Teamsters Local 3, 28, 37, 42 (Lanier Brugh Corp.)

National Labor Relations Board - Board Decisions

May 30, 2003

339 N.L.R.B. 131 (N.L.R.B. 2003)

JOINT COUNCIL OF TEAMSTERS 3. 28, 37, 42 (LANIER BRUGH CORP.) 131
Joint Council of Teamsters Numbers 3, 28, 37, 42,
affiliated with the International Brotherhood of
Teamsters on behalf of their affiliated Local Un-
ions including but not limited to Local Numbers
81, 206, 670, 962, 690, 741, 222, 483, 533, 961,
631, 839, 986, 983 and Lanier Brugh Corpora-
tion. Case 27–CB–4092–001
May 30, 2003
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
On April 10, 2001, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. The Respon-
dents filed exceptions and a supporting brief and the
General Counsel filed an answering brief.
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 affirms the
judge’s rulings, findings,1 and conclusions as modified
and adopts the recommended Order as modified and set
forth in full below.2
I. INTRODUCTION
This case involves the Respondents’ refusal, beginning
in 1997, to represent Lanier Brugh’s Pocatello, Idaho
drivers because they were not dues-paying union mem-
bers, even though all of Lanier Brugh’s drivers have been
jointly represented in a systemwide unit by various local
unions and Joint Councils of the International Brother-
hood of Teamsters (hereafter collectively known as the
Joint Representative) since the 1950s. Respondents also
induced the Western Conference of Teamsters Pension
Trust to refuse to accept contributions on the Pocatello
drivers’ behalf by informing it that they were not covered
by the parties’ collective-bargaining agreement. We
adopt the judge’s finding that by these actions Respon-
dents violated Section 8(b)(1)(A). We also adopt the
judge’s finding that all Respondents except Local 983,
by wrongly taking the position that these drivers were no

1 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence 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 examined the record and find no
basis for reversing the findings.
2 We have modified the judge’s recommended Order to reflect the
violations found and to more closely correspond to the Board’s usual
remedial provisions. We have also included in the remedy section of
this decision provisions that were omitted from the judge’s decision.
See Gaucho Food Products, 311 NLRB 1270 fn. 1 (1993).
We shall substitute a new notice in accordance with our recent deci-
sion in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
longer bargaining unit employees, refused to bargain
with Lanier Brugh over the terms and conditions of em-
ployment of all of its unit employees in violation of Sec-
tion 8(b)(3). Because Local 983 timely withdrew from
the Joint Representative with the consent of all parties, it
had no statutory duty to bargain with Lanier Brugh dur-
ing the relevant period of time and we therefore find no
violation of Section 8(b)(3) with respect to it.
II. FACTUAL BACKGROUND
As more fully set forth in the judge’s decision, Lanier
Brugh and the Joint Representative have been parties to
successive collective-bargaining agreements covering a
systemwide unit of Lanier Brugh’s drivers. During the
term of the parties’ July 1, 1994, to June 30, 1997 agree-
ment, the Joint Representative was composed of Respon-
dents Joint Council of Teamsters Numbers 3, 28, 37, 42,
affiliated with the International Brotherhood of
Teamsters on behalf of their affiliated Local Unions in-
cluding but not limited to Local Numbers 81, 206, 670,
962, 690, 741, 222, 483, 533, 961, 631, 839, 986, and
983.
On March 20, 1997, Local 983 timely submitted to
Lanier Brugh and the Joint Representative notice that it
would no longer represent Lanier Brugh’s Pocatello,
Idaho employees after the expiration of the 1994–1997
agreement. Lanier Brugh and union officials duly au-
thorized to represent the Joint Representative met on
April 21, 1997, and agreed to delete Local 983 from the
agreement as long as the Pocatello drivers remained cov-
ered by the contract. At that time, Lanier Brugh and the
Joint Representative agreed that Lanier Brugh could list
the Pocatello drivers under the heading for Local 483 for
purposes of submitting on their behalf contractually-
required contributions to the Western Conference of
Teamsters Pension Trust.
Lanier Brugh and the Joint Representative then negoti-
ated a successor agreement, which was effective by its
terms from July 1, 1997, to June 30, 2000. Although not
a party to that agreement, Local 983 nevertheless refused
to relinquish its internal union jurisdiction over the Poca-
tello drivers and the Joint Representative also refused to
represent them, in the absence of a disclaimer of jurisdic-
tion by Local 983. Subsequently, Local 983 also in-
formed the Western Conference of Teamsters Pension
Trust that the Pocatello drivers were not covered by the
collective-bargaining agreement between Lanier Brugh
and the Joint Representative, which resulted in the Pen-
sion Trust’s refusing to accept contributions on their be-
half.
339 NLRB No. 24
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 132
III. ANALYSIS
A. Respondents’ Refusal to Represent the
Pocatello Drivers was Unlawful
We adopt the judge’s finding that all Respondents, in-
cluding Local 983, violated Section 8(b)(1)(A). The evi-
dence is clear that the Pocatello drivers were part of the
historic, systemwide unit represented by the Respon-
dents, and that Respondents refused to represent them,
and informed the Pension Trust that they were not bar-
gaining unit employees, because they exercised their
right, under Idaho’s right-to-work law, to refrain from
union membership. These actions violated Section
8(b)(1)(A).
B. Respondents, Except for Local 983, Failed
to Bargain in Good Faith with Lanier Brugh
We also adopt the judge’s finding that those Respon-
dents which constituted the Joint Representative on and
after July 1, 1997, violated Section 8(b)(3) by failing and
refusing to bargain in good faith with Lanier Brugh con-
cerning the terms and conditions of employment of its
Pocatello unit employees.3 However, we reverse the
judge’s finding that Local 983 also violated Section
8(b)(3). Section 8(b)(3) provides that it is an unfair labor
practice for a labor organization “to refuse to bargain
collectively with an employer, provided it is the repre-
sentative of his employees subject to the provisions of
[S]ection 9(a).” In light of the judge’s findings set forth
above, which we adopt, we hold that Local 983, with the
consent of Lanier Brugh and the Joint Representative,
effectively withdrew from the Joint Representative as of
June 30, 1997, the expiration date of the last collective-
bargaining agreement between Lanier Brugh and Re-
spondents to which it was a party. Thereafter, it was not
the representative of unit employees and, as a result, had
no statutory duty to bargain with Lanier Brugh concern-
ing the terms and conditions of employment of those
employees. Accordingly, there is no basis for finding
that it has violated Section 8(b)(3).4
C. Respondents’ Parol Evidence Argument
is Without Merit
Respondents assert that the parol evidence rule pre-
cludes a finding that the Pocatello drivers remained unit

3 These Respondents are: Joint Council of Teamsters Numbers 3,
28, 37, 42, affiliated with the International Brotherhood of Teamsters
on behalf of their affiliated Local Unions including but not limited to
Local Numbers 81, 206, 670, 962, 690, 741, 222, 483, 533, 961, 631,
839, and 986.
4 The 8(b)(1)(A) violations involving Local 983 do not depend on
whether it continued to represent unit employees after June 30, 1997,
and the fact that Local 983 withdrew from the Joint Representative is
therefore immaterial to our finding that it violated Sec. 8(b)(1)(A).
employees following the withdrawal of Local 983 from
the Joint Representative in 1997. We do not agree. The
Board’s 1984 certification of representative and the unit
description of the parties’ successive collective-
bargaining agreements both establish the existence of a
systemwide unit. The judge found that Lanier Brugh and
the Joint Representative orally agreed, during their 1997
negotiations, to delete Local 983 from the contract pro-
vided that the Pocatello drivers would remain in the unit.
The oral agreement is, of course, consistent with the
documentary evidence establishing the existence of a
systemwide unit, which necessarily includes the Poca-
tello drivers. Accordingly, our decision today is entirely
consistent with the parol evidence rule.5
D. Respondents’ Estoppel and Waiver Claims are
Without Merit
We also reject Respondents’ contention that Lanier
Brugh is estopped from, or has waived, its claim that the
Pocatello drivers remain in the contractual unit. Accord-
ing to Respondents, Lanier Brugh was on notice that
there was “a problem” with the status of the Pocatello
drivers as early as 1997, when the Pension Trust first
notified it that the Pocatello drivers were not covered.
As fully discussed in the judge’s decision, however, the
Pension Trust’s 1997 letter stated only that the drivers
were no longer represented by Local 983. When Lanier
Brugh listed the drivers under the heading for Local 483,
pursuant to its 1997 understanding with the Union, the
Pension Trust accepted contributions for the drivers until
May 1999. Lanier Brugh filed its first unfair labor prac-
tice charge on June 28, 1999. That charge was with-
drawn after Local 983 agreed to settle it, in October
1999, by becoming a party to the collective-bargaining
agreement retroactive to 1997 and resuming its represen-
tation of the Pocatello drivers. On November 23, 1999,
Local 983 announced that it would not honor that agree-
ment and on February 8, 2000, Lanier Brugh filed the
charge that resulted in this proceeding.
The foregoing amply demonstrates that Lanier Brugh
vigorously and consistently maintained its position that
the Pocatello drivers remained in the bargaining unit.
Although Lanier Brugh agreed to the deletion of Local
983 from the contract and from the Joint Representative,
the collective-bargaining agreement continued to encom-
pass all of the Employer’s drivers in a systemwide unit
and the Employer obtained the Joint Representative’s
explicit agreement to the continued inclusion in the unit
5 Wehr Constructors, 315 NLRB 867, 868 fn. 4 (1994), enf. denied
in part on other grounds 159 F.3d 946 (6th Cir. 1998) (Board does not
permit evidence of oral agreements that conflict with the written terms
of a collective-bargaining agreement).
JOINT COUNCIL OF TEAMSTERS 3. 28, 37, 42 (LANIER BRUGH CORP.) 133
of the Pocatello drivers. Accordingly, there is no basis
for Respondents’ claim that the doctrines of waiver or
estoppel bar the prosecution of this case.6
AMENDED CONCLUSIONS OF LAW
1. Lanier Brugh Corporation is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Respondents Joint Council of Teamsters Numbers
3, 28, 37, 42, affiliated with the International Brother-
hood of Teamsters on behalf of their affiliated Local Un-
ions including but not limited to Local Numbers 81, 206,
670, 962, 690, 741, 222, 483, 533, 961, 631, 839, 986,
and 983 are labor organizations within the meaning of
Section 2(5) of the Act.
3. Respondents Joint Council of Teamsters Numbers
3, 28, 37, 42, affiliated with the International Brother-
hood of Teamsters on behalf of their affiliated Local Un-
ions including but not limited to Local Numbers 81, 206,
670, 962, 690, 741, 222, 483, 533, 961, 631, 839, and
986, collectively known as the “Joint Representative,”
are the joint exclusive collective-bargaining representa-
tive of the following appropriate unit: “All drivers in all
business establishments owned and controlled by the
Employer.”
4. By failing and refusing to represent the Employer’s
Pocatello, Idaho unit employees, and by causing the
Western Conference of Teamsters Pension Trust to dis-
qualify the Pocatello unit employees from participation
in the Pension Trust, the Respondents have violated Sec-
tion 8(b)(1)(A).
5. By failing and refusing to bargain in good faith
with the Employer as the representative of its bargaining
unit employees, and by abrogating the terms and condi-
tions of employment contained in their collective-
bargaining agreement with the Employer with respect to
unit employees employed by the Employer at its Poca-
tello, Idaho facility, the Joint Representative has violated
Section 8(b)(3).
REMEDY
Having found that each Respondent has violated Sec-
tion 8(b)(1)(A) and that the Joint Representative (all Re-
spondents except for Local 983) has violated Section
8(b)(3), we shall order that the Respondents cease and
desist and take certain affirmative action necessary to
effectuate the policies of the Act.
Specifically, having found that the Respondents have
discriminated against the Employer’s Pocatello, Idaho
drivers by refusing to represent them and by causing the

6 See generally R.P.C. Inc., 311 NLRB 232, 233 (1993) (describing
elements of equitable estoppel).
Western Conference of Teamsters Pension Trust to dis-
qualify them from participation in the Pension Trust, we
shall order the Respondents, jointly and severally, to re-
mit to the Pension Trust, with interest, all payments re-
quired to restore the Pocatello, Idaho drivers’ accounts,
as specified in Merryweather Optical Co., 240 NLRB
1213 (1979), and to make whole the employees for all
losses suffered as a result of the discrimination against
them, in the manner set forth in Kraft Plumbing & Heat-
ing, 252 NLRB 891 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981). All payments to employees shall be
computed in the manner set forth in Ogle Protection Ser-
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest computed in the manner set forth in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
A. The National Labor Relations Board orders that the
Respondents, Joint Council of Teamsters Numbers 3, 28,
37, 42, affiliated with the International Brotherhood of
Teamsters on behalf of their affiliated Local Unions in-
cluding but not limited to Local Numbers 81, 206, 670,
962, 690, 741, 222, 483, 533, 961, 631, 839, and 986,
their officers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to represent the Employer’s Pocatello,
Idaho drivers or any other unit employees because those
employees have elected not to become union members.
(b) Informing the Western Conference of Teamsters
Pension Trust Fund that the Pocatello, Idaho drivers are
not covered by the collective-bargaining agreement and
are therefore not eligible to be participants under the
Pension Trust.
(c) Failing to bargain in good faith with Lanier Brugh
Corporation by unlawfully attempting to modify the
scope of the collective-bargaining unit without the Em-
ployer’s consent.
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, advise
the Western Conference of Teamsters Pension Trust, in
writing, that the Pocatello, Idaho drivers are covered by
the collective-bargaining agreement between the Em-
ployer and the Respondents and that the Respondents
have no objection to the Pension Trust’s receipt of con-
tributions from the Employer on behalf of those employ-
ees.
(b) Within 14 days from the date of this Order, request,
in writing, an immediate accounting from the Western
Conference of Teamsters Pension Trust of the amounts
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 134
necessary to make whole the Pension Trust accounts of
the Employer’s Pocatello, Idaho drivers so that the ac-
counts will be restored to their full value as if all periodic
contributions had been timely made and, upon receiving
the accounting, forthwith pay to the Pension Trust,
jointly and severally, the stated sums of money in the
manner set forth in the remedy section of this decision.
(c) Within 14 days from the date of a request by the
Regional Director for Region 27 of the Board, jointly and
severally make whole the Employer’s Pocatello, Idaho
drivers, with interest, for any losses they may have suf-
fered as a result of Respondents’ discrimination against
them in the manner set forth in the remedy section of this
decision.
(d) On request, bargain with the Employer as the ex-
clusive representative of the employees in the following
appropriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement: “All drivers in
all business establishments owned and controlled by the
Employer.”
(e) Within 14 days after service by the Region, post at
each Respondent’s offices and hiring halls copies of the
attached notice marked “Appendix A,”7 and mail a
signed copy of the notice to Lee Stein, S. Lee Crook,
Loren Robertson, and all other unit employees employed
by the Employer at its Pocatello, Idaho facility since No-
vember 23, 1999. Copies of the notice, on forms pro-
vided by the Regional Director for Region 27, after being
signed by the Respondents’ authorized representatives,
shall be posted by the Respondents and maintained for
60 consecutive days in conspicuous places including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondents to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(f) Sign and return to the Regional Director sufficient
copies of the notice for posting by Lanier Brugh Corpo-
ration, if willing, at all locations where notices to its em-
ployees are customarily posted.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondents have 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
B. The National Labor Relations Board orders that the
Respondent, International Brotherhood of Teamsters
Local 983, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to represent the Employer’s Pocatello,
Idaho drivers or any other unit employees because those
employees have elected not to become union members.
(b) Informing the Western Conference of Teamsters
Pension Trust Fund that the Pocatello, Idaho drivers are
not covered by the collective-bargaining agreement and
are therefore not eligible to be participants under the
Pension Trust.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, advise
the Western Conference of Teamsters Pension Trust, in
writing, that the Pocatello, Idaho drivers are covered by
the collective-bargaining agreement between the Em-
ployer and the Joint Representative and that it has no
objection to the Pension Trust’s receipt of contributions
from the Employer on behalf of those employees.
(b) Within 14 days from the date of this Order, request,
in writing, an immediate accounting from the Western
Conference of Teamsters Pension Trust of the amounts
necessary to make whole the Pension Trust accounts of
the Employer’s Pocatello, Idaho drivers so that the ac-
counts will be restored to their full value as if all periodic
contributions had been timely made and, upon receiving
the accounting, forthwith pay to the Pension Trust,
jointly and severally with the Joint Representative, the
stated sums of money in the manner set forth in the rem-
edy section of this decision.
(c) Within 14 days from the date of a request by the
Regional Director for Region 27 of the Board, jointly and
severally with the Joint Representative make whole the
Employer’s Pocatello, Idaho drivers, with interest, for
any losses they may have suffered as a result of the Re-
spondents’ discrimination against them in the manner set
forth in the remedy section of this decision.
(d) Within 14 days after service by the Region, post at
its offices and hiring halls copies of the attached notice
marked “Appendix B,”8 and mail a signed copy of the
notice to Lee Stein, S. Lee Crook, Loren Robertson, and
all other unit employees employed by the Employer at its
Pocatello, Idaho facility since November 23, 1999. Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 27, after being signed by the Respon-
8 See fn. 7, supra.
JOINT COUNCIL OF TEAMSTERS 3. 28, 37, 42 (LANIER BRUGH CORP.) 135
dent’s authorized representatives, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to
members 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) Sign and return to the Regional Director sufficient
copies of the notice for posting by Lanier Brugh Corpo-
ration, if willing, at all locations where notices to its em-
ployees are customarily posted.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX A
NOTICE TO EMPLOYEES AND MEMBERS
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 vio-
lated the Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to represent Lanier Brugh’s Poca-
tello, Idaho drivers or any other unit employees because
those employees have elected not to become union mem-
bers.
WE WILL NOT inform the Western Conference of Team-
sters Pension Trust Fund that the Pocatello, Idaho drivers
are not covered by the collective-bargaining agreement
and are therefore not eligible to be participants under the
Pension Trust.
WE WILL NOT fail to bargain in good faith with Lanier
Brugh Corporation by unlawfully attempting to modify
the scope of the collective-bargaining unit without its
consent.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL within 14 days from the date of this Order,
advise the Western Conference of Teamsters Pension
Trust, in writing, that Lanier Brugh’s Pocatello, Idaho
drivers are covered by our collective-bargaining agree-
ment with the Employer and that we have no objection to
the Pension Trust’s receipt of contributions from the
Employer on behalf of those employees.
WE WILL within 14 days from the date of this Order,
request, in writing, an immediate accounting from the
Western Conference of Teamsters Pension Trust of the
amounts necessary to make whole the Pension Trust ac-
counts of Lanier Brugh’s Pocatello, Idaho drivers so that
the accounts will be restored to their full value as if all
periodic contributions had been timely made and, upon
receiving the accounting, WE WILL forthwith pay to the
Pension Trust, jointly and severally, the stated sums of
money.
WE WILL within 14 days from the date of a request by
the Regional Director for Region 27 of the Board, jointly
and severally make whole Lanier Brugh’s Pocatello,
Idaho drivers, with interest, for any losses they may have
suffered as a result of our discrimination against them.
WE WILL on request, bargain with the Employer as the
exclusive representative of the employees in the follow-
ing appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:

All drivers in all business establishments owned and
controlled by the Employer.

JOINT COUNCIL OF TEAMSTERS NUMBERS 3, 28,
37, 42, AFFILIATED WITH THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS ON BEHALF OF
THEIR AFFILIATED LOCAL UNIONS INCLUDING
BUT NOT LIMITED TO LOCAL NUMBERS 81, 206,
670, 962, 690, 741, 222, 483, 533, 961, 631, 839, AND 986
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
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 vio-
lated the Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 136
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to represent Lanier Brugh’s Poca-
tello, Idaho drivers or any other unit employees because
those employees have elected not to become union mem-
bers.
WE WILL NOT inform the Western Conference of Team-
sters Pension Trust Fund that the Pocatello, Idaho drivers
are not covered by the collective-bargaining agreement
and are therefore not eligible to be participants under the
Pension Trust.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL within 14 days from the date of this Order,
advise the Western Conference of Teamsters Pension
Trust, in writing, that Lanier Brugh’s Pocatello, Idaho
drivers are covered by the collective-bargaining agree-
ment between Lanier Brugh and Joint Council of Team-
sters Numbers 3, 28, 37, 42, affiliated with the Interna-
tional Brotherhood of Teamsters on behalf of their affili-
ated Local Unions including but not limited to Local
Numbers 81, 206, 670, 962, 690, 741, 222, 483, 533,
961, 631, 839, and 986, collectively known as the “Joint
Representative,” and that we have no objection to the
Pension Trust’s receipt of contributions from the Em-
ployer on behalf of those employees.
WE WILL within 14 days from the date of this Order,
request, in writing, an immediate accounting from the
Western Conference of Teamsters Pension Trust of the
amounts necessary to make whole the Pension Trust ac-
counts of Lanier Brugh’s Pocatello, Idaho drivers so that
the accounts will be restored to their full value as if all
periodic contributions had been timely made and, upon
receiving the accounting, WE WILL forthwith pay to the
Pension Trust, jointly and severally with the Joint Repre-
sentative, the stated sums of money.
WE WILL within 14 days from the date of a request by
the Regional Director for Region 27 of the Board, jointly
and severally with the Joint Representative make whole
Lanier Brugh’s Pocatello, Idaho drivers, with interest, for
any losses they may have suffered as a result of our dis-
crimination against them.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS
LOCAL UNION 983

Nancy S. Brandt, Esq., for the General Counsel.
Stephen W. Cook, Esq. (Stephen W. Cook, P.C.), of Salt Lake
City, Utah, for the Respondent Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice a hearing in this matter was held before me in Salt
Lake City, Utah, on November 28, 2000. The charge was filed
by Lanier Brugh Corporation (the Employer), on February 8,
2000, and an amended charge was filed on May 24, 2000.
Thereafter, on May 31, 2000, the Regional Director for Region
27 of the National Labor Relations Board (the Board), issued a
complaint and notice of hearing alleging violations by the cap-
tioned unions (Respondent, Union, or Joint Representative), of
Section 8(b)(1)(a) and (3) of the National Labor Relations Act
(the Act). The Respondent, in its answer to the complaint, duly
filed, denies that it has violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine, and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (the Gen-
eral Counsel), and counsel for the Respondent. Upon the entire
record, and based upon my observation of the witnesses and
consideration of the briefs submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer, a corporation, maintains principal place of
business in Portland, Oregon, and is engaged in the business of
delivering mail in and between the States of Colorado, Nevada,
Utah, Idaho, Washington, California, and Oregon as a contract
mail carrier for the U.S. Postal Service. The Employer annu-
ally purchases and receives good valued in excess of $50,000
directly from points and places located outside the State of
Oregon, and annually derives gross revenues in excess of
$50,000 from the transpiration of mail in interstate commerce
under arrangement with, and as an agent for, the U.S. Postal
Service (USPS), which operates between various States in the
United States, and functions as an essential link in the transpor-
tation of mail in interstate commerce. It is admitted and I find
that the Employer is and at all material times has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that at all material times the Respon-
dent Union is and has been a labor organization within the
meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this proceeding are whether the Re-
spondent Union has violated Section 8(b)(1)(a) and (3) of
JOINT COUNCIL OF TEAMSTERS 3. 28, 37, 42 (LANIER BRUGH CORP.) 137
the Act by failing and refusing to represent certain employees
and by attempting to cause the Teamsters Pension Trust to dis-
qualify the employees from coverage under the pension trust
provisions of the collective-bargaining agreement; and by
unlawfully attempting to modify the scope of the bargaining
unit and thereby failing to bargain in good faith with the Em-
ployer.
B. The Facts
Since about 1937, the Employer has been a contractor en-
gaged in the business of delivering mail for the USPS. Over
the years the Employer’s postal service contracts have prolifer-
ated, and currently the Employer has some 20 contracts with
the USPS, operates in some seven States, and employs a total of
approximately 160 drivers, 80 of whom are full time and 80 of
whom are part-time or casual drivers. In the 1950s the Em-
ployer entered into its initial collective-bargaining agreement
with Local 81 of the Teamsters Union. Since that time the
names of various local unions and joint councils have been
added to the collective-bargaining agreement as the Employer
has acquired various routes and hired drivers from and within
the geographic jurisdiction of other Teamsters locals.1 One
such local union is Local 983, which maintains its office and
hiring hall in Pocatello, Idaho.
In 1984, a decertification petition was filed by an individual
in Case 36–RD–1036. A representation hearing was held fol-
lowed by a representation election. The systemwide scope of
the unit was an issue in that proceeding. On November 21,
1984, the Joint Representative (at that time consisting of some
seven local unions) was certified as the collective-bargaining
representative of the following systemwide unit of employees:

All drivers employed by Lanier Brugh Corporation and dis-
patched from its Portland, Oregon facility to routes in Oregon,
Washington, Nevada, Idaho, Colorado and California, and all
mechanics employed at the Portland facility; excluding office
clerical employees, guards and supervisors as defined in the
Act.

Since at least 1986, and thereafter during the course of suc-
cessive collective-bargaining agreements, the introductory
paragraph of the contract has stated: “THIS AGREEMENT is
entered into by and between LANIER BRUGH
CORPORATION, hereinafter referred to as the Employer and
JOINT COUNCIL OF TEAMSTERS NUMBERS 3, 28, 37,
AND 42, affiliated with the INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS on behalf of their affiliated Local
Unions including but not limited to . . . referred to herein as the
Union.” Article 1, the “Recognition and Union Membership”
provision of the contract, has contained the following language:
“The Union is recognized as the sole collective bargaining rep-
resentative for all drivers in all business establishments owned
and controlled by the Employer.” Further, under the “Pension”
provision of the contracts, the parties have agreed that “The
Employer shall pay into the Western Conference of Teamsters
Pension Trust Fund on account of each member of the bargain-

1 The Union, as joint exclusive collective-bargaining representative,
currently consists of 4 joint councils and 13 or 14 (with the inclusion of
Local 983) local unions.
ing unit the following amounts . . . .” Additionally, seniority,
including bidding on positions or routes, has always been on a
systemwide basis. Thus, for example, a qualified employee in
California would be entitled to a job opening in Pocatello,
Idaho, where Local 983 maintains its office. Finally, each of
the contracts has contained a union security clause mandating
union membership after 30 days of employment.
The Employer has employed one full-time and one or two
part-time or “casual” drivers on routes to and from Pocatello,
Idaho (Pocatello drivers), a city within the geographical juris-
diction of Local 983. None of the Pocatello drivers have opted
to become members of Local 983.2 The representation of these
employees did not appear to present a problem until Robert
Lee, formerly a business agent for Local 983, became secre-
tary/treasurer of that local. Lee testified that upon being elected
to the position of secretary/treasurer in 1995, and thereby
becoming the chief executive officer, he undertook, in effect, a
costs-benefits analysis of the Lanier Brugh contract insofar as it
pertained to his Local, and determined that it did not make
economically sound business sense to continue representing the
Pocatello drivers.
Lee testified that he convinced the Local’s executive board
that the continued representation of the 2 or 3 Pocatello drivers
adversely impacted his 1200-member local Union, and that the
local’s “accommodating this particular contract for over 12
years” should not continue beyond the contract termination date
of June 30, 1997. Thus, because the employees were not union
members they could not vote to ratify any proposed contract,
and could not even make contract proposals, and, according to
Lee, it was impossible for the local to fairly represent them and
“for us to be at the negotiation table.”3 Maintaining a file on
the employees, sending out the contract reopening letter every 3
years, and other office expenses such as postage and tele-
phones, were added factors to be considered. In summary,
according to Lee, the potential risk and liability attendant to the
Local’s duty to fairly represent the employees simply was not
worthwhile or justified. Moreover, according to Lee, even if
the Pocatello drivers had been dues-paying members of the
Union, economic reality would have dictated that the local file
a disclaimer of interest as this contract “wasn’t good. It was an
adverse impact to the people that elect me.”
On March 20, 1997, a month prior to the scheduled negotia-
tions for a successor contract, Lee sent a letter to the Employer
stating that:

Teamsters Local 983 will no longer represent the employees
of Lanier Brugh Corporation after the expiration of the current
labor contract.
.
2 Since 1986, Idaho has been a “right-to-work” State; thus, union
membership is by law mandated to be entirely voluntary and may not
be involuntarily imposed by a union-security clause in a contract
requiring union membership as a condition of employment
3 In fact the record shows that Local 983 was never at the negotiat-
ing table and that in fact many of the local unions that were parties to
the contract never attended negotiating sessions. Because wages and
other significant matters were dictated by Department of Labor guide-
lines, negotiating sessions were historically routine, pro forma meetings
of short duration.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 138
Teamsters Local 983 thus will also no longer enter into
a contract agreement with Lanier Brugh Corporation nor
will be a party to enter into any other contract agreements
which includes both the Oregon Teamster Employers
Trust and the Western Conference of Teamsters Pension
Trust Fund.

The bargaining session for a 3-year successor contract was
held on April 21, 1997. The Employer was represented by
Gary Witter, controller/vice president, and Troy Brugh, presi-
dent and secretary. Eric Slind, business representative for Lo-
cal 690, was selected by the various constituent unions to be the
chairman of the Union’s negotiating committee. Other business
representatives were also in attendance.
Gary Witter testified that part of his duties as controller in-
volves collective bargaining and administration of the collec-
tive-bargaining agreement with the Union. He has been in-
volved in negotiating all agreements since 1989. At the negoti-
ating session of April 21, 1997, Witter asked Slind what his
authority was, and Slind said that he was representing all of the
locals. During a preliminary conversation, prior to the meeting
being called to order and everyone sitting down at the table,
Slind placed on the table a copy of Lee’s aforementioned
March 20, 1997 disclaimer letter, and asked Witter and Brugh,
who was sitting next to Witter, whether they had any problem
with deleting Local 983 from the agreement. Witter, who had
received a copy of Lee’s letter prior to that date and was famil-
iar with it, replied that there was no problem as long as the
Pocatello drivers remained covered under the contract. Then he
asked Slind what local number to place beside the Pocatello
employees as it was necessary to indicate on the trust fund pen-
sion contribution reports, submitted on a regular basis to the
trust fund, the local to which each employee was assigned.
Slind replied, according to Witter, that Witter should just enter
on the form the next nearest local union that was a party to the
contract. Witter assumed this was the Boise local.4 Indeed, the
Pocatello drivers were driving routes between Pocatello and
Boise. Nothing more was said about the matter.5
Witter testified that over the years the Union has added and
removed local unions from the contract as it saw fit when locals
would dissolve and/or merge, and when the Employer ex-
panded its operations into the geographic jurisdiction of other
locals. Such matters have never been an issue in negotiations;
in fact, the Employer had been told that the internal administra-
tion of the Union and its constituent locals, and the modifica-
tion of the contracts’ preamble or introductory language reflect-
ing such changes, was of no concern to the Employer. Thus,
Witter did not consider the removal of Local 983 from the con-
tract to be of any significance at the time.
Troy Brugh testified that at the negotiating session on April
21, 1997, at the Portland, Oregon conference room of Local 81,
prior to the opening of the meeting, as people were walking

4 While it appears that the office of the Salt Lake City, Utah local is,
in fact, closer to Pocatello, this is immaterial to the conclusions reached
herein.
5 Both Slind and Mark Tracy, business representative for Local 533,
another signatory local, testified that in fact there was no such conver-
sation about this matter at the meeting on April 21, 1997.
around, getting coffee, and taking their seats, Slind presented
the Local 983 disclaimer letter and asked if there was any prob-
lem with it. Brugh and Witter replied that there was no prob-
lem with what Local 983 wanted to do so long as the drivers
were covered under the contract and continued to be covered
under the health and welfare and pension funds of the contract.
Slind replied that the Employer could assign these contributions
“to the nearest Local to that [Pocatello] area” on behalf of the
Pocatello drivers, and went on to identify the Boise Local as the
appropriate Local in this regard. Slind went on to say that the
elimination of Local 983 from the contract was the Union’s
responsibility and it would be taken care of. Brugh recalled
that he was satisfied with this commitment by Slind, on behalf
of the Union, because absent such a commitment the Employer
could not have moved forward with negotiations.6 Then nego-
tiations commenced and were concluded the same day with
agreement on a 1997–2000 contract. The agreement was
signed on September 5, 1997.7
As Slind had suggested, the Employer thereafter “assigned”
the Pocatello employees to the Boise local, Local 483, when it
submitted the applicable pension trust forms and contributions
to the Pension Trust. No further thought was given to the mat-
ter for the ensuing 18 months. Then, on May 28, 1999, the
Pension Trust sent a letter to the Employer stating that the Em-
ployer’s contributions on behalf of the three Pocatello drivers
from July 1, 1997, through March 30, 1999, “appear to be in
error and unacceptable to the Trust. It appears that the refer-
enced individual(s) have not been performing work covered by
the collective bargaining agreement for the period in question.”
Shortly after receiving this letter Witter and Brugh phoned
Greg Thompson, a representative of the Pension Trust, who
apparently said that he would check with Boise Local 483 re-
garding coverage of the Pocatello drivers. Then Witter and
Brugh, in a conference call, both spoke with Slind. Witter re-
minded Slind of the foregoing conversation they had had at the
outset of the April 21, 1997 negotiating session regarding the
matter of coverage for the Pocatello drivers. Slind said that he
did not recall the conversation; but he further said that he would
look into the matter and try to get it straightened out, and would
get back to Witter. He did not do so. After speaking with
Slind, Witter phoned Phil Ferguson, business agent for Boise
Local 483. Ferguson indicated that he had previously received
a call from Thompson regarding the matter. Witter explained
that Local 983 did not want to represent the Pocatello employ-
6 Brugh testified that the contractual arrangement between the Em-
ployer and the USPS is dictated by Department of Labor (DOL) guide-
lines and wage determinations: Under government contracting proce-
dure any wage rates and fringe benefits must be approved and sanc-
tioned first by the DOL and then, after negotiations are completed, by
both the USPS and the DOL; further, it is mandated by these Federal
agencies that 100 percent of the drivers within any given collective-
bargaining unit must be covered by the same terms and conditions of
employment. Thus, eliminating the Pocatello employees from coverage
under the Union contract by making them ineligible for contractual
fringe benefits could, in turn, cause the USPS to refuse to renew the
Employer’s carrier contracts with the USPS.
7 A current contract, which has been negotiated but not yet ratified,
extends from July 1, 2000, to June 30, 2005.
JOINT COUNCIL OF TEAMSTERS 3. 28, 37, 42 (LANIER BRUGH CORP.) 139
ees. Ferguson, according to Witter, offered to accept the Poca-
tello drivers “for a fee,” providing that a document was signed
whereby Local 983 would relinquish its jurisdiction over the
Pocatello drivers and cede jurisdiction to the Boise local. Fer-
guson said that he would phone Robert Lee and see if an ar-
rangement could be worked out for the transfer. Within a few
days Ferguson phoned Witter and said that Lee refused to enter
into such an arrangement.
Thereupon, Witter phoned Ken Thompson, who at the time
was the current chairman of the Union’s negotiating committee
as well as business agent for Local 741, another constituent
local. Thompson said that he did not know what to make of the
matter, but that his local would represent the Pocatello drivers
provided he got the jurisdictional transfer from Lee. Thompson
said that he would check on the matter and get back to Witter.
He did not do so.
The Employer then received another letter from the Pension
Trust, dated June 15, 1999, again stating that the Employer’s
contributions on behalf of the Pocatello drivers are “unaccept-
able.” And on June 21, 1999, the Employer received a pointed
letter from Lee suggesting, inter alia, that the Employer was
improperly “disguising” the fact that Local 983 no longer
represents the Pocatello drivers, and is committing “fraud” by
falsely representing to the Pension Trust that the Pocatello driv-
ers are covered by the contract as a result of their affiliation
with a sister local.
Following these communications, the Employer, on June 28,
1999, filed the following charge with the Board (Case 27–CB–
4016–2). Because the “Basis of the Charge” language is ex-
plicit and presents the sequence of events in a concise manner,
and is also relevant to credibility matters, it is set forth in full:

During the past month the Teamsters Union and the Western
Conference of Teamsters Pension Trust have informed us that
three of our employees (who are part of the collective bar-
gaining unit) cannot participate in the company Pension and
Health & Welfare plans because they work in the jurisdiction
of Local 983 Pocatello, Idaho.
Local 983 notified the Union in 1997, during contract
negotiations, that they did not want to continue to be a
party to the Lanier Brugh labor contract. Their Local
number was removed from the contract and the Union ne-
gotiating committee told Lanier Brugh to shift the contri-
butions for these employees to the nearest jurisdiction
which was Local 483 Boise, Idaho. After a recent pension
audit, it was noted that contributions for the Pocatello em-
ployees were being reported as Local 483. The Pension
Trust send [sic] a letter dated May 28, 1999 to Lanier
Brugh Corporation stating the contributions could not be
accepted and would be returned to the employees. The
Pension Trust will not accept contributions on three Poca-
tello employees because the local in that jurisdiction
elected not to represent them. Our three Pocatello em-
ployees chose not to join the Union because of being in a
“right to work” state. When our full-time employee Mr.
Crook did attempt to join the Local 983 on June 19, 1999
in an effort to keep his pension in tact, he was denied
membership.
We believe that all Lanier Brugh employees which are
truck drivers are part of the collective bargaining unit have
a right to pension contributions and cannot be denied be-
cause they did not join the Union (“right to work” state
only) or work out of a jurisdiction not currently included
in the Labor contract.

Witter testified that the Employer was subsequently advised
by a Board agent from the Board’s Regional Office that the
matter had been resolved in favor of the Employer’s position.
The Board agent thereupon solicited the Employer to withdraw
the charge and the Employer did so. On September 23, 1999,
the Regional Office issued a letter, signed by the Regional
Director, that the captioned matter had been withdrawn.
On October 14, 1999, Lee, on behalf of Local 983, wrote a
letter to Greg Thompson, Contract Review, of the Western
Conference of Teamsters Pension Trust Fund, with copies to
the Employer and the Board’s Regional Office, inter alia, as
follows:

Please be advised that a tentative agreement and resolution
has been reached between Teamster Local 983 and Lanier
Brugh Corporation.
The agreement includes that Teamster Local 983 will
rescind its letter of disinterest and will agree to be a party
to the Lanier Brugh labor contract dating back to 1997.
This understanding should secure the pension contribu-
tions which were paid into the trust from 1997 to the pre-
sent.
. . . .
Again, this agreement is tentative and when formalized
it may only be inclusive up to the contract expiration.

Witter testified that as far as the Employer was concerned
this was the end of the matter, and he was not advised by any-
one that the Employer was expected to do anything further to
“formalize” the “tentative” agreement as Lee had expressed in
his letter. Indeed, there was no “agreement” to be “formalized”
as far as he knew. On October 27, 1999, Greg Thompson, su-
pervisor, contract review, of the Pension Trust, sent a letter to
Lee, with a copy to the Employer, stating that the Pension Trust
had received Lee’s October 14, 1999 letter concerning the ten-
tative agreement, and that, “We will need to receive written
documentation that Local 983 is party to the July 1, 1997 to
June 30, 2000 labor agreement. Please forward a fully exe-
cuted agreement within thirty (30) days.” The Union did not
contact the Employer or send the Employer a revised contract
including the name of Local 983 as one of the signatory locals.
Then, on November 23, 1999, Lee wrote another letter to
Thompson, with a copy to the Employer, the Regional Office of
the Board, the president of Union Joint Council 3, Ralph
Taurone, and others, stating, inter alia, as follows:

Last month, you sent correspondence to Local 983 outlining
that a formalized document needed to be in place so that the
pension contributions could be retained for the Pocatello
Lanier Brugh employees dating back to 1997. This request
was made [sic] to have completed within 30 days. Over 30
days later, as of this date and time, neither Lanier Brugh nor
its Pocatello employees have communicated to this local un-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 140
ion that they in fact want to formalize the tentative agreement
which was negotiated by concerned and interested parties.
. . . .
So within the guidelines of that Taft-Hartley [Act]
(1947), they [the Pocatello drivers] want to exercise the
right to join a union and within the guidelines of 14b and
extended into Idaho’s Right-to-Work-Law, they want to
exercise their right to not join a union.
They have both rights under the NLRA and the Right-
to-Work-Law. However, it appears that their intent as of
this date circumvents and abuses the NLRA which is the
basis of their constitutional rights.
They, in essence say that they want the right to join a
union to experience all aspects of the collective bargaining
agreement, but in evidence [sic] do not want to join, and
will not. They want to attach themselves as a “rider,” even
without a bargaining representative. This is very danger-
ous for employers with this precedence . . . .
Secondly, the Pocatello employees and Lanier Brugh
company have not shown either appreciation or receptive-
ness to the hard work that the NLRB, Joint Council 3, Mr.
Ralph Taurone, Local 983, and Steve Cook, Attorney-at-
Law completed in the attempt to find a resolution.
. . . .
In conclusion, the NLRB, the Joint Council, and this
Local Union attempted to resolve this issue in good faith,
but yet the Lanier Brugh Company and its Pocatello em-
ployees only want to really not have a bargaining repre-
sentative but yet attach themselves as a “rider” to the labor
contract just because they perform bargaining unit work.
This is an injustice to the intent of why the NLRA was
created. It is the right to join a union, and to collectively
bargain, not to abuse the right to join and collectively bar-
gain by being a rider. For after all the dust is settled can
the bargaining representative bargain when the Pocatello
employees have no input or voting power on the agree-
ment? The answer is no. Therefore, due to the lack of in-
terest by Lanier Brugh and its Pocatello employees; [sic]
Local 983 through the input of its Local executive board
and its membership has no interest in entering into a for-
mal contract agreement with Lanier Brugh or its employ-
ees.
It would be an injustice to the nearest Local Union
(Local 222—Salt Lake City) to assume the risk and liabil-
ity for these employees, so this local union [Local 983]
will retain its jurisdiction within all geographical bounda-
ries pertaining to Lanier Brugh, but will however continue
to severe [sic] any and all contractual relationships as so
terminated in 1997 within guidelines of the NLRA.

The Employer understood this letter to state, insofar as the
Employer was concerned, that Local 983 was reneging on its
“tentative” agreement to resolve the unfair labor practice
charge against it and the Union. Then, the Pension Trust, on
December 9, 1999, wrote to the Employer and advised that as
there had been no final resolution of the matter regarding the
inclusion of the Pocatello drivers under the contract, the said
employees were therefore ineligible for coverage by the Pen-
sion Trust. Simultaneously, the Pension Trust refunded certain
Employer trust fund contributions directly to these employees.8
Thereupon, on February 8, 2000, the Employer filed the in-
stant charge in this matter.
C. Analysis and Conclusions
As noted above, in 1984 the Board certified the Union as the
exclusive representative of all the Employer’s drivers on a sys-
temwide basis because of the systemwide integration of the
Employer’s operations. Thereafter, the successive collective-
bargaining agreements have reflected this systemwide unit.
Since at least 1986, and thereafter during the course of succes-
sive collective-bargaining agreements, the “Recognition and
Union Membership” provision of the contract has contained the
following language: “The Union is recognized as the sole col-
lective bargaining representative for all drivers in all business
establishments owned and controlled by the Employer.” Fur-
ther, such contracts have recognized systemwide seniority as
governing the rights of employees to bid on positions and move
from location to location.
The Union, in its brief, agrees with the well-established
principle that a party may not insist to impasse on a change in
the scope of an established collective-bargaining unit because
the scope of a unit is a nonmandatory subject of bargaining.
Reichhold Chemicals, Inc., 310 NLRB 1228 (1991); Boston
Edison Co., 290 NLRB 549, 553 (1988). However, the Union
maintains that the Employer’s acquiescence in deleting Local
983 from the introductory paragraph of the contract constituted,
in effect, an implied agreement to alter article 1, the “Recogni-
tion and Union Membership” provision, which sets forth and
confirms the historic systemwide scope of the unit; therefore,
according to the Union’s rationale, the Employer thus voluntar-
ily excluded from the unit scope all those employees within the
jurisdiction of Local 983, namely the Pocatello drivers.
Clearly the Employer made no such agreement, either ex-
plicit or implied. In fact, the Employer made it abundantly
clear to Slind, as the designated spokesperson for the Joint Rep-
resentative, that it did not care whether Local 983 was or was
not a party to the contract so long as the Pocatello drivers, who
had been covered by the contract for many years in the past,
continued to be covered by the contract in the future. As Brugh
testified, the Union had made it clear that it considered the
introductory clause of the contract to be the Union’s bailiwick
to change and modify as it saw fit by adding and/or deleting
signatory unions over time; changes of this sort made no
substantive difference. But the matter of unit scope was of no
little significance to the Employer, as the exclusion of any
drivers from coverage under the contract was critical to the
continued viability of the Employer’s carrier contract with the
USPS, that is, to the Employer’s very existence; and the
Employer not only did not, but could not, agree to this.

In this regard, I credit the testimony of Witter and Brugh.
Both appeared to have a clear recollection of their conversation
with Slind at the outset of the April 21, 1997 negotiating meet-
ing. I am mindful of the fact that, as the Union points out in its
8 It appears that because of applicable tax laws the employees were
required to pay Federal income tax on the refunded trust proceeds.
JOINT COUNCIL OF TEAMSTERS 3. 28, 37, 42 (LANIER BRUGH CORP.) 141
brief, the testimony of Witter and Brugh regarding this conver-
sation is not identical. Thus, Witter testified that Slind, when
asked which local union number to place beside the names of
the Pocatello drivers on the pension trust forms, replied that the
Employer should assign the Pocatello drivers to the next nearest
local union without specifically mentioning the Boise local,
while Brugh testified that Slind replied that the Employer could
assign these contributions to the nearest local on behalf of the
Pocatello drivers, and went on to identify the Boise Local as the
appropriate local in this regard. This subtle variation in testi-
mony is certainly understandable given the fact that the conver-
sation had occurred some 3-1/2 years in the past. What is of
overriding importance, however, is that both Witter and Brugh
credibly testified, I find, that such a conversation did in fact
occur and that Slind, on behalf of the Joint Representative,
assured the Employer that the Pocatello drivers would continue
to be covered under the contract and should be assigned by the
Employer to some local other than Local 983. I do not credit
the denials of Slind and Tracy that no such conversation oc-
curred.
Further, I do not credit the testimony of Lee, Slind, or Tracy
to the effect that it is virtually impossible for one local union to
cede jurisdiction over employees, for representation purposes,
to another local. Abundant record evidence shows that while
geographical jurisdiction is certainly jealously guarded, the
only obstacle to ceding representational jurisdiction is, perhaps,
the willingness of the local unions to agree to the arrangement;
although, as the record shows, even this may not be necessary.
Thus Slind, I have found, immediately advised the Employer to
reassign the Pocatello drivers from Local 983 to the Boise local
even before he sought the agreement of either of those locals.
It is reasonable to assume that Slind would not have made such
a statement if he believed he had no authority to do so.
In addition, the conversations that Witter and Brugh had with
other business representatives is significant. They both spoke
with Phil Ferguson, business agent for Boise Local 483, regard-
ing the matter. When Witter explained that Local 983 did not
want to represent the Pocatello employees, Ferguson, according
to Witter, offered to accept the Pocatello drivers “for a fee,”
providing that a document was signed whereby Local 983
would relinquish its jurisdiction over the Pocatello drivers and
cede jurisdiction to the Boise Local. Further, Ferguson said
that he would phone Robert Lee and see if an arrangement
could be worked out for the transfer. Within a few days, Fergu-
son phoned Witter and said that Lee refused to enter into such
an arrangement. Then Witter phoned Ken Thompson, who at
the time was the current chairman of the Union’s negotiating
committee as well as business agent for Local 741, another
constituent local. Thompson said that he did not know what to
make of the matter, but offered, on behalf of Local 741, to rep-
resent the Pocatello drivers provided he got the jurisdictional
transfer from Lee. Thompson said that he would check on the
matter and get back to Witter. He did not do so. Thus, two
different business agents, one of whom was the chairman of the
Union’s negotiating committee at the time, voluntarily offered
to accept the Pocatello drivers into their locals provided this
arrangement was satisfactory to Lee. As neither Thompson nor
Ferguson testified in this proceeding, the testimony of Witter
and Brugh stands unrebutted. Lastly, Lee, in his November 23,
1999 letter to the Pension Trust, does not state that the various
charters and internal rules governing the interrelationship of
locals precludes the ceding of representational jurisdiction.
Rather, as set forth above, he affirms that Local 983 will not do
so because

[i]t would be an injustice to the nearest Local Union (Local
222—Salt Lake City) to assume the risk and liability for these
employees, so this local union [Local 983] will retain its juris-
diction within all geographical boundaries pertaining to
Lanier Brugh, but will however continue to severe [sic] any
and all contractual relationships as so terminated in 1997
within guidelines of the NLRA.

From the foregoing it is crystal clear that the only obstacle to
the arrangement initially proposed by Slind in April 1997,
whereby the Pocatello drivers would be transferred for pension
trust reporting purposes and other representational purposes to
another local, is the obstacle imposed by Lee’s refusal to permit
the Pocatello drivers to be represented by any other constituent
local. Indeed, it appears that the Union has given Lee full au-
thority over this matter and has agreed to let Lee speak for the
Joint Representative as well as its constituent locals.
What Lee emphasized during his testimony is that Local 983
did not want to represent the Pocatello drivers because of the
economics of the situation vis-à-vis his local. However, there
is no adverse economic impact to Local 983 if Local 983 no
longer represents these employees. Therefore, I conclude, there
is some other reason for Lee’s refusal to cede jurisdiction to
other willing locals that, insofar as the record shows, have
voiced no similar concerns. The only reasonable conclusion
under the circumstances, as supported by abundant record evi-
dence, is that Lee’s actions have been motivated by the fact that
the Pocatello drivers have elected not to become members of
Local 983; this is their right under Idaho’s right-to-work stat-
ute, and neither the Union nor the Employer may interfere with
this right. To deny union representation and contractual bene-
fits to employees for this reason is clearly unlawful.
As the General Counsel has presented convincing evidence
that the Union, with Lee as its de facto spokesman, is attempt-
ing to retaliate against the Pocatello drivers by denying them
benefits under the pension trust because of their non-
membership in Local 983, it is incumbent upon the Union,
under the Board’s Wright Line9 decision, to show that in fact it
would have taken the same action even if the Pocatello drivers
had at all times been members of the Union. I do not credit
Lee’s self-serving testimony that it was virtually impossible to
cede jurisdiction to another local; abundant record evidence
shows that in fact, assuming that the formality of ceding juris-
diction it is even necessary under the circumstances herein, it is
a simple matter of consent between local unions. Nor do I
credit Lee’s testimony that he would have taken the same ac-
tion even if the Pocatello drivers had in fact been members of
the Union; such testimony that a responsible, self-respecting,

9 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 142
elected union official would deny pension benefits to a long
time union brother under the circumstances herein simply de-
fies credulity and is unsupported by other credible evidence.
On the basis of the foregoing, I find that the Union, including
Local 983, has not met its burden of proof under Wright Line.
It is clear that, as stated by the Board in Laborers Local 101
(Bake-Line Products), 329 NLRB 247 (1999), “an exclusive
bargaining agent may, for economic or other valid reasons,
avoid its statutory duty to bargain on behalf of the unit it repre-
sents by unequivocally and in good faith disclaiming further
interest in representing the unit,” providing that the disclaimer
is not made for an improper purpose. Here the Joint Represen-
tative, not its constituent Local 983, is the “exclusive bargain-
ing agent” of the unit employees, and there is no contention that
the Joint Representative ever disclaimed interest in representing
the systemwide unit. Moreover, any such disclaimer must be
“unequivocal” and in “good faith.” Here there is no unequivo-
cal disclaimer because any disclaimer must be coextensive with
the recognized or, in this case, certified unit, and because the
Employer was told that Local 983’s disclaimer would not affect
the rights of the Pocatello drivers; and, precisely because the
disclaimer was made for an improper, discriminatory, and
unlawful purpose, as found above, it has not been made in good
faith. Accordingly, on the basis of the foregoing, I find that by
such conduct the Joint Representative and its constituent Local
983 have violated Section 8(b)(1)(a) and (3) of the Act as al-
leged.
The Respondent maintains that the Employer’s charge is
time barred by Section 10(b) of the Act. Clearly the Employer
was not aware of any problem from April 21, 1997, when Local
983 withdrew from the contract, until May 28, 1999, when the
Employer received a letter from the Pension Trust stating that
the contributions on behalf of the three Pocatello drivers from
July 1, 1997, through March 30, 1999, “appear to be in error
and unacceptable to the Trust. It appears that the referenced
individual(s) have not been performing work covered by the
collective bargaining agreement for the period in question.”
Immediately following the receipt of this letter the Employer
attempted to resolve the matter. Then, being put off by the Un-
ion, it filed a charge with the Board on June 28, 1999, in Case
27–CB–4016–2. After being assured by a representative of the
Regional office that the matter had been resolved, the Employer
was solicited to withdraw the charge, which it did. Following
these events, it was not until receipt of a copy of Lee’s forego-
ing letter to the Pension Trust dated November 23, 1999, that
the Employer was indirectly advised that, in substance, Lee was
reneging on his agreement to settle the Board charge. There-
upon, on February 8, 2000, the Employer filed the instant
charge in this matter.
The gravamen of the Employer’s charge, upon which the
complaint is based, is not the fact that Local 983 no longer
wanted to represent the Pocatello drivers and elected to with-
draw as a signatory to the contract; this makes no difference.
Rather, it is the refusal of the Union, including Local 983, to
permit the Pension Trust to receive and apply the Employer’s
pension contributions to the trust fund accounts of the Pocatello
drivers; this, in effect, excludes them from coverage under the
contract and makes a great deal of difference. This occurred on
and after November 23, 1999. Prior to that time the Pension
Trust had accepted the contributions on behalf of the Pocatello
drivers. As the charge was filed on February 8, 1999, it was
well within the 10(b) 6-month limitation period. Accordingly, I
find the Respondent’s 10(b) argument to be without merit.
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union and Local 983 are labor organizations within
the meaning of Section 2(5) of the Act.
3. The Union and Local 983 have violated Section 8(b)(1)(a)
and (3) of the Act as alleged in the complaint.
THE REMEDY
Having found that the Union and Local 983 have violated
and are violating Section 8(b)(1)(a) and (3) of the Act, I rec-
ommend that they be required to cease and desist therefrom and
in any other like or related manner restraining or coercing em-
ployees in the exercise of their rights under Section 7 of the
Act, and to cease and desist from refusing to bargain in good
faith with the Employer. The Union and Local 983 shall be
required to advise the Pension Trust that the Pocatello drivers
are a part of the collective-bargaining unit and that there is no
objection to the Pension Trust’s acceptance of the Employer’s
contributions on behalf of the Pocatello drivers. Further, the
Union and Local 983 shall make whole the pension trust ac-
counts of the Pocatello drivers in the amounts necessary to
restore the said accounts to their full value as if all periodic
contributions had been timely made. Further, the Union and
Local 983 shall be required to reimburse the Pocatello drivers,
with interest, for any amounts they expended for payment of
taxes, supplemental outlays for other retirement accounts, or
other expenses they may have incurred as a result of the Un-
ion’s and Local 983’s discrimination against them. Finally, the
Union and Local 983 shall be required to post an appropriate
notice, attached hereto as “Appendix,” and to mail signed cop-
ies of the notice to each of the Pocatello drivers; and, in addi-
tion, to provide sufficient signed notices for the Employer to
post and/or distribute to its employees should it be willing to do
so.
[Recommended Order omitted from publication.]