on January 4, 1985:
LETTER OF AUTHORITY
The undersigned PENNSYLVANIA TRUCK LINES,
INC. (‘‘Company’’) hereby appoints MOTOR CAR-
RIER LABOR ADVISORY COUNCIL as its official
Representative in all matters related to negotiations
with the Officers of all Local Unions identified with the
International Brotherhood of Teamster’s Union and the
Teamsters National Freight Industry Negotiating Com-
mittee for a new National Master Agreement to replace
the National Master Freight Agreement which termi-
nates on March 31, 1985. In this regard, the Company
agrees to become part of a multi-employer, multi-local
union bargaining unit, but only with other employers
represented by MOTOR CARRIER LABOR ADVI-
SORY COUNCIL. However, the Company reserves the
[sic] to itself the right to negotiate and approve, either
through MOTOR CARRIER LABOR ADVISORY
COUNCIL, or otherwise, a separate Rider, Addendum
and/or Supplement covering its own special cir-
cumstances and operations.
In addition, the Company authorizes said MOTOR
CARRIER LABOR ADVISORY COUNCIL to adjust,
settle, compromise or submit to arbitration any griev-
ances, demands, disputes or other matters arising out of,
or through, the National Master Agreement and all Rid-
ers, Supplements and/or Addendums thereto, including
the individually negotiated and approved Rider, Supple-
ment and/or Addendum covering its own special and
unique operations.
This authorization shall be in full force and effect
from the date of the signing hereof and shall continue
there-after [sic] until thirty (30) days after written no-
tice of desire to cancel or terminate the authorization is
received at the offices of MOTOR CARRIER LABOR
ADVISORY COUNCIL.
COMPANY Pennsylvania Truck Lines, Inc.
BY Jere R. Kimmich, Sr.
TITLE Director of Labor Relations
This authorization by PTL is conceded to have remained in
effect until Kimmich’s letter of December 12, 1988, to
MCLAC reading, in relevant part, as follows:
This letter constitutes an official withdrawal of
MCLAC’s authorization pursuant to the existing Letter
of Authority to act on behalf of Pennsylvania Truck
Lines, Inc. (‘‘PTL’’) in all bargaining agreement nego-
tiations, whether on the National, Regional or Local
Levels.
However, the portion of the Letter of Authority that
authorizes MCLAC to administrate and represent PTL
in the grievance procedure will still remain in full force
and effect.
Thereafter, on December 23, 1988, PTL reappointed
MCLAC as its representative only for matters related to
grievance processing.
The bargaining for a new contract commenced with the
exchange of proposals on January 14, 1988.3 TNFINC and
MCLAC agreed at the outset that their negotiations would be
separate from those between TNFINC and Trucking Manage-
ment Incorporated (TMI), another association of employers
in the trucking business, which were going on at the same
time. TNFINC did in fact conduct separate negotiations with
MCLAC and TMI. Kimmich recalls there were 17 national
negotiating committee meetings during the MCLAC negotia-
tions, all of which he attended. Agreements reached at sub-
committee level were presented to the joint national commit-
tee for acceptance or rejection. Kimmich recalls no instance
where agreement reached in subcommittee was rejected at
the national committee level. There were some agreements
reached in subcommittees which he chaired. The various
notes, workbooks of the parties, minutes, and testimony es-
tablish there was considerable discussion and agreement by
the parties on several items, disagreement on others, and
withdrawal of proposals by both parties. Many provisions of
the expiring contract were adopted without change by agree-
ment. Kimmich testified that although there was discussion
of MCLAC proposals, there was no negotiation regarding
them. This conclusion stems from Kimmich’s view that
‘‘[N]egotiations in my mind are when two people or two par-
ties sit down and agree mutually to terms of any contract or
any meeting that they are having, that’s negotiations, when
two people sit down and discuss and come to agreement, that
to me is negotiation.’’ This is, happily, what does happen in
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Sec. 8(d) of the Act.
5 Although proffered by the Union as the text of Yager’s remarks, C.P. Exh.
6 was rejected as lacking in foundation.
many bargaining relationships, but this description mistak-
enly equates negotiation with agreement. Negotiation often
ends in disagreement. What the Act requires is that the em-
ployer and the union ‘‘meet at reasonable times and confer
in good faith with respect to . . . the negotiation of an
agreement or any question thereunder, . . . but require the
making of a concession.’’4 An examination of the evidence
adduced respecting the negotiations persuades me that
MCLAC and TNFINC did indeed ‘‘meet at reasonable times
and confer in good faith’’ with respect to the proposals be-
fore them. There is no probative evidence of bad-faith bar-
gaining on either side, and no one claimed otherwise so far
as the record shows, until after the events of June 8 had
taken place.
TNFINC and MCLAC met on June 8. TNFINC had
reached agreement with TMI, who had accepted TNFINC’s
‘‘national standard’’in the NFMA agreed upon by them.
MCLAC had not as yet accepted all the provisions of
NFMA, but had agreed to many of its provisions. At the
meeting, Jack Yager, the chief spokesman for TNFINC, read
a prepared statement. The document read is not in evidence,5
and Yager did not testify.
As Kimmich recalls, Yager’s statement was, in essence,
that the Union had a ratified national standard and MCLAC
was going to have to accept it. Kimmich added that Yager
said MCLAC would get nothing different from the national
standards and Yager did make the statement that the Union’s
goal was to try to negotiate as close to the national standard
as it could. Kimmich further testified that Yager said
MCLAC would take the national freight standards or the
Union would take economic action.
According to Linda Doyle, official secretary for the
MCLAC negotiation committee, Yager read a prepared state-
ment to the effect this was the bottom line monetary pro-
posal, and if MCLAC did not accept it the Union would re-
serve the right to strike. According to Doyle and her contem-
poraneous notes, Yager said MCLAC must accept the na-
tional standards which had been negotiated with TMI and
which had been repeatedly presented to MCLAC. In response
to a question regarding alternatives, Yager said there were
none and, if MCLAC refused to accept the national standards
as negotiated with TMI, the Union reserved the right to se-
lectively strike. Yager further advised there was no need for
ratification because the standards negotiated with TMI had
been ratified in accord with the Teamsters’ constitution.
Doyle was more impressive than Kimmich as a careful, con-
scientious witness, not given to unnecessary commentary or
evasion, as was Kimmich on occasion, I therefore rely more
on her testimony and notes than on Kimmich’s testimony. In
the long run it makes little difference because the evidence
requires a finding that Yager conveyed a threat to strike if
MCLAC did not accept the national standards as had TMI.
Kimmich opposed the June 8 proposal by TNFINC, and
left the June 8 meeting when it was determined that a major-
ity of MCLAC members would accept it. PTL never there-
after, by Kimmich or otherwise, participated in the remaining
negotiations which involved several unresolved provisions.
The contract has since been agreed upon and issued in print-
ed form. Kimmich explained his and PTL’s absence from ne-
gotiations commencing on June 8 and continuing thereafter
as follows: ‘‘At that point when the carriers accepted what
I considered to be the TMI negotiated contract, our power
of attorney, the way it’s written, we felt no longer bound us
to MCLAC and we left the negotiations.’’ The real reason
for PTL’s abrupt departure from MCLAC’s bargaining team
and PTL’s position to date, as expressed by Kimmich, that
it has not agreed to be bound to what MCLAC accepted is,
I conclude, made clear by Kimmich’s testimony that the
MCLAC agreement put PTL at a competitive disadvantage;
and his statement in his pretrial affidavit that PTL would not
be able to recoup the increased costs resulting from imple-
mentation of the MCLAC/TNFINC agreement. In the final
analysis, however, whether PTL’s departure from the nego-
tiations on June 8 was due to the economic impact the agree-
ment might have on PTL or because the agreement was con-
summated under threat of strike is immaterial. In either case,
PTL’s attempt to divorce itself from MCLAC, absent itself
from further negotiations, and refuse to accept the
MCLAC/TNFINC agreement as binding on PTL is contrary
to established precedent and a nullity of no legal force or ef-
fect for the reasons set forth below.
The initial question tor resolution is whether Respondent
is bound by MCLAC’s June 8 acceptance of the agreement
proffered by Yager on that date. The relevant portion of Re-
spondent’s letter of authority which Respondent concedes
was in effect at the time reads as follows:
The undersigned PENNSYLVANIA TRUCK LINES,
INC. (‘‘Company’’) hereby appoints MOTOR CAR-
RIER LABOR ADVISORY COUNCIL as its official
Representative in all matters related to negotiations
with the Officers of all Local Unions identified with the
International Brotherhood of Teamster’s Union and the
Teamster’s National Freight Industry Negotiating Com-
mittee for a new National Master Agreement to replace
the National Master Freight Agreement which termi-
nates on March 31, 1985. In this regard, the Company
agrees to become part of a multi-employer, multi-local
union bargaining unit, but only with other employers
represented by MOTOR CARRIER LABOR ADVI-
SORY COUNCIl. However, the Company reserves to
itself the right to negotiate and approve, either through
MOTOR CARRIER LABOR ADVISORY COUNCIL,
or otherwise, a separate Rider, Addendum and/or Sup-
plement covering its own special circumstances and op-
erations.
Respondent’s extensive argument in its posttrial brief with
respect to the limits of MCLAC’s authority to bind PTL is
probably best summed up in Respondent’s own words:
When MCLAC agreed to be bound by the TMI-ne-
gotiated agreement, an agreement clearly negotiated
with employers outside the MCLAC bargaining unit,
this action exceeded Respondent’s limited power of at-
torney. MCLAC capitulation (albeit under duress—ille-
gally imposed) was still done outside the scope of its
authority as Respondent’s bargaining agent. As a result,
MCLAC’s actions were not binding on Respondent.
The argument is imaginative and ably made, but uncon-
vincing. It is certainly obvious that a contract between
TNFINC and TMI was negotiated with employers belonging
865PENNSYLVANIA TRUCK LINES
6 See, e.g., City Roofing Co., 222 NLRB 786, 788 (1976).
7 226 NLRB 851, 853 (1976), enfd. 564 F.2d 190 (5th Cir. 1977).
8 McAx Sign Co., 231 NLRB 957, 958 (1977); J. D. Candler Roofing Co.,
258 NLRB 341, 342 (1981).
9 Compare Steel Erectors, 283 NLRB 314 fn. 2, 320, (1987).
10 A union may rely on an employer’s apparent delegation of authority to
a multiemployer unit. Joseph Stern & Sons, 297 NLRB 1 (1989).
11 120 NLRB 388, 395 (1958).
to TMI, not MCLAC. It is equally clear that MCLAC was
only authorized by Respondent to bargain for it as one of the
group of employers represented under the MCLAC umbrella.
MCLAC was not a party to the TMI/TNFINC negotiations,
nor was TMI a party to the MCLAC/TNFINC negotiations.
The mere fact that TNFINC wanted MCLAC to agree to the
same terms accepted by TMI cannot be logically construed
as evidence that Respondent was by accepting the proposal
being forced into a multiemployer unit including TMI. When
MCLAC agreed to TNFINC’s June 8 terms it was merely ac-
cepting a proposal, not accepting TMI as an associate or
member. Whether or not TMI had earlier accepted the same
terms is immaterial. There is no reason whatsoever that a
union may not seek the same terms from one employer that
it has obtained from another, and there is nothing in Re-
spondent’s letter of authority that allows Respondent to re-
scind that authority if and when MCLAC accepts
contractural provisions that have been previously negotiated
by TNFINC with another employer or group of employers
not members of MCLAC. Moreover, there is no evidence the
MCLAC accepted the June 8 proffer of TNFINC which re-
lated to the negotiation of the new NMFA in any way ne-
gated or otherwise affected Respondent’s reserved right to
negotiate riders, addendums, etc., peculiar to its own special
circumstances, as it previously had done. MCLAC’s agree-
ment, or capitulation as Respondent calls it, to the terms pro-
posed by Respondent was not illegally imposed. As I have
previously noted, there is nothing in the evidence of the ne-
gotiations to support a contention the Union was engaged in
a mere exercise, not seriously and thoughtfully considering
and discussing proposals and counterproposals, or otherwise
indulging itself in bad-faith bargaining. Notwithstanding all
the argument pro and con about who did what in negotia-
tions, when all the chaff is blown away it remains true that
the only even arguable question of duress arises from what
Yager said on June 8 when he presented the TNFINC pro-
posal. He may not have said, in haec verba, the Union would
strike if MCLAC did not accept the national standards
sought by TNFINC, but he clearly conveyed that message.
The right to strike is specifically reserved to employees, and
by extension their bargaining agent by Section 13 of the Act
providing, ‘‘Nothing in this Act, except as specifically pro-
vided for herein, shall be construed so as either to interfere
with or impede or diminish in any the right to strike, or to
affect the limitations or qualifications on that right.’’ None
of the exceptions set forth in the Act are applicable to the
situation before me. It is beyond cavil that a union may en-
gage in a lawful economic strike to secure contract demands,
and that an employer may in certain circumstances lock out
its employees as a bargaining weapon. If one may lawfully
strike to get a contract, one may certainly threaten to strike
as a means of securing bargaining goals.
Returning to the threshhold issue of whether Respondent
is bound by the collective-bargaining agreement negotiated
by MCLAC and TNFINC. The law is well established that
there must be a manifestation by an employer of an un-
equivocal intention to be bound.6 The Board explained in
Custom Colors Contractors,7 and subsequently quoted with
approval,8 its view that it must be kept in mind when evalu-
ating the employer’s intention that:
The manifestation of an ‘‘unequivocal intention’’ to
be bound requires something less, however, than a sol-
emnly executed document signed and sealed with hot
wax. A commitment to bargaining on a multiemployer
basis will not be made to depend on the presence of a
formal associational structure among the bargaining
participants or on the formal delegation of authority
from the individual employer to the multiemployer
group. Nor will the Board, faced with outward mani-
festations of intent to engage in group bargaining, con-
sider as controlling an employer’s private manifesta-
tions of dissent. An employer who, through a course of
conduct or otherwise, signifies that it has authorized the
group to act in its behalf will be bound by that apparent
creation of authority.
Here there is an unambiguous executed letter of authority.
There is a failure of Kimmich to in any way protest or take
exception at the January 14, 1988, meeting between MCLAC
and TNFINC when MCLAC’s chairman of negotiations,
Steve Bridge, presented TNFINC Representative Yager with
a ‘‘list of member carriers who have designated MCLAC as
their bargaining representative for bargaining purposes’’ and
attached copies of powers of attorney which ‘‘grant the
MCLAC association authority to bargain on a multi-em-
ployer basis for the purpose of concluding an agreement
which will be applicable to all members of our unit.’’9
Kimmich was present when Bridge made the quoted rep-
resentations. Thereafter, Kimmich, on behalf of PTL, took an
active part in the negotiations as chairman of subcommittees
and member of the national committee whose meetings he
never missed until after his June 8 departure. PTL, by its
Agent Kimmich’s letter of authority, failure to contest
Bridge’s representations to Yager, and leading role in the ne-
gotiations, delivered the clear and unequivocal message to
both MCLAC and TNFINC that it intended to be bound by
agreements reached during these negotiations.10 Once so
committed and bargaining commenced, PTL was not free to
drop out at its pleasure merely because it did not like the re-
sults of the bargaining. The long-standing rule on withdrawal
from a multiemployer relationship was succinctly set forth by
the Board in Retail Associates,11 as follows:
We would accordingly refuse to permit the with-
drawal of an employer or a union from a duly estab-
lished multiemployer bargaining unit, except upon ade-
quate written notice given prior to the date set by the
contract for modification, or to the agreed-upon date to
begin the multiemployer negotiations. Where actual bar-
gaining negotiations based on the existing multiem-
ployer unit have begun, we would not permit, except on
mutual consent, an abandonment of the unit upon which
each side has committed itself to the other, absent un-
usual circumstances.
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Compare Anderson Lithograph Co., 124 NLRB 920 (1959).
13 Bill Cook Buick, 224 NLRB 1094, 1096 (1976); State Electric Service,
198 NLRB 592 (1972), affd. 477 F.2d 749 (5th Cir. 1973).
14 Bonanno Linen Service v. NLRB 454 U.S. 404 (1982).
15 183 NLRB 682 (1972).
16 283 NLRB 1173 (1987). Interest on and after January 1, 1987, shall be
computed at the ‘‘short-term Federal rate’’ for the underpayment of taxes as
set out in the 1986 amendment to 26 U.S.C. § 6621.
17 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 objec-
tions to them shall be deemed waived for all purposes.
There certainly has been no mutual consent to PTL’s with-
drawal, and the only possibility open to it as justification
therefor would be unusual circumstances. Before turning to
the issue of unusual circumstances, it is important to note
that Kimmich, i.e., PTL, did not give unequivocal notice on
June 8 that PTL was attempting to withdraw from the multi-
employer unit, and therefore cannot now claim PTL in fact
withdrew on June 8. Such notice was not forthcoming until
Kimmich’s letter of December 12.12 By that time MCLAC
and TNFINC had negotiated NMFA issues remaining after
June 8, had come to full agreement, and executed a collec-
tive-bargaining agreement in mid-June. PTL has since re-
fused to accept that agreement as binding on it, but claims
it has applied its terms to employees.
The collective-bargaining agreement between MCLAC and
TNFINC was executed prior to PTL’s December 12 letter
withdrawing bargaining authority. This withdrawal effort was
untimely and Respondent is therefore prima facie bound to
honor the MCLAC/TNFINC agreement. Neither MCLAC nor
TNFINC have been shown to have acquiesced in PTL’s at-
tempted withdrawal, and Respondent’s claim of bad-faith
bargaining by TNFINC is without merit. Turning to the ques-
tion of Yager’s June 8 statement, being subject to a strike,
standing by itself, is not a basis for concluding an employer
is in such difficult economic straits that its very existence as
viable business entity has or is about to end,13 and this is
the standard that must be met to justify an untimely with-
drawal not acquiesced to.14 If the strike itself is not enough,
the mere threat of strike is not enough. There is no persua-
sive evidence of any other factor that might give rise to the
‘‘unusual circumstances’’ referred to in Retail Associates,
supra. All we have here is an attempted severance of a bar-
gaining relationship because PTL did not like the result
thereof. For the foregoing reasons, I conclude and find PTL
is bound by the multiemployer bargaining for the Master
Freight Agreement negotiated by TNFINC and MCLAC and
therefore must adhere to and abide by that agreement. Its re-
fusal to so do violates Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union and its affiliated local unions are labor orga-
nizations within the meaning of Section 2(5) of the Act.
3. TNFINC is the authorized agent of the Union and its
locals for the purpose of negotiating the National Master
Freight Agreement with MCLAC and other employers.
4. At all times material, Respondent has been, and is now,
an employer member of MCLAC which has been at all times
material Respondent’s authorized agent for the purpose ot
negotiating collective-bargaining agreements with the Union,
its locals, and TNFINC covering employees of MCLAC’s
members including Respondent. The Union’s affiliated locals
represent the aforesaid employees for purposes of collective-
bargaining.
5. By its refusal to accept, be bound by, and execute the
collective-bargaining agreement concluded between TNFINC
and MCLAC, Respondent has violated Section 8(a)(5) and
(1) of the Act, and thereby committed an unfair labor prac-
tice affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
In addition to the usual cease-and-desist and notice posting
requirements, Respondent shall be required to adhere to, sup-
plement, and apply the 1988–1991 agreement reached be-
tween MCLAC and TNFINC and give it retroactive effect to
April 1, 1988, its effective date, make its employees covered
by said agreement whole for any loss of earnings suffered
since then as a result of its failure to apply the agreement,
said backpay to be computed as set forth in Ogle Protection
Service,15 with interest as prescribed in New Horizons for the
Retarded.16 Respondent shall also be required to make pay-
ments, retroactive to April 1, 1988, into the various funds on
behalf of those employees in the bargaining unit for whom
such contributions would have been made had Respondent
not repudiated the agreement. The extent to which Respond-
ent may already have complied with these provisions is a
matter to be determined in subsequent compliance pro-
ceedings.
On these findings of fact and conclusions of law, and on
the entire record in this case, I issue the following rec-
ommended17
ORDER
The Respondent, Pennsylvania Truck Lines, Inc.,
Wynnewood, Pennsylvania, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to accept, give effect to, and implement the
terms and conditions of the collective-bargaining agreement
negotiated between MCLAC and TNFINC, effective April 1,
1988 through March 31, 1991.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Accept, give effect to, and implement the terms and
conditions of the 1988–1991 collective-bargaining agreement
negotiated between MCLAC and TNFINC, and give it retro-
active effect to April 1, 1988, making its employees covered
by said agreement whole for any loss of earnings suffered
since then as a result of Respondent’s failure to apply the
agreement.
(b) Pay to the appropriate trust funds the contributions re-
quired by the above-described agreement to the extent such
contributions have not been made or that the employees have
not otherwise been made whole for their ensuing medical and
other expenses.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
867PENNSYLVANIA TRUCK LINES
18 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facilities in Wynnewood, Pennsylvania, cop-
ies of the attached notice marked ‘‘Appendix.’’18 Copies of
the notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.