Southern Materials Co., Inc.

National Labor Relations Board - Board Decisions

Apr 7, 1970

181 N.L.R.B. 958 (N.L.R.B. 1970)

958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southern Materials Company, Inc. and Teamsters
Local Union No. 822 and Truckdrivers and
Helpers Union No. 592, both affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America . Case 5-CA-4261
April 7, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On December 3, 1969, Trial Examiner Paul E.
Weil issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner, as modified herein
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Southern Materials
Company, Inc., Norfolk, Virginia, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified:
Insert the words "in the appropriate unit" in
paragraph 3 of the notice prior to the words "in the
amount" and subsequent to the words "our
employees "
'We agree with the Trial Examiner that the violation alleged in the
complaint is "of the same class of violations as those set out in the
charge" and thus, under N L R B v Fant Milling Company. 360 U S
301, is properly before the Board for disposition We do not, however,
adopt the Trial Examiner ' s conclusion that the "zipper clause" in the
collective-bargaining agreement between the parties hereto relieves the
Union of any bargaining obligation to which it might otherwise be subject
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner On a charge filed
November 25, 1968, by Truckdrivers and Helpers Local
No. 592 and Teamsters, Chauffeurs, Warehousemen,
Helpers, Miscellaneous Brewery and Soft Drink Workers,
Local 822, hereinafter jointly called the Union, against
Southern Materials Company, Inc, hereinafter called
Respondent, the General Counsel, by the Regional
Director for Region 5 (Baltimore, Maryland), issued a
complaint on August 6, 1969, alleging that Respondent
violated Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended, by discontinuing the payment
of a Christmas bonus without consultation with the
Union By its duly filed answer Respondent admitted the
jurisdictional allegations and admitted that the Union was
the collective-bargaining representative of employees in a
unit appropriate for collective bargaining and admitted
that a labor agreement exists between the parties which
contains the full and complete agreement between the
parties and which has been strictly adhered to by
Respondent. Respondent denies the unfair labor practice
alleged in the complaint On August 27, 1969, Respondent
filed a motion to dismiss on the ground that the Board is
without jurisdiction inasmuch as the allegations of the
complaint have never been the subject matter of a charge
and the complaint itself was issued more than 6 months
after the conduct or event which was alleged to be a
violation. Respondent's motion to dismiss was denied by
Trial Examiner Charles W. Schneider on September 4,
1969, but was renewed by Respondent in its brief'
A hearing was held before me at Norfolk, Virginia, on
October 7, 1969. All parties were represented and were
afforded full opportunity to participate and examine
witnesses and adduce relevant evidence Following the
hearing briefs were received from the Respondent and
General Counsel Upon the entire record in this
proceeding and in contemplation of the briefs, I make the
following
FINDINGS OF FACT
1 JURISDICTION
It is alleged and admitted that Respondent is a
Delaware corporation engaged in Virginia in the
production and distribution of sand, gravel, stone, and
ready-mix concrete During the 12-month period preceding
the issuance of complaint, Respondent purchased and
received products valued in excess of $50,000 shipped
from points outside the State of Virginia directly to its
plants in Virginia
Respondent is, and at all times material herein, has
been engaged in commerce within the meaning of Section
2(6) of the Act
' I do not disturb Trial Examiner Schneider ' s ruling with regard to
Respondent ' s motion to dismiss While I do not conceive that the issue is
properly before me, I cannot help but note that the violation alleged in the
complaint is certainly "of the same class of violations as those set out in
the charge" and grew out of them while the proceeding was pending before
the Board See N L R B v Fan! Milling Company. 360 U S 301 (1959)
181 NLRB No. 153
SOUTHERN MATERIALS COMPANY, INC. 959
II THE LABOR ORGANIZATION INVOLVED
It is alleged and admitted that Teamsters Local Union
No 822 and Truckdrivers and Helpers Union No 592,
both affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, are labor organizations within the meaning of
Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICE
Background
On or about December 29, 1967, the Board pursuant to
an election conducted under the supervision of the
Regional Director of Region 5 certified three unions, the
two Charging Parties herein and Local 29 from
Charlottesville, Virginia, as joint collective-bargaining
representatives of a unit consisting of all ready-mix truck
drivers and dump truck drivers employed by the
Respondent at its Campastella (Norfolk), Seatock
(Virginia Beach), Dock Street and Acca (Richmond), and
Petersburg and Charlottesville, Virginia, locations,
excluding all other employees, office clerical employees,
professional employees, watchmen, guards, and
supervisors as defined in the Act, which unit I find,
pursuant to the admission in the answer, to be a unit
appropriate for collective bargaining within the meaning
of Section 9(b) of the Act.'
On January 12, 1968, Lee R Brown, president of Local
822, in anticipation of negotiations with Respondent wrote
a letter to Respondent's Norfolk, Virginia, office stating
in pertinent part "Please furnish this office with wages,
health and welfare, pension, holidays, vacation, bonus,
now being paid to employees under bargaining unit. If
benefits are not uniform please furnish names "
On January 15, 1968, B. J. Harkins, personnel manager
of Respondent, sent a letter to Mr Brown setting forth
the wages, health and welfare and life insurance program,
,pension program, holidays and vacations and stating with
regard to bonus "No bonus is paid to any employee "
Negotiations for the initial contract commenced March
19, 1968, and continued until August 30, 1968, on which
date an agreement was reached. The chief negotiator and
spokesman for the Union was Anthony Capone and for
the Employer was Attorney Bowden Capone was
accompanied by a committee of officers of the locals but
according to his testimony was the sole spokesman for the
Union, as was Bowden for the Employer.
The sole factual issue in the case concerns an exchange
that took place at the March 20 meeting The parties were
discussing a maintenance of standards clause. Each party
had submitted a proposal, the Union's a lengthy proposal
covering all sorts of exigencies and the Employer a short
proposal stating simply "no employee shall suffer a
reduction in his hourly rate of pay by the execution of this
agreement " The Employer objected to the length and
"bulk" of the Union's proposal whereupon Capone
questioned what the standards were and asked the
Employer to present a list of all benefits enjoyed by the
employees that were not in the contract. The Employer
countered with a request to Capone to provide a list of
anything of this nature and stated that they would then
talk about it According to the testimony of Capone the
subject of a Christmas bonus was never mentioned at any
'1n the later bargaining Local 29 was eliminated with the agreement of
all parties
time during the negotiations and he was unaware that
there had been a Christmas bonus paid in the past until
November 24 during a meeting with the employees.
Capone testified that in the discussion of the benefits
which the men would be enjoying one of the union
representatives asked the question "what are the men
receiving" and Bowden replied "we are talking increases,
we are talking benefits We are talking everything that the
men will receive above what they are receiving now." At
that time Capone ruled that the Union would accept
Bowden's version of the maintenance of standards clause
"as the men could not lose anything that they were not
receiving." At a later meeting, on or about July 2, the
same union agent, French, asked what guarantee the
Union had if the Company failed to make payments into
the health and welfare plan. Capone quoted Bowden as
answering in effect "this is an honorable company I will
not continue to represent them if they renege so take my
word for it the men will not lose any benefits."
On cross-examination Capone denied that any listing of
benefits had ever taken place at the negotiations.
William A Whitehurste, operations manager in the
Norfolk area, was the sole witness called by Respondent
Whitehurste testified that at the March 20 meeting
Capone asked the Employer for a list of all benefits not in
the contract and Bowden "countered" with the request
that the Union provide the Employer with a list of
anything of this type and the Employer would then talk
about it Whitehurste went on to testify that they talked
about bad weather, sick pay, and the annual Christmas
"present "' Whitehurste also testified that the
Respondent's reason for not accepting the Union's
maintenance of standards clause was because it was highly
possible that some foreman might have had a personal
deal with a man of which management might not be
aware Whitehurste also testified that the March 20
meeting was the only meeting at which there was any
mention of the Christmas gift He testified that he did not
recall Bowden saying anything about dropping existing
benefits but only increasing over and above what now
exists, although he recalled a statement at one time
relative to wages that nobody's pay would be cut through
the establishment of any rate. This is, as the General
Counsel points out, what the maintenance of standards
clause states
On November 21, 1968, the Union filed a charge herein
alleging the unilateral discontinuance of established
practices as to sick leave, paid time during inclement
weather, and birthday cakes Thereafter while the charge
was under investigation Respondent failed to pay its
customary annual Christmas bonus
Discussion
Respondent argues that the Union waived its right to
negotiate on a Christmas present by its acceptance of a
waiver clause in the contract which provides that the
parties "voluntarily and unqualifiedly waive(s) the right
'Respondent made much of its position that it has never granted bonuses
but that it granted presents at Christmas time to the employees The
record of the "presents" submitted as a point exhibit and the testimony of
Whitehurste reveal that all employees were paid such presents each
Christmas at least since 1961 The exhibit shows that the presents started
at as little as $10 and increased each year for most employees until they
reached $ 100, usually in steps of $ 10 or $5 No one was paid over $100 As
I informed the parties at the hearing , I can see no distinction between a
Christmas present paid all employees and a Christmas bonus as it is
understood by the Board
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and each agrees that the other shall not be obligated to
bargain collectively with respect to any subject matter
referred to or covered by, this agreement, or with respect
to any subject or matter not specifically referred to or
covered in this agreement " Respondent argues that it is a
well-settled principle of labor law that a union can
negotiate or waive any of its rights, citing Allied Mills,
Inc, 82 NLRB 854; Jacobs Manufacturing Co, 94 NLRB
1214; Tide Water Associated Oil Co , 85 NLRB 1096;
Phelps Dodge Copper Products Corp , 96 NLRB 982
There is no question that the cases stand for the principle
for which they are cited. However the Board has held that
a waiver will not be lightly inferred and insists that the
negotiations which gave rise to the alleged waiver be
examined to determine whether there was a conscious
exploration of the matter waived and that the waiver be
clearly and unmistakably shown.
In the instant case, even accepting the testimony of
Whitehurste, it is clear that there was no conscious
exploration of Christmas bonuses at the March 20
meeting or at any other meeting. Even according to his
testimony it was merely mentioned as part of the package
of benefits then existing and while he does not recall a
statement by Bowden that Respondent was not
considering lowering existing benefits he does not deny
that such a statement was made. In any event the mere
listing of a Christmas gift along with other benefits
scarcely constitutes an exploration of an attempt by the
Employer to discontinue them As I see the issue the
Christmas bonus was an existing benefit paid all
employees. The advent of the Union and the negotiation
of a contract does not in itself serve to discontinue all
benefits paid prior thereto. When Respondent chose to
discontinue existing benefits it was incumbent on
Respondent to notify the Union and give it an opportunity
to bargain with respect to the change Thus the "zipper"
clause relied on by Respondent as a waiver operates in a
fashion opposite to that argued by Respondent. The duty
to initiate bargaining was Respondent's, not the Union's,
and the waiver clause provides that the Union need not
bargain with regard to the discontinuance of the bonus
Accordingly the waiver offers no shelter to Respondent in
this regard
Respondent also contends that the General Counsel
failed to establish the violation charged by clear and
convincing evidence Respondent bases its argument on
the alleged incredibility of the testimony of Capone which
as I have demonstrated above is in head-on conflict with
that of Whitehurste. However Respondent errs in this
regard If the General Counsel had not produced the
testimony of Capone but relied solely on the testimony of
Whitehurste, his case is still proven. Whitehurste did not
testify at any time that there was any negotiation about
the annual Christmas present other than his statement
that this was an arbitrary thing. His testimony cannot
even raise an inference that Respondent at any time
mentioned the possibility of discontinuance of the bonus.
The joint exhibit, as I stated above, amply demonstrates
together with the testimony of Whitehurste that the bonus
was customarily paid each Christmas to all unit employees
and as such I find was one of the conditions of
employment. Finally in response to a question asked by
Mr. Bowden why the bonus plan was discontinued with
reference to the drivers, Whitehurste testified "It was felt
that the raise of 35 cents within a period of 6 months far
exceeded the normal raises within the Company. And all
the money available had been invested in these people
through wages rather than through a Christmas present,
sir." This statement by Whitehurste makes it clear that
the decision to abandon the Christmas bonus was not
made until after negotiations were concluded. Whitehurste
did not remember whether the Employer even put forth a
wage offer on March 20 Finally there is no question and
the joint exhibit again shows no bonuses were paid in the
year 1968. Accordingly, all the elements of the violation
are proved with Respondent's evidence and Respondent is
scarcely in a position to argue that it is not clear and
convincing ° I conclude that as charged Respondent
refused and continues to refuse to bargain collectively in
good faith with the Union in its unilateral discontinuance
of the payment of the Christmas bonus in violation of
Section 8(a)(5) and (1) of the Act
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act, I shall recommend that
Respondent cease and desist therefrom and take certain
affirmative action necessary to effectuate the policies of
the Act. I shall also recommend that Respondent make its
employees whole for the monetary loss suffered by them
as a result of the unlawful withholding of the 1968
Christmas bonus, the amount of loss to be determined by
the formula as nearly as can be ascertained used in
making bonus payments in previous years with interest at
the rate of 6 percent per annum as provided in the
Board's decision in Isis Plumbing & Heating Co . 138
NLRB 716
Upon the basis of the foregoing findings of fact and the
entire record in the case, I reach the following:
CONCLUSIONS OF LAW
1. Southern Materials Company, Inc., is, and at all
times relevant hereto has been, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2 Teamsters Local Union No 822 and Truckdrivers
and Helpers Union No. 592, both affiliated with
International Brotherhood of Teamsters, Chauffeurs,
'Were it necessary to reach the issue I would discredit Mr Whitehurste's
testimony that the bonus was discussed on March 20 I find it impossible
to believe that at any time was a Christmas bonus or Christmas gift
mentioned in such form as to alert the bargaining committee , who were
theretofore unaware of its existence, to the fact that such a benefit existed
Respondent 's letter of January 15 denied the payment of any bonus to any
employee and Respondent admittedly at no time after March 20 ever
broached the subject On March 20 when faced with a perfectly reasonable
request for a list of existing benefits , Respondent countered by asking the
Union to list the benefits of which they wanted to talk In view of the
January 15 letter Respondent was quite willing to gamble that Capone, an
outsider , was unaware of the existing bonus It is difficult to believe that
Capone, a professional union negotiator , would have ignored an item of
this nature without so much as a word which is the situation according to
Whitehurste
SOUTHERN MATERIALS COMPANY, INC.
Warehousemen and Helpers of America, are labor
organizations within the meaning of Section 2(5) of the
Act.
3 All ready-mix truck drivers and dump truck drivers
employed by the Employer at its Campastella (Norfolk),
Seatock (Virginia Beach), Dock Street and Acca
(Richmond), and Petersburg and Charlottesville, Virginia,
locations, excluding all other employees, office clerical
employees, professional employees, watchmen, guards,
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4 The Unions are and at all times since December 29,
1967, have been the exclusive certified representative of all
employees in the aforesaid unit for the purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment.
5. By unilaterally discontinuing the payments of
Christmas bonuses in 1968 to its employees in the
appropriate unit, 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. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, I recommend that Respondent,
Southern Materials Company, Inc , its officers, agents,
successors, and assigns, shall:
1 Cease and desist from:
(a) Refusing to bargain collectively with the Union with
respect to Christmas bonuses or any term or condition of
employment by unilaterally effectuating changes in bonus
payments or any term or condition of employment of its
employees in the appropriate bargaining unit in derogation
of the rights of the Union or any other labor organization
which employees may select as their exclusive bargaining
representative
(b) In any like or related manner interfering with the
rights of employees guaranteed in Section 7 of the Act
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Pay to each of its employees in the appropriate unit
the amounts due them for the 1968 Christmas bonus to be
computed in the manner set forth in this Recommended
Order
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, 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 Recommended Order
(c) Post at its places of business in Norfolk, Virginia
Beach, Richmond, Petersburg, and Charlottesville,
Virginia, copies of the attached notice marked
"Appendix."5 Copies of said notice, on forms provided by
the Regional Director for Region 5, after being duly
signed by an authorized representative, shall be posted by
it immediately upon receipt thereof, and be mamtained,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,
961
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 5, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith 6
'In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 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 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Teamsters Local Union No 822 and Truckdrivers and
Helpers Union No. 592 by unilaterally changing
Christmas bonuses or any other term or condition of
employment of any employees in the appropriate
bargaining unit in derogation of the rights of the
Union.
WE WILL NOT engage in any like or related conduct
which interferes with, restrains, or coerces you in the
exercise of rights guaranteed you in Section 7 of the
Act.
WE WILL pay the 1968 Christmas bonus to our
employees in the amount due them with interest
thereon, at the rate of 6 percent per annum The
appropriate unit is*
All ready-mix truck drivers and dump truck drivers
employed by the employer at its Campastella (Norfolk),
Seatock (Virginia Beach), Dock Street and Acca
(Richmond), and Petersburg and Charlottesville,
Virginia, locations, excluding all other employees, office
clerical employees, professional employees, watchmen,
guards, and supervisors as defined in the Act.
SOUTHERN MATERIALS
COMPANY, INC
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
Federal Building, Room 1019, Charles Center, Baltimore,
Maryland 21202, Telephone 301-962-2822.