Teckwal Corp.

National Labor Relations Board - Board Decisions

Nov 3, 1980

253 N.L.R.B. 187 (N.L.R.B. 1980)

I'FTCKWAIL C()RI)
Teckwal Corp. and Chauffeurs, Teamsters, Warehou-
semen and Helpers, Local Union No. 301, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Case 13-CA- 19074
November 3, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING ANDI MIAMBtRS
JENKINS AND PNIO:I.O
On June 30, 1980, Administrative Law Judge
Robert M. Schwarzbart issued the attached Dcci-
sion in this proceeding. Thereafter. Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
AMINDFD REFiM)NI '
The Administrative Law Judge, in recommend-
ing that Respondent make its employees whole for
any loss of earnings suffered because of Respond-
ent's failure to sign and implement the agreement
reached between the Union and the Material Han-
dling Employers Association, recommended the
backpay be computed in accordance with F W.
Woolworth Company, 90 NLRB 289 (1950). We
shall order that backpay be computed in a manner
consistent with Board policy as set forth in Ogle
Protection Service, Inc., and James L. Ogle, an Indi-
vidual, 183 NLRB 682 (1970), with interest as pre-
scribed in Florida Steel Corporation, 231 NLRB 651
i Respondenl has excepted to certain credibility findings made by the
Administratlne I.av. Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
hility unless the clear preponderance of all of the relevant evidence con-
,inces us that the resolutions are incorrect Standard Drv Wall Products.
Inc., 91 NLRB 544 (1950). enfd 188 F2d 362 (3d Cir. 1951) We hase
carefully examined the record and find no hasis for reversing his findings
Addilionally Respondent asserts that the Administrative Lasw Judge's
findings are the result of bias After a careful examination of the entire
record. we are satisfied that this allegation is without merit
In the section of his Decision entitled "The Remedy." the Administra-
tive Law Judge erroneousls states that "Respondent." not the Union.
argued that due to Respoldetil's frivolous defenses the remeds herein
should provide for reimbursement of the l nmon ' litigation expenses Oh-
viously. it 'was lie Union that argued in its brief fir the payment of its
litigation expenses We note and correct the Adminisiratlse Law, Judge's
Inadserteni error
(1977). (See, generally, lsiv Plumbing & Heating Co.,
138 NLRB 716 (1962)).2
The Administrative Law Judge also recommend-
ed that Respondent reimburse the Union for the
reasonable litigation costs it incurred in connection
with the litigation of this proceeding. Unlike the
Administrative Law Judge, we do not find Re-
spondent's defenses to be "neither substantive nor
'occasioned by a reasonably debatable point of
view"' as set forth in Wellman Industries, Inc., 248
NLRB 325 (1980), and Hecks Inc., 215 NLRB 765
(1974). Accordingly, we shall not order Respond-
ent to reimburse the Union for its reasonable litiga-
tion costs.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as mended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Teckwal Corp.,
Gilmer, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute the following for paragraph 2(b):
"(b) Make whole, with interest, its employees in
the above-described bargaining unit for any loss of
pay or other employment benefits which they may
have suffered by reason of Respondent's refusal to
sign and implement the aforesaid agreement in the
manner set forth in Ogle Protection Service, Inc.. and
James L. Ogle', an Individual, 183 NLRB 682
(1970), with interest as prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977) (see, generally,
Isis Plumbing & Heating Co., 138 NLRB 716
(1962))."
2. Delete paragraph 2(c) and reletter the subse-
quent paragraphs accordingly.
3. Substitute the attached notice for that of the
Administrative Law Judge.
2 Member Jenkins ssould award interest on the backpay due in accord-
arnce sith his dissent in Olympic .ledical Corploraion 250 NI RB 14t
198(O)
APPENDIX
No-ricE To EMPLOYE ES
POSTI-D BY ORDER OF THE
NATIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
253 NLRB No. 22
117
DECISIONS ()F NATIONAl I.A()OR R.A'I ()NS BO()ARD
Wt Will. NO'r refuse to bargain with Chauf-
feurs, Teamsters, Warehousemen and Helpers,
Local Union No. 301, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, by re-
fusing to sign and implement the contract, ef-
fective June 1, 1979, through May 31, 1982,
between the above-named Union and the
member-employers of the Material Handling
Employers Association.
WiL W.l NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the National abor Rela-
tions Act, as amended.
WiE wit i. forthwith sign and implement the
above-mentioned contract and give retroactive
effect thereto from June 1, 1979.
WI. witli make whole, with interest, our
employees in the appropriate bargaining unit
described and set forth in the aforesaid collec-
tive-bargaining agreement for any loss of pay
or other employee benefits they may have suf-
fered by reason of our refusal to sign and to
implement the contract.
TItKW AI CORP.
DECISION
S1A I TMI NI OF I H}l CASI
ROBeRT M. SCI\W,sRZXART, Administrative Law
Judge: This case was heard in Chicago, Illinois, on
March 20 and 21, 1980, on a complaint issued October
19, 1979,1 based on a charge filed on August 30 by
Chauffeurs, Teamsters, Warehousemen and Helpers,
Local Union No. 301, affiliated with International Broth-
erhood of Teamsters, Chauffeurs. Warehousemen and
Helpers of America, herein the Union or Local 301. The
complaint alleges that the Respondent attempted untime-
ly withdrawal of its membership in a multiemployer bar-
gaining association and thereafter refused to execute, to
be bound by, and to effectuate the collective-bargaining
agreement negotiated between the Union and the em-
ployer association, in violation of Sectiotn 8(a)(5) and (I)
of the National Labor Relations Act, as amended, herein
called the Act. The Respondent, m its answer, denied the
commission of unfair labor practices.
All parties appeared at the hearing, were represented
by counsel, and were given the opportunity to be heard,
to present evidence, to examine and cross-examine wit-
nesses, and to file briefs. Briefs, thereafter filed by the
General Counsel, the Respondent, and the Union, have
been carefully considered.
I All dates hereinafter are within 179 ) nless stated it( be otherwise
Upon the entire record, " the briefs of the parties:' and
my observation of the witnesses, I make the following
FINI)IN(S 01 FAC I
1. I lil: lSINItSS ()I Ill- RSPONDI N
The Respondent, an Illinois corporation, is engaged in
the noliretail sale and distribution of construction materi-
als at its Gilmer, Illinois facility. During the calendar
year preceding issuance of the complaint herein, a repre-
sentative period, the Respondent in the course and con-
duct of its business operations purchased and received
goods at its Gilmer facility, valued in excess of $50,0(X),
directly from points located outside the State of Illinois.
In accordance with the foregoing conceded facts, I
find that the Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
iI. '111 I.AHOR ORGANIZA ION INVOI V Il)
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5)
of the Act.
111. I fl Al I (it 1) UNI AIR I liOR R XACI 'I S
A. Background
The Respondent, established in 1969, is engaged il the
manufacture and sale of building components and the
sale of luntber at its sole yard in Gilmer, Illinois, where
it employs carpenters. carpenters' helpers and truck-
drivers.
On November 3, 1978, in Case 13-RC-14900, the
Board's Regional Director issued a Certification of Rep-
resentative establishing Building Material, Lumber. Box,
Shaving Roofing and Insulating, Chauffeurs, Teamsters,
Warehousemen and Helpers Union, Local 786 of the In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called Local
2 At the t rlioll's motion durinig hile haring, I truck hie iirt aftirma-
lied defense fron Ie ans l er, i hlch alleged hat the ti )lon has failed
aiid refisL d t hargii i] S tLd fatih Ill iolatlir of SCc 8(b 3() of tlc
Act. and al so struck so much of prigraph XIV of the alts er as corre-
spolid gl ;alleged thait the R espoldeit "has refused to execute al agree-
menlc hich as reached through illegal pralictes hby tht Lhiorn il iola-
lion (If SectLhlo 8(hi3) TIhese motiois t strike .cre granted ;i the
rcord r t hat thc (icnera l Coutnlel. I iappeal, pre ious had af-
lirlnld Ihc Rcgiral )irector', dl mrissal of a harge filed Ithi Re
ptomicli thati ti tli, It1 herein had violatted Sec 8t(h)( i of the Act ol
thc arlie llegtiorls :is are Illatd h Ithe Respo(denltrl i this priceiedllg
I herefore, he reie*al of thcse allegation, li the ains' er conslitulied a d
jlio i furtlher ppeal from the (ecral C ilouniel' ureriewable prior deter-
initilion tIo disntiss See P'u(/i . Suthiett irlin . I..R ff, 0)
LRRM 2431. 2432. 7 I.C' I ,9 (9th Cir 198i).
: Althouigh the facts i this case are argeci udisputed the Respond-
ent, alleging bias ad prejudicc. vced in ils brief for a rehearing of Ihis
rlatcer oIl the ground that I had inmpeded the presentation of its case. The
Respondent hl as 1(t olht to ake pecial appeal from my ruhngs under
Sc 10t)2 26 of he tBoard's Rule, ad Regulations, Series 8. s amended.
anid also lid not folilow the procedure etl fItrtil in Sc 102.37 of te
Rules ad Rcgulatotis, which, n ir liau, requires the mely iling of it
delailcd atffidasit lI support f a tiio tIhait air admiistrative law judge
withdraw ol grounds of personal bias Accordingly. Ihat ssue need not
be colsidered here aItltrig revsiessed the record it the light of, the seri-
oust citUlititill herein. I lildl thalt rgunllcltis in his regard are without
substance and collclude Ihal rehearing Is lnot warranted
IfiCK\WAI. CORPI'
786, as the exclusive bargaining representative of the em-
ployees in a unit consisting of "All Drivers anitd Ware-
housemen employed at the [Respondent',,] facilily at
Gilmer Road, Mundelein. Illinois.4 excluding all carpen-
ters and carpenter trainees, '5 office clerical employees.
guards and supervisors as defined in the Act." The
newly certified unit consisted of four drivers.
13. The lauct
I. The Respondent's recognition of Local 301 as
bargaining representative for a multiemployer unit
On about January 10 or 15, following issuance of the
above Certification of Representative, Robert Grever,'i
who then was the Respondent's president, telephoned
Robert Barnes, secretary-treasurer and principal officer
of Local 301, the Union herein. Grever did not identify
himself or his company, but told Barnes that the Re-
spondent had had a National Labor Relations Board
election among its truckdrivers that fall and was dealing
with Chicago Teamsters Local 786. He asked if he
should be bargaining with that local or the one in Lake
County where his company is located. Barnes replied
that Local 301 has Lake and McHenry Counties in its ju-
risdiction and, if the Company is located in Lake
County, it probably should be dealing with him.
About 7 to 10 days later, Grever again called Barnes.
This time he identified himself and the Respondent, tell-
ing Barnes that he was at an impasse with the Chicago
local. Barnes stated that he would initiate the procedures
necessary to transfer the Respondent from the Chicago
local's jurisdiction to that of his union and that Barnes
would hear again on this.
The necessary procedures were implemented and, in
January, Local 301 became bargining representative in
place of Local 786.7
The first meeting between Barnes and Grever oc-
curred in late January when, the substitution of bargain-
ing representative having been completed, Barnes
4 Although physically located in Gilmer, the Respondent's address also
appears as Mundelein the post office used
s The Respondent's carpenters and carpenter trainees have been repre-
sented separately by the District Council of Carpenters of Chicago since
the Respondent's inception.
e Grever was the Responden's president for about 4 years His rela-
tionship with the Respondent ended about weeks before the start of this
hearing and he was replaced as president by Edwin Andress, a principal
of the Respondent.
? The Respondent's reasons for seeking this change in bargaining rep-
resentative are variously presented. As noted. Grever testified that he
had told Barnes he was at an Impasse with ocal 786 and that local 301
properly had geographic jurisdlction ver his Company's area if loca-
lion. He later related that t would he inappropriate to bargain with
Local 786 as hat union represented constructioll industry enmpli es
which the Respondent does nt employ tiec also expressed belief that the
economic provtisions of the contract proposed by Iocal 78e are nmore
costly than those (of L.ocal 301 'Ihe Respondent's brief, however. slated
only that the desired chuinge was based on geographic csideratiolns as
Local 301 properly had bargaining jurisdlcllon where the Respondent
was located The General Counsel and Union argue that, consistlent ith
its conduct alleged as unlavf'ul herein, the Respondenlt succeeded in sub-
stituting Local 301I solely for economic reasons In its continluing search
for the best available bargain It is found here. from (irever's estimon.
that in arranging to bargain ith L.ocal 301. the Respindenl' s cil s, were
reduced In that the l ocal 301 wage schedule was beloss that f It icil
786
brought it cop} of' the then current colleclive-bargainilg
agreementH to Grever's office and left it for inspection.
(ireser testified that. before the contract was signed
on March 14, there were about four contacts between
the parties bh phone or in person At a meeting early in
February, the contract provisions were reviewed and
discussed. When Barnes asked if Grever were going to
sign the agreement, he replied that he was not, and re-
quested clarification of certain points. Grever, seeing a
problem, asked how "material handling" in the proposed
contract's work jurisdictional clause would fit the Re-
spondent's operation. He explained that his other em-
ployees-carpenters and carpenters' helpers-in addition
to the four drivers who had voted for Teamsters repre-
sentation, also pick up pieces of lumber and transport the
Respondent's products and materials from place to place.
Grever stated that he did not want carpenters and help-
ce. sweeping floors, handling materials, or doing other
nloncarpentry tasks because of their highly specialized
skills and the cost of employing them, so that times when
these employees were not working within their field
would be kept to a minimum. However, if it should
occur that work covered by the Local 301 agreement
had to be done while Teamsters were unavailable. the
Respondent's position was that such work should contin-
ue to be performed by its carpenters and helpers as
during the I years that the Respondent has been in busi-
ness. Grever expressed concern that, if he followed the
company procedures as before, he would be in violation.
During this discussion, Barnes repeatedly reassured
Grever that his Union was interested in representing
only the four drivers who had voted in the fall election
and was not concerned about the Respondent's operation
or in its carpenters. When Grever protested that, since
the Respondent's policies conflicted with the language of
the contract, should a question arise later, Barnes' pres-
ent verbal assurances might be disregarded Barnes again
reassured him that the Respondent should run its own
business. He was there to represent only the four men
who had voted to have the Teamsters Union represent
them and Grever would be free to continue his operation
as before.
Edwin Andrews, who by the time of the hearing had
replaced Grever as company president, testified that he
attended at least two negotiating sessions with Grever
and with Barnes and Robert Laduke, the Union's presi-
dent. At the first such meeting, in late January, the eco-
nomic provisions were presented and explained to the
company representatives. These matters were not deeply
pursued as Andrews asked for time to enable review by
counsel, promising to get back to the Union.
About 3 weeks later, at the next meeting, the contract
provisions again were discussed. When Andrews tried to
get clarification of certain objectionable provisions, he
was told by Barnes that this is the contract that all the
Respondent's competitors had signed. If the Respondent
did not sign it, the Union would negotiate one far tough-
er. On March 14, following this alleged threat, the Re-
This conlract, helcn the Unlon and Material tlandllng Employees
Assocliation. a multiemploscr bargaining orgatnlatlon, a, effecicl e from
June . 107th io Ma\l I1. 197
DECISIONS OF NATIONA. I.ABOR()K REIATI()NS 3()ARD
spondent signed an addendum whereby it became bound
by the union contract with the employer association.''
The Respondent finds misrepresentation in Barnes' as-
surances during the above-described contract negotia-
tions that the Union merely was interested in represent-
ing the four drivers and that the Respondent would be
free to conduct its own business, as before, assigning car-
penters and their helpers to do material handling for
Teamsters away on delivery. Specifically, the Respond-
ent, after subscribing to the contract on March 14, had
felt compelled to settle a grievance filed by a driver on
March 22, protesting that on March 19, 20, and 22, two
named carpenters' helpers "were doing union yard work
and operating Forklifts." The Respondent contends that
this use of the contractual grievance procedure restricted
its long-exercised right to assign personnel, previously
discussed with Barnes. The situation cited, however, is
distinguishable from instances where carpenters and
helpers are used to fill in for drivers who are absent or
away on delivery, for, while these carpenters' helpers
were being assigned to do his work, the grievant was on
layoff.
2. The Respondent's withdrawal from
multiemployer bargaining and refusal to sign the
new contract
The multiemployer contract to which the Respondent
had subscribed in March, near the end of its term, had
been negotiated by the Union with the Material Han-
dling Employers Association, herein the Association,
founded several years before to represent its members,
who are employers in the building materials industry, in
negotiating contracts, settling disputes with the Union,
and to perform other related services.
Having been notified in March that the Union would
be terminating the contract as of the end of its term,
May 31, Association officers called a membership meet-
ing for April 4. This was attended by a number of em-
ployer's representatives, including Grever on behalf of
the Respondent.
At the April 4 meeting, the presiding officer an-
nounced that the Association contract with the Union,
Local 301, was expiring on May 31. He asked the mem-
bership to decide upon the bargaining format to be used,
whether they wished to bargain individually or to con-
tinue through the Association. Early in the meeting, he
also asked those present to rise and introduce themselves
to the group. While the introductions were in progress,
an authorization agreement was circulated for signature.
9 Barnes testified that the Respondent basically had accepted the eco-
nomic provisions of the contract during the earlier meeting, but had de-
layed signing until counsel could review it. When the parties met again
after the Respondent's attorney had examined the contract, there were no
problems and the agreement was quickly signed. Barnes denied having
threatened the Respondent with a tougher contract if the Company did
not sign. I credit Barnes' denial that he had threatened the Respondent.
The Respondent had taken positive action to substitute ocal 301 as bar-
gaining representative and it is undisputed that the Respondent was being
afforded a more favorable wage package than had been offered by Local
786. Finally, as will be discussed, when the Respondent, in the fillowing
July and August, determined that it did not want to sign the newIly nego-
liated agreement then submitted, it was able to refuse to do so, standing
firm, noltwithstanding its contention that the earlier contract had been
signed against a background of threat by the Union.
Most significantly, this agreement authorized the Associ-
ation "to negotiate and execute on the signers' behalf, a
tiew multiple-employer collective-bargaining agreement
to replace the labor agreement," effective June 1, 1976,
to May 31, 1979, with Local 301. It established that the
Association be represented in negotiations by a four-
member bargaining committee, and provided that the
new contract shall cover the employees of the signers
who are represented by the Union, that there must be
ratification of the contract by 51 percent of the authori-
zation signers, that the authorization to the Association is
irrevocable and that employer members would not nego-
tiate or execute any bargaining agreement or any amend-
ment or modification to the existing agreement with the
Union without the Association's prior approval.
When Grever introduced himself and his Company at
the April 4 meeting, someone present asked why he was
there as the Respondent's facility was located west of
U.S. Route 45. Grever agreed that his facility was west
of that road; that he was from Gilmer. When the man
told him he was not supposed to be at that meeting,
Grever replied that he had not known that. Grever then
was told, for the first time at that meeting, that Local
301 had a second, separate collective-bargaining agree-
ment with a group of employers west of Route 45 that
was less costly ' than the east of Route 45 contract it
negotiated with the Association." When Grever sug-
gested at the meeting that he should have the west of
Route 45 contract as his company's yard was located
west of Route 45, he was advised to take action if he
wanted that agreement-to hire a lawyer. However,
Grever, on the Respondent's behalf, signed the Associ-
ation authorization agreement then being passed
around-either before or after being told of the other
contract-and did not at that meeting attempt to revoke
his signature from that document.
The Association and Union began negotiating a new
contract on April 12 and these talks continued at various
sessions until the first half of June when the terms of a
new agreement, effective June 1, 1979, to May 31, 1982,
were reached. The proposed contract was ratified by a
majority of the Association's members sometime before
June 14 and was signed by Union and Association repre-
sentatives on July 5.
However, after the April 4 meeting, the Respondent
did not again participate in the Association's affairs and
did not attend the June ratification meeting. Rather, after
the April 4 meeting, Grever sent the following undated
letter on the Respondent's stationery to William
Peddle, 2 with a carbon copy to Union Secretary-Trea-
surer Barnes:
"' Although (ireser was told that the east of Route 45 contract 'was
less expensive, he as not told by how much
I lI March, the Respondent had become bound by the then current
cast of Route 45 agreement
2 Peddle, setnior executive of a member concern, was irnc f the
founders o(f the Association and served as chairman of the Asociltli(ll'S
four-member ncgotiating committee for the new contract. At the time of
the hearing, he was Association chairman At the April 4 meeting,
Peddle, tolo. had told Grcver of the west of Route 45 contract
190
'I'CKWAI CORP
I would like you to officially remove the name of
Teckwal Corp from the list of contractors that
have signed up to accept the negotiating commit-
tee's contract wKith I.ocal 301 of the Teamsters
Union. We wish to do this on an indixidual basis.
The General Counsel, to establish a date for the Re-
spondent's letter seeking withdrawal from the Associ-
ation, introduced a copy thereof subpenaed from the Re-
spondent's files, where the date "5/16/79" appeared in
red pencil above the upper right side of the typewritten
body of the letter. However, neither Grever nor An-
drews could attribute any significance to that date.
Peddle could niot recall whether he had received the
letter before or after April 12, when new contract nego-
tiations began, and Barnes testified that he had no kiiowl-
edge of the Respondent's refusal to continue to partici-
pate in the Association until July, when Grever refused
to sign the completed agreement. Barnes denied learning
of Grever's letter until told by the General Counsel.
Grever recalled that he had mailed the letter at the "tail
end of April or the first part of May," some 3 or 4 weeks
after the April 4 meeting. I credit Grever's testimony as
to approximately when this letter was mailed as the most
informed on this subject and find, therefore, that the
letter requesting withdrawal from association wide bar-
gaining was sent after contract negotiations had begun
on April 12.
On about July 8, after the July 5 signing of the new
contract by association and union representatives, Union
President Laduke left a copy of the agreement with
Grever for examination, at his request. When Laduke
called about 2 days later, July 10, Grever told him that
the Company could not sign the agreement, but wanted
to look it over. Laduke's reply that the Company, as an
Association member, was duty-bound to sign the agree-
ment, was met with the response that the Company no
longer belonged to the Association.
In early August, Barnes called Grever and asked if he
was going to sign the contract. Grever answered that he
would not; the Union had his company under the wrong
contract. Teckwal would sign the west of Route 45
agreement. Barnes told Grever that he could not. The
east of Route 45 proposal had been voted on by his men.
Grever was reminded that his company belonged to the
Association that had negotiated this contract which he
was duty-bound to sign. The conversation ended with
Grever repeating that his company was prepared to sign
the west of Route 45 contract and Barnes reiterating that
this could not be done.
The Respondent, although again stating at the hearing
its willingness to sign the west of Route 45 contract, has
not signed the more costly east of Route 45 contract ne-
gotiated by the Union and the Association.
3. The Union's collective-bargaining agreements for
east and west of Route 45
The Respondent contends that as its only yard is locat-
ed west of U.S. Highway 45, it properly should be a sig-
natory to the agreement for that area in accordance with
what Grever had been told during the April 4 Associ-
ation meeting. To support this position, the Respondent
introduced two lists prepared by the Union, showing
names and addresses of employers ewho are or should be
parties to its respective contracts. The first page of this
exhibit, dated March 14. 1979, lists 15 employers who
are signatories to its west of Route 45 contract, and is
headed "Coal. Lumber, Material and Fuel Oil Drivers
out of Coal and Building Material Yards located West of
U.S. Highway #45."' The second and third pages, dated
March 8, 1979, lists 43 employers, including the Re-
spoident, that the Union expects to sign the east of
Route 45 contract, and is headed "Coal, Lumber, Build-
ing Material and Fuel Oil Drivers, Helpers and Laborers
out of Coal and Building Materials Yards." Noting that
the first list refers to yards "located west of U.S. High-
way #45," the Respondent points to this location-speci-
fying phrase to argue that in the Union's on words. the
address of a given employer is the criterion for determin-
ing whether the east or west of Route 45 contract is ap-
plicable.
Barnes xplained that Route 45 runs through Cook,
Lake, and McHenry Counties, where his Union has juris-
diction. lie described the road as being so positioned that
Cook County lies on both sides of Route 45, that around
two-thirds of Lake County is east of Route 45 and that
McHenry County is completely to the west. The Re-
spondent's sole facility in Gilmer is about 6 miles west of
that route.
Barnes related that his Union first had organized em-
ployees of building supply firms east of Route 45 in the
19 2 0's, Employees west of Route 45 were not organized
until 1955. As the western area is more rural, his Union
never has been able to negotiate wages as high there as
in the east of Route 45 contracts. However, the criterion
as to which contract is applicable to a given employer is
the area served by that employer and not the physical lo-
cation of its premises. Barnes identified eight employees,
excluding the Respondent, on the east of Route 45 em-
ployers list whose yards are located west of Route 45
but who are signatories to the Association's east of
Route 45 contract because they also serve customers east
of Route 45. Also, one member of the Association's four-
member contract negotiating committee was an executive
of a company situated to the west.
Barnes emphasized that in order to be eligible for the
west of Route 45 contract, an employer must be located
in and exclusively service the area west of Route 45.
None of the employers listed as signatories to the west of
Route 45 serves anyone to the east of that boundary. If
an employer's premises are physically west of Route 45.
':*I h Respondentso also as rted at the hearing that the sanme cmpli)er
association legotiated hboth the east and west of Route 45 onlracls ith
the same union, and argued that it. therefore, was entitled to subscribe to
the less costly contract The Respondentl also maintained that financial
loss to itlelf resulting from this dual arrangement constiluted "unusual
circumsiances permiling withdrawal from multiemployer bargaining
swithin he doctrine of Retail tIoci,ts, Inc.. 120 NI R 38. 395 (1
9
58)
Peddle. hosecr. testified in response. w thout contradiction, thal the
Assotiatilon he heads is completely separate from and has nothing to do
wilh the Aresl of Roule 45 enployer,' group. of which he has little per-
slnll knowIledge Barne. too, tesiified that the Iwo contlrals arc negoti
acd separately with different employers and d not hase the same expl-
ration dles A.cordingl. the Respondent's asscrtion must he deemed
IacitU.lly unsupporlt d
191
I) tCISI()NS ():OF NAFIONAI I. LABOR Rl A'Il()NS BO()ARI)
but the employer services customers both east and west
of Route 45, they are expected to sign the east of Route
45 contract. 14
Barnes and (irev'r both testified that, although the
Respondent's sole facility is situated approximately 6
miles west of Route 45. it services customers both east
and west of the boundary road. irever related that be-
twcen 70 to 8) percent of the Respondent's business was
west of Route 45.
Barnes testilied in convincing detail as to the business
operations and locations of employers signatory to his
Union's respective contracts. 'Iherefore, noting that eight
other employers x ho, like the Respondent, hae their
yards west of Route 45 but who also serve customers to
the east, are signatories to the east of Route 45 agree-
meit, that an executive of one of these concerns partici-
pated as a member of the Association's four-member lie-
gotiating committee, and, as Barnes' testimony was niot
factually contradicted, I find that there was no inconsis-
tency or disparate treatment in applying the east of
Route 45 agreement to the Respondent. In so conclud-
ing, it is noted that, while the phrase in the employers
list heading, "located wecst of Route 45," cited by the
Respondent, is accurate as to the physical location of
those employers, Barnes' testimony is corroborated by
the absence of any corresponiding geographic limitation
in the heading or elsewhere on the other list of signatory
employers. Accordingly, while an employer must be lo-
cated in and serve the west of Route 45 area to have the
westside contract, it is not necessary to be located to the
east of Route 45 to be signatory to the eastern agree-
ment.
C. Discussion and Concluding Findings
In Joseph J. Callier, et al., d/b/a Callier's Custom
Kitchens, iS the Board gave the following relevant analysis:
The gravemen of the complaint in this case is
that Respondent's withdrawal from the [multiem-
ployer] Association was untimely, and that Re-
spondent's subsequent refusal to execute and apply
the terms and conditions of the agreement signed by
the Association and the Union... violated Section
8(a)(5) and (1) of the Act.
In Retail As.ociates [Inc., 120 NLRB 388 (1958)]
the Board .... held that, prior to the begin-
ning of negotiations, withdrawal could only be ef-
fected by an unequivocal written notice expressing
a sincere intent to abandon, with relative permanen-
cy, the multiemployer unit, and to pursue negotia-
tions on an individual-employer basis. However.
once negotiations had actually begun, withdrawal
' Certaill employver. are signalorit, to hth agrc remcniD. Iarrics rel lted
how iWu r ernploers who originally were lctocated ili (,1 Routtc 45 illld
erc ubscrihers lte the ca;,icrn olllric a .suhsequcnly als, opeled yards
o the west of Rute 45 A their requcot, they were giv;ii the csl of
Roulc 45 contracl. hut 0only for those sesicrnl facililics I hey crc not
permitted use te ew )ardIs to rilake dcli crics or otIhcrwisc scrvc u1s-
Iomers easll f Route 45 ad conlimrucdl t be hounld hy the casltside c n-
iract fr their original easacrni facilities ad for all sw rk done lo thie cat
' 243 N RB 1114, 1118 (1979)
could only be effected on tile basis of mutual con-
seCt or wheni unusual circumstances ,were present.
The exception under Retal . ociat.es supra,
which pernmits untimely withdrawal from multiem-
ploycer bargaining groups under "unusual circum-
stances" has been limited by the Board to two basic
situations. First, unusual circumstances have been
found to exist when the withdraw ing employer can
establish that it is faced with dire economic conse-
quences, such as imminenit bankruptcy. The second
situation is when the multiemployer bargaining unit
has dissipated to the point where the unit itself is no
longer a viable bargaining entity. The noted excep-
tions arc designed to foster, rather than destabilize,
multiemployer bargaining by limiting an employer's
withdraw al after commencement of negotiations-
assumiing the absence of mutual consent-to the
most extreme situations.
In Callier'v Custom Kitches, upra, the Board found
the Respondent's withdrawal from the Association to be
untimely as notification of withdrawal was not sent until
after the commencement of negotiations, as there was no
mutual assent to ithdrawal and as "unusual circum-
stances" of the extreme types specified were not present.
In Btrgces.s Mining & Con.struction Corporation,t the
Board found that while the attempted withdrawal for the
multiemployer hargaining group was untimely, "such
withdrawal would not, in and of itself, be a violation of
Section 8(a)(5). Rather, the Respondent's refusal to bar-
gain and to adhere to the negotiated contract following
the untimely witlhdrawal constitutes the violation of Sec-
tion 8(a)(5) and (1) herein. See Ringside Liquors. In(.. d/
b/a Dino; Lounge and Cassell & Friedman, Inc., 237
NLRB 30, fn. 2 (1968)."i7
In the instant case, it has been found that the Respond-
ent sent notification of its withdrawal from the Associ-
ation at the end of April or the beginning of May, weeks
after April 12, vhen ne w contract negotiations began.
Even crediting Grever's representation, denied by
Barnes, that he concurrently had sent a copy of the letter
of withdrawal to the Union, it is clear that the Respond-
ent's attempt at withdrawing from the multiemployer As-
sociation was untimely and lacked mutual assent.
It also has been found above, contrary to the Respond-
ent, that as the applicability of the east of Route 45 con-
tract to a givenl employer was based on the area served
by that employer, rather than its physical location, there
was no irregularity involved in applying this contract to
the Respondent.
Moreover, the Respondent's contention that it had
beconie bound under the nes agreement through misrep-
resentation is factually insupportable. Grever testified
that he had learned of the less costly west of Route 45
agreemcent at the April 4 Association meeting, when he
signed the authorization committing the Respondent to
' 231' NIRl 92, il 1 978)
' Al so e PI'r,,n It IIo ykll (nmp vr 238 NIRH 943 f I (1978),
enforcemlclll dried hl66 2d 136l (5lh Cr 1481)
192
1 CK\WAI CORI'
multiemployer bargaining. With this information he still
did not seek to revoke his authorization at that meeting,
and the Respondent did not communicate a desire to
withdraw from multiemployer bargaining at any time
during the week that remained before the start of con-
tract negotiations on April 12, when such withdrawal
still might have been timely. In these circumstances, mis-
representation cannot be found.
No merit is found to the Respondent's contention that
the unit as described in the July east of Route 45 agree-
ment is inappropriate as improperly expanding the scope
of the unit both beyond that originally certified by the
Board or even that set forth in the contract signed with
the Union in March. The unit description contained in
article II of the proffered July agreement covers the fol-
lowing included employees:
Garage employees, truck drivers and drivers or
helpers and yard laborers operating yard tractors,
yard loaders, lifts or carriers, and engaged in the
delivery, loading and unloading of lumber, lumber
products, millwork, trim and building materials
from yards and warehouses, team tracks, or mills
owned and/or operated by members of the compa-
ny, or from any other point designated by the em-
ployer to individuals, companies or corporations.
and all construction sites, or any other place, as di-
rected by the employer. Helpers and yard laborers
are not to drive trucks outside of yards.
The unit for which Local 786 was originally certified
as bargaining representative included: "All drivers and
warehousemen employed at the [Respondent's] Munde-
lein, Illinois, facility, excluding all carpenters and carpen-
ter trainees, office clerical employees, guards and super-
visors, as defined in the Act." This unit, the Respondent
argues, was expanded by the contract signed in March
with Local 301, which contained an identical unit to that
described above for the succeeding July 1979 contract,
except that there was no reference in the unit description
provision to garage employees. The Respondent con-
tends that as it does not employ garage employees, the
inclusion of this classification in the July contract consti-
tuted an improper further expansion of the unit.
As to the Respondent's first point that the contract
signed in March included job categories not specified in
the Board's original Certification of Representative, par-
ties, in the course of bargaining, are free to validly nego-
tiate changes to certified units, and to include, through
bargaining, work classifications not spelled out in the
original certification. 8
The Respondent's second point in this area, that the
inclusion of garage employees for the first time in the
July contract improperly expanded the scope of the mul-
tiemployer unit contained in the preceding contract, is
incorrect. Barnes' testimony that the Union and Associ-
ation had bargained for garage employees in the earlier
'" See Intlrnaional le'hlphoii & fl Ie.graph ('orporation (il7' I-e'deral
Laborouoric, 159 NI.RB 1757. 1759-64 (1
9
66). enfd in relevant part 382
F.2d 366 (3d Cir 19671, cert denied X89 i S 1()39 (1968), where the par-
lies, extensively altering the originally certified unit Ihrougih siubh cqent
negotiation, legitlmlled shat, lt first, mia hasre been an inapproprialte
unit
contract and that the failure to specifically refer to them
in the unit description provision of that agreement was a
typographical error is supported by the inclusion in arti-
cle X of that contract of a wage schedule for garage
employees. Accordingly, the July contract as offered to
the Respondent in no way expanded the scope of the
unit set forth in the contract previously signed by the
Respondent.
The Respondent's argument that the unit set forth in
the cast of Route 45 contract is, in any event, inappropri-
ate loses some of its force as the Respondent has stated
its readiness, both before and at the hearing. to sign the
west of Route 45 agreement which contains a unit de-
scription identical to that in the contract rejected by the
Respondent.
The Respondent's reliance on A' L.R.B. v. Siebler
Heating & Air Conditioning'9 as authority for the propo-
sition that the Respondent was put at a competitive dis-
advantage by the more costly east of Route 45 agree-
ment and that this disadvantage constituted such "unusu-
al circumstances" as would warrant its withdrawal from
multiemployer bargaining is misplaced.
In the present matter, unlike Siebler. supra, there was
no conflict of interest between members of the Associ-
ation as to contract terms, so as to possibly support a
finding that the Association had failed to fairly represent
all its members, as found by the court in Siebler and
there was no specific showing by this Respondent of fi-
nancial hardship, even to the more limited extent noted
in Sichlcr. Finally', the court's conclusion that "unusual
circumstances" were present in Siebler is contrary to the
Board's finding in that matter at 219 NLRB 1124, by
which, of course, I am bound. See :L.R.B. v. lulsa
Sheet .Metal oWrkAs. Inc.,20 cited supra at 219 NLRB
1131 21
For the above reasons, I find that the Respondent's
withdrawal from multiemployer bargaining was not ef-
fective because of its failure to communicate its with-
drawal to the Association and Union in timely fashion
prior to the start of new contract negotiations, and as
such untimely withdrawal lacked mutual assent or other
cognizable justification.
Therefore, the Respondent's later refusal to execute
and implement the subsequently negotiated multiem-
ployer agreement violated Section 8(a)(5) and (1) of the
Act.
'' 53 2d h60 (8th ('ir 1977). cert denied 8 S Ci 311 4 (1i 78)
2c 167 F 2d 55 (0th Cir 1961.
1 lith Respoidenl 's assertllon that m, refusal It recesi\ e Illl elidetlc
the monlearS prolisiolns if the eslt of Route 45 contract had pres clted
the dleveclopment of an conomic defense based on competitlrve disadvan-
tage as "unusual circumstances" warranting ithdraal from multirnl-
ploier bargaining is inaccurate and untimely The record shos that hc
Respondcnl had refused to establish the contract', relevsance b repeatelld-
Iv declining It answer whether if shoirn that he wetsidc colntract .,as
lcss costly than the east of Route 45 agreemenr tIhat this couldt costllit ul
a defense to the refusal to bargain alleged in the complaint That the wes
of Route 45 agreement is less expetllsiv Ito emploer sigllalOrlies as es-
tahlished im general terms by HBarnes' tstlimoll thati his uni i had rlecr
been hle to negotiate is forabl a i r(llltralt iI the rurIllle id "est its I
had to the east
193
DEICISIONS OF NATI()NAL LABOR R.I ATIONS BO()ARD
IV. IHI I-FFECrI 01 I H tNI:NAIR I.ABOR PRACI ICES
UPON COMMFRCE
The activities of the Respondent set forth in section
III, above, found to constitute unfair labor practices, oc-
curring 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 burden-
ing and obstructing commerce and the free flow thereof.
CONCIUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union, Chauffeurs, Teamsters, Warehousemen
and Helpers, Local Union No. 301, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Local 301 is, and has been at all material times, the
exclusive bargaining representative of the employees of
the Respondent in the following contractual unit appro-
priate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
Garage employees, truck drivers and drivers or
helpers and yard laborers operating yard tractors,
yard loaders, lifts or carriers, and engaged in the
delivery, loading and unloading of lumber, lumber
products, millwork, trim and building materials
from yards and warehouses, team tracks, or mills
owned and/or operated by members of the compa-
ny, or from any other point designated by the em-
ployer to individuals, companies or corporations,
and all construction sites, or any other place, as di-
rected by the employer.
4. By its refusal to sign the collective-bargaining agree-
ment reached between the Material Handling Employers
Association and the Union on July 5, 1979, effective
June 1, 1979, through May 31, 1982, and by thereafter
failing and refusing to comply with the terms of this con-
tract, the Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THI R.Mi)DY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it will be recommended that
the Respondent cease and desist therefrom and take cer-
tain action designed to effectuate the policies of the Act.
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, following its untimely
withdrawal from multiemployer bargaining, by refusing
to accept, sign, and give effect to the terms and condi-
tions of the collective-bargaining agreement signed by
the Union and the Association on July 5, 1979, although
duly requested, the Respondent should immediately sign
and implement the agreement reached between the
Union and the Material Handling Employer's Associ-
ation and give it retroactive affect as of June 1, 1979,22
making its employees whole for any loss of earnings suf-
fered since then as a result of its failure to apply the said
agreement. Backpay is to be computed in accordance
with F: W. Woolworth Company,23 with interest as pre-
scribed in Florida Steel Corporation. 24 Nothing herein is
to be construed as requiring the Respondent to recoup
wages or benefits already received by its employees. Ad-
ditionally, it is recommended that the Respondent be di-
rected to make payments into the various funds on behalf
of those employees in the unit for whom such contribu-
tions would have been made had the Respondent not un-
lawfully repudiated the collective-bargaining agreement.
The Respondent, citing Wellman Industries. Inc.,2 5
argues in its brief and on the record that the Respond-
ent's defenses herein are frivolous and, accordingly, that
the remedy herein also should provide for reimbursement
of the Union, litigation expenses, and those other ex-
penses incurred by virtue of the special effort required in
trying to get the Respondent to sign the new contract. I
agree.
The findings herein that the Respondent had sub-
scribed to the 1967-79 multiemployer collective-bargain-
ing agreement, had thereafter provided written authori-
zation to the Association to negotiate the next contract
on its behalf, and later had attempted untimely with-
drawal from multiemployer bargaining, are based on
facts which are iargely documented or otherwise undis-
puted in the record. Also clear is the Respondent's refus-
al to sign and implement the 1979-82 contract negotiated
by the Association on its behalf following their untimely
withdrawal.
Against this, the Respondent has argued as an affirma-
tive defense in its answer and on the record that the re-
pudiated contract had been reached through the Union's
own refusal to bargain in violation of Section 8(b)(3) of
the Act, although this defense was no more than a de
facto further appeal from the General Counsel's unre-
viewable earlier dismissal of its charge to that effect. The
Respondent argued that the unit had been improperly ex-
panded and was otherwise inappropriate, although it
always was prepared to sign what it believed to be the
less costly west of Route 45 contract, which contained
an identical unit description. The Respondent argued
that the same employer association had negotiated both
the east and west of Route 45 contracts and that it,
therefore, was entitled to the benefit of the cheaper
agreement, although the only evidence on this point
showed that the two contracts were separately negotiat-
ed by the Union with two mutually independent employ-
er groups. There is no evidence to support the Respond-
ent's contention that any obligations arising under the
zz Preton H. Hskell Company, upra.
2:1 90 NLRB 289 (1950).
"' 231 NLRB 651 (1977) See, generally, Iov Plumbhing & Heating Co.,
138 NLRB 716 (1962).
2" 248 NI.RH 325 (198()
194
TECKWAI, C()RI'
east of Route 45 contract had been incurred by the
Union's misrepresentation. 2
While the Respondent's past litigation history is not
comparable to that attributed to the Respondent in Wi'el-
man Industries, Inc., . pra, in the context of the eCi-
dence, the defenses raised herein appear to he neither
substantive nor "occasioned b a reasonably debatable
point of view."
Accordingly. it is recommended that the Union be re-
imbursed by the Respondent for the reasonable litigation
costs it has incurred in connection with the litigation of
this proceeding and for expenses incurred after July 10,
1979 27 in unsucessfully attempting to will the Respond-
ent's acceptance and compliance with the contract.
Upon the foregoing findings of fact, conclusions of
law. and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER"2
The Respondent, Teckwal Corporation, Gilmer. Illi-
nois, its officers, agents, successors, and assigns. shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Chauffeurs,
Teamsters, Warehousemen and Helpers. Local Union
No. 301, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America. as the exclusive bargaining representative of its
employees i the appropriate bargaining unit described
and set forth in the collective bargaining agreement ex-
ecuted on or about July 5. 1979, by and between the
above-named Union and the Material Handling Employ-
ers Association, effective June 1, 1979, through May 31,
1982.
(b) Refusing to sign and implement the 1979-82 collec-
tive-bargaining agreement reached between the above-
named Union and the Material Handling Employers As-
sociation with respect to its employees in the appropriate
unit described herein.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
'" The only real credihilit, resolution req uired was the finding ahbove
that the Ulnion hadr nlt thretlltced the Resporndenrt With the proposal of a
tougher crlracl hef re the R splidcnril signed the q176 7 9 agreenicnl in
March However, een this ilsa collateral to the principal issue herein
ihe Respondenlt's refusal to sign and implement the 197V982 agreement,
which ohhigalorn more direcll arose from its authorization for mulitem-
ploer hargai ing later signed ii April
:t July 10 i Ihe approxmimate date of the Respordent's irst refusal to
sign the new agreemenl
2 In the ev lnl no cxceplionl, are filed a pro,ided by Sec 1246 of
the Rules arid Regulalions of the Nalltonal I ahor Relat ion, tBoard, the
findings. conclusions. ad recommended Order herein hall, as provided
in Sec 102 48 of the Rules and Regulhlirons., he adopied hb the oard and
become its findings. cnclusions, and Order and all obhjections thereto
shall he deemed a alied fr all purpose.s
rights under the National Labor Relations Act, as
amended.
2. ake the following affirmative action necessary to
effectuate the policies of the Act:
(a) Forthxilh sign ad implcrmelt the above-described
agreement antd give retroacliSe effect thereto front June
1 197)9.
(b) Make whole, with interest. its employees the
above-described bargaining unit for any loss of pa or
other employment benefits which they may have suf-
fered by reason of the Respondent's refusal to sign alld
implemetnt the aforesaid agreement, in the manner set
forth in the section of this Decision entitled "The
Remedy."
(c) Pay to the Union the costs and expenses incurred
by it in the investigation, preparation, presentation, and
conduct of this proceeding before the Board, including
reasonable counsel fees, salaries, witness fees. transcript
and record costs, travel expenses. and other reaonable
costs aid expenses, all such costs to be determined at the
compliance stage of this proceeding. In addition, pay to
the Union the costs and expenses incurred by it in at-
tempting to obtain the Respondent's execution of and
compliance with the aforesaid multiemployer collective-
bargaining agreement subsequent to July 10, 1979. such
costs ad expenses to be determined at the compliance
stage of this proceeding.
(d) Preserve and, upon request. make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary or useful in analyzing the amount of back-
pay due under the terms of this recommended Order.
(e) Post at its Gilmer, Illinois, facility, copies of the at-
tached notice marked "Appendix." 2 9 Copies of said
notice, on forms provided by the Regional Director for
Region 13, shall, after being signed by the Respondent's
authorized representative, be posted in said premises by
the Respondent immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
29 In the event that this Order is eniforced by a Judgment f he
United States Court olrf Appeals. the words in the notice reading "Posted
h, Order if he Na;ltional labthr Relations tBoard" shall read I'Po,tcd
P'ursuanlllo a Judgmenll of the United States Court of Appeals Enfi)rclng
an ()rder of the Natillnal I air Relation,lls B .ard "
195