Transport Service Co.

National Labor Relations Board - Board Decisions

Nov 13, 1986

282 N.L.R.B. 111 (N.L.R.B. 1986)

TRANSPORT SERVICE CO. 111
Transport Service Company - and Teamsters Local
Union No. 279, affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Cases 33-
CA-5239, 33-CA-5945, and 33-CA-5967
13 November 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 19 April 1984 Administrative Law Judge
Wallace H. Nations issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief,
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of, the exceptions and briefs' and
has decided to affirm the judge' s rulings , fmdings,2
and conclusions as modified and to adopt the rec
ommended Order as modified.3
We agree with the judge that the 8(a)(5) allega-
tions regarding the transfer of unit work and equip-
ment to other locations, the use of nonunit drivers
to perform unit work, and the failure to comply
with the guaranteed ' workweek provisions of the
contract should be ' deferred to the grievance-arbi-
tration procedures in the parties' collective-bargain-
ing agreement. In adopting the judge's dismissal of
these allegations in deference to the contractual
1 The Respondent has requested oral argument . The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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.
The Respondent contends that Union Business Agent Hord agreed to
allow it to use single drivers on Sundays and holidays without paying the
premium pay owed under the contract . Even crediting the Respondent's
version of this conversation, however, we find that no agreement was
reached.
2 The judge's recommended Order requires ' the Respondent to furnish
any relevant information the Charging Party requests for use in process-
ing grievances about the deferred issues No exceptions were filed to this
portion of the judge 's decision. We note that these Order provisions are
based on a complaint allegation , supported by the record , that the Re-
spondent refused to furnish certain requested information necessary for
processing grievances about the deferred issues, and , that the provisions
merely restate the Respondent's legal obligations. Member Stephens
adopts these Order provisions for the reason that no exceptions were
filed to their inclusion.
We have modified the judge's Conclusions of Law and recommended
Order to use the standard format and to follow and remedy the violation
he found based on the Respondent's failure to pay its garage employees
their contractual wage increases when due. We shall also issue a new
notice that conforms to our Order. '
grievance-arbitration procedures, however, we find
it unnecessary to rely on the judge's discussion of
the merits of the allegations4 or on his incorrect as-
sumption that Teamsters Local 705 would be able
to participate in grievance-arbitration proceedings
under this contract. We find, instead, that deferral
is appropriate under the standards of United Tech-
nologies Corp.,5 because the dispute before the
Board turns on an interpretation of various con-
tract provisions, the broad arbitration clause in arti-
cle 8 of the collective-bargaining agreement clearly
encompasses the matters at issue, the Respondent
has asserted its willingness to arbitrate the dispute,6
and the parties have a stable collective-bargaining
relationship.
In determining that deferral is warranted because
the dispute before the Board centers on the con-
tract, we note that this is not an accretion case in-
volving a question of unit appropriateness or a ju-
risdictional;, dispute case, both of which would fall
within our primary jurisdiction. Thus, 'Teamsters
Local 279, the Charging Party, does not claim to
represent the nonunit drivers employed by the Re-
spondent 'at other locations; -rather, it claims that
the work done by the drivers should be performed
by its own unit drivers under its collective-bargain-
ing agreement with the Respondent. Moreover,
Teamsters Local 705, the Union representing many
of the other drivers performing work claimed by
the Charging Party, has never made a claim to the
Respondent for this work, has not raised this issue
before us, and has no contractual basis for claiming
this work.
Furthermore, we fmd that this case is well suited
for deferral, even though it involves alleged unilat-
eral changes in the contract's terms and alleged re-
fusals to furnish information necessary for griev-
ance processing, and despite the judge's findings
that the Respondent unilaterally bypassed the
Union in bargaining directly with employees and
threatened to retaliate against an employee if he
did not withdraw a grievance. The Respondent's
unilateral actions do not rise to the level of a total
repudiation of,the contract or a rejection of collec-
g Deferral is a'threshold issue to be decided before reaching the merits.
Collyer Insulated Wire, 192 NLRB 837, 843 (1971). Here,,it is not clear
that the contract's terms authorized the Respondent 's unilateral ,fictions,
and we agree with the judge that there is a substantial issue of contract
interpretation that can best be resolved by an arbitrator with special skill
and 'experience in deciding matters arising under established bargaining
relationships.
5 268 NLRB 557 (1984).,
s We note that the Respondent originally requested the judge to defer
this case, however, now that the judge hasdecided to defer based on the
Respondent's willingness to arbitrate, the Respondent argues for dismis-
sal The General Counsel, who opposed deferral before the ,fudge, has
not excepted to his finding that deferral is appropriate, and neither has
the Charging Party.
282 NLRB No. -1l 1
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive bargaining , and its interference with grievance
processing was isolated . Nor does it appear that its
actions undermined the grievance-arbitration proce-
dures, as the parties have continued to file, process,
and settle grievances. Moreover, no party has ex-
cepted to deferral for these reasons.
AMENDED CONCLUSIONS OF LAW
Insert the following as Conclusion of Law 5 and
reletter the judge's subsequent Conclusions of Law
accordingly.
"5: By refusing to pay its garage employees the
wage increases and COLA specified in its collec-
tive-bargaining agreement when due, the Respond-
ent has violated Section 8(a)(5) and (1 ) of the Act."
AMENDED REMEDY
Substitute the following for the second para-
graph of the judge's remedy section.
"The Respondent, having refused to pay Sunday
and holiday premium pay to its drivers in violation
of its contract and having refused to pay the wage
increases and COLA owed to its garage employees
when due under its contract , is ordered to make its
drivers and garage employees whole for any loss
they may have suffered by reason of its unlawful
action. All backpay due under this order shall be
computed as prescribed in Ogle Protection Service,
183 NLRB 682 (1970), plus interest as computed in
Florida Steel Corp., 231 NLRB 651 (1977)."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Transport Service Company, Hillsdale,
Illinois, its officers, agents, successors , and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1.
"1. Cease and desist from
"(a) Bypassing the Union by bargaining directly
with unit employees about contract concessions.
"(b) Refusing to pay its drivers the Sunday and
holiday premium pay specified in its contract and
refusing to pay its garage employees the wage in-
creases and COLA specified in its contract when
due. ,
"(c) Threatening its employees with retaliation if
they do not withdraw their grievances.
"(d) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the following for paragraph 2(a).
"(a) Make its drivers whole for any loss they
may have suffered by reason of its refusal to pay
Sunday and holiday premium pay as required by its
contract and make its garage employees whole for
any loss they may have suffered by reason of its re-
fusal to pay the wage increases and COLA speci-
fied in its contract when due, in the manner set
forth in the remedy section of this decision."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT bypass the Union by bargaining
directly with unit employees about contract con-
cessions.
WE WILL NOT refuse to pay our drivers the
Sunday and holiday pay specified in our collective-
bargaining agreement.
WE WILL NOT refuse to pay our garage employ-
ees the wage increases and COLA specified in our
collective-bargaining agreement when due.
WE WILL NOT threaten our employees with re-
taliation if they do not withdraw their grievances.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make our drivers whole for any loss
they may have suffered by reason of our refusal to
pay Sunday and holiday premium pay as required
by our collective bargaining agreement , with inter-
est.
WE WILL make our garage employees whole for
any loss they may have suffered by reason of our
refusal to pay the wage increases and COLA speci-
fied in our collective-bargaining agreement when
due, with interest.
TRANSPORT SERVICE COMPANY
David M. Somers, Esq. and Barbara W. Van Auken, Esq.,
for the General Counsel.
Leonard R. Kofkin, Esq., of Chicago, Illinois, and Bruce
A. Petesch, Esq., of Raleigh, North Carolina, for the
Respondent.
James Hord, Esq., of Decatur, Illinois, for the Charging
Party.
TRANSPORT SERVICE CO.
Sheldon M. Chardone, Esq., of Chicago, Illinois, for
Teamsters Local Union No. 750, Intervenor.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge.
Teamsters Local Union No. 279 (Local 279) first filed a
charge in this proceeding on January 21, 1981 , and sub-
sequently filed additional charges against Transport
Service Company (Respondent). Pursuant to the charges,
the Regional Director issued a consolidated complaint al-
leging that Respondent , by various actions, has violated
Section 8(a)(1), (3), and (5) of the Act. A hearing was
held on these matters in Decatur, Illinois , on November
1, 2, and 3, 1982 , and in Peoria, Illinois , on February 1,
2, 3, 4, and 28 and March 1, 1983 . Briefs were received
from the General Counsel and Respondent.
Subsequent to the close of the record in this proceed-
ing, Teamsters Local Union No. 705 filed a motion to in-
tervene in the proceeding and to submit evidence reflect-
ing its interest in the matters under consideration. Local
705's motion alleges, and, the evidence introduced in this
proceeding confirms , that Local 705 has an interest in
many of the matters under consideration that is substan-
tially similar to the interest of Local 279. Therefore, I
will grant the motion to intervene to the extent of allow-
ing participation in,this proceeding in the future. There
is no need to present further evidence or testimony in
this proceeding and, therefore , I deny the request to do
so made by Local 705.
I. THE BUSINESS OF RESPONDENT
Respondent, Transport Service Company, of Hillsdale,
Illinois, engages in the business of for -hire truck trans-
portation pursuant to authority granted by the Interstate
Commerce Commission and provides service in interstate
commerce throughout the United States including oper-
ations to and from the State of Illinois. It has admitted
the jurisdictional allegations of the consolidated com-
plaint and I find that it is an employer within the mean-
ing of the Act and that it will effectuate the policies of
the Act to assert jurisdiction in this proceeding.
II. LABOR ORGANIZATIONS INVOLVED
Teamsters Local Unions Nos. 279 and 705 are labor
organizations within the meaning of Section 2 (5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The consolidated complaint alleges a number of viola-
tions of Section 8(a)(1), (3), and (5 ) of the Act and raises
a number of distinct issues . The issues can generally be
grouped under four main headings : (1) economic issues
raised by midterm reopening of the collective-bargaining
agreement between the parties; (2) the opening of non-
union operations by Respondent in, St. Louis , Missouri,
and LaFayette , Indiana ; (3) the use of Teamsters Local
705 drivers for work which Local 279 contends is prop-
erly that of its drivers ; and (4) whether Respondent's
113
overall conduct as presented in this record amounts to a
repudiation of the contract between it and Local 2719.
A. The Alleged Violations of the Act Relating to the
Midterm Modification of the Contract
Local 279 represents drivers and garage employees in
separate bargaining units at Respondent 's Decatur, Illi-
nois terminal . Local-279 is affiliated with the Internation-
al Brotherhood of Teamsters and at all times material to
this decision its member drivers employed by Respond-
ent were covered by the Central States Area Tank
Truck Agreement (Central States Agreement) and the Il-
linois rider to that agreement . Both of these agreements
were in effect during the period from November 15,
1979, to November 14, 1982. The Central States Agree-
ment was negotiated by the Central Conference of,
Teamsters (Central Conference) as a bargaining agent for
Teamsters local units , including Local 279, in a 13-state
geographical area covered by the agreement and by the
Labor Relations Advisory Association (LRAA), a multi-
employer bargaining association of trucking companies in
which Respondent was then a , member. The collective-
bargaining history between the Central Conference and
the LRAA dates back to 1970. The Illinois rider was ne-
gotiated on behalf of the Teamsters local unions, includ-
ing Local 279, in the State of Illinois by the Illinois Con-
ference of Teamsters (Illinois Conference) as their exclu-
sive bargaining agent ,and the employer negotiating com-
mittee of the Illinois Tank Carriers Association (ITCA),
a multiemployer bargaining association representing sev-
eral Illinois tank haulers, including Respondent . The pri-
mary purpose of the Illinois rider was to specify eco-
nomic terms and to outline deviations from the Central
States Agreement for Illinois drivers. Each of the other
12 States covered by the Central States Agreement had
similar riders including , among others, Indiana , and Mis-
souri . Teamsters Local No. 705 (Local 705) drivers em-
ployed by 'Respondent in the Chicago Metropolitan Area
are covered by separate joint area tank truck agreements
in effect during the period from November 1, 1979, to
October 31 , 1982 . Local 705 agreed to midterm conces-
sions and reductions in various economic provisions of
the joint area tank truck agreement during June 1982.
These concessions did not apply, to Local 279 drivers.
During November 1980 , there were approximately -49
Local 279 member drivers employed at Respondent's
Decatur terminal.
During all times material, Local 279 member-garage
employees employed by Respondent at its Decatur termi-
nal were covered by a local agreement, which was in
effect during the same time period as the Central States
Agreement and the Illinois rider . This local agreement
was negotiated directly between Local 279 and Respond-
ent. During November 1980, there were seven garage
unit employees at Respondent's Decatur - terminal.
By a telegram dated August 29, 1980, and by letter of
October 19, 1980, the LRAA requested the reopening of
the Central States Agreement and state riders with the
Central Conference. This followed Federal deregulation
of the trucking industry with resulting problems, caused
by competition by nonunion trucking companies and a
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
downturn in the economy generally. The LRAA's re-
quest was made pursuant to article 33 (reopening emer-
gency) of the Central States Agreement on behalf of its
employer members; including Respondent, in order to
obtain economic relief from contractual labor costs paid
to drivers covered by the agreement. Article 33 pro-
vides:
Reopening Emergency
In the event of war, declaration of emergency,
imposition of mandatory economic controls, the
adoption of a National Health Program or any Con-
gressional or Federal agency action, or change in
economic or competitive circumstances of the
unionized tank truck industry on a local, state or
area level, which has a significantly adverse affect
on the financial structure of the tank truck industry
during the life of this Agreement, either party may
reopen the same upon sixty (60) days' written notice
and request renegotiation of the provisions of this
Agreement directly affected by ,such action. There
shall be no limitation of time for such written
notice. Upon the failure of the parties to agree in
such negotiations within sixty (60) days thereafter
either party shall be permitted all lawful economic
recourse to support its request for revisions. If gov-
ernmental approval of revisions should become nec-
essary, all parties will cooperate to the utmost to
attain such approval. The parties agree that the
notice provided herein shall be accepted by all par-
ties as compliance with the notice requirements of
applicable law, so as to permit economic action at
the expiration thereof.
In the reopening request the LRAA proposed several
items to receive economic relief, including:
(1) Roll back the COLA which was effective
May 15, 1980;
(2) Request waiver of all projected COLA in-
creases for the life of the contract;
(3) Waive all time-and-one-half and double time
requirements of the contract, particularly where it
involves premium pay for Sunday work.
(4) Request a language change in Articles 28 and
29 to provide for pro-rate contributions to health,
welfare and pension funds;
(5) Waive the entire Article 24, Section 24-2, that
is, no guaranteed weekly minimum hours, or as an
alternative, a reduction of the guaranteed board
from 80 percent to 50 percent or less of the total
drivers put to work in any work week;
(6) Waive the additional holiday and sick day due
after November 15, 1980.
The LRAA negotiating committee met with the Cen-
tral Conference negotiating committee on November 5,
1980, and presented its proposals for relief . The Central
Conference refused to meet again until after November
24, 1980. The employers did not pay the scheduled No-
vember 15, 1980 increases in wages. In conjunction with
withholding increases, several employers attempted to
meet with their respective local unions and employees.
Several employers, including Respondent, did meet with
employees to explain their positions. Union representa-
tives did not attend these meetings Respondent held with
its employees, and Respondent presented its position di-
rectly to its employees.
Respondent held small group meetings with members
of Local 279 from mid to late November 1980, prompted
by a notice posted on the dispatch window of the Deca-
tur terminal that, in effect, stated that if employees were
interested in keeping, their jobs they should talk to Ter-
minal Manager Dave Robbins. Respondent also discussed
wage issues with a group of drivers and garage employ-
ees at a regularly scheduled safety breakfast in late No-
vember 1980. Jean Cripe, employed at the time as a De-
catur-based driver, testified that after seeing the notice
described, about November 15, 1980, he met with Rob-
bins and Executive Vice President Fred Eubler along
with the dispatcher in Robbins office. Eubler told Cripe
and another driver that Respondent was not going to
pay the contractually scheduled wage increase due on
that date because it could not afford to do so. Eubler
asked the drivers if they would both accept a pay cut.
Ron Shride, a Decatur-based driver, employed by Re-
spondent during late-November 1980, also' met with Rob-
bins and Eubler in response to the notice and was told
that Respondent was not going to pay the wage increase
due under the contract, including premium pay mileage
rate increases. In addition to the meetings described
above, Bill Coventry, Respondent's chief dispatcher at
that time, contacted drivers directly concerning waiving
premium pay for Sunday work. Coventry testified that
about Novembr 20, 1980, Robbins instructed him to con-
tact all the drivers and ask them if they would take loads
on Sunday without receiving premium pay. Coventry
then contacted, either in person or by telephone, ap-
proximately 15 Decatur-based drivers and asked them if
they would agree to work on Sunday without premium
pay. Coventry also instructed evening dispatcher Tim
Thiebaud to ask the remaining drivers if they would
forgo premium, pay. Coventry testified that Respondent
did not have permission from the designated bargaining
representatives of its employees to bargain directly with
the employees.
After the Central Conference denied the LRAA re-
quest to reopen the Central States Agreement, Respond-
ent held another safety breakfast on January 30, 1981, for
its employees. Bill Parrott, along with 2O to 25 other De-
catur-based drivers, attended this meeting at which Rob-
bins told the employees that Respondent could not pay
the wage increases and if it were forced to do so Re-
spondent would have no alternative but to "close the
barn." Robbins also told the drivers that the Teamsters
were suing Respondent as a result . Respondent 's person-
nel also urged the drivers in the meeting to cease filing
grievances with respect to the Sunday premium pay for
the sake of their jobs.
Respondent engaged in further individual bargaining
with its drivers and garage employees on June 12, 1982.
Supervisor Roger Bridgeman, who had succeeded Rob-
bins as the Decatur terminal manager during late March
TRANSPORT SERVICE CO.
1982, conducted a meeting with employees and no union
official was present. Bridgeman asked the drivers and
garage employees present to make wage concessions so
that the Decatur-based drivers could be paid the same as
the lower paid Chicago-based drivers who were covered
by a different contract. Bridgeman told employees that if
they made such concessions , he would guarantee that all
Decatur work would stay in Decatur and that laid-off
drivers would be recalled to work. The testimony of em-
ployees at this meeting indicated that Bridgeman was
told that he should talk to the Union about the request
for concessions and his response,was that if he had to
talk to the Union "the deal was off."
Local 279 Business Agent Jim Hord, a committee
member of the Illinois Conference, testified that he had
not been notified of these meetings . I find that these
meetings between Respondent' s 'management and super-
visory personnel directly with the involved Local 279
members, absent notice to 'their bargaining representa-
tive, constitutes a violation of Section 8(a)(5) of the Act.
See Sentle Trucking Corp., 260 NLRB 596 (1982).
The next meeting between the LRAA and the Central
Conference following the November 5 meeting was on
December 10, 1980. During that meeting the Teamsters
took the position that they denied the employers' notice
of reopening. 'Thereafter, charges passed between the
parties and lawsuits were filed. Hord wrote to at least
three companies protesting their failure to pay the No-
vember 15, 1980 increases. However, the parties did con-
tinue to talk.
The next meeting of note between the LRAA and the
Central Conference negotiating committee following the
December 10 meeting was held in May 1981. This meet-
ing was held pursuant to an earlier concession by the
Central Conference wherein the employers were told
they could seek relief at a state or local level. One condi-
tion for the meetings was that the carriers agreed to pay
the November 15, 1980 increases. The carriers agreed
and the Teamsters agreed to allow the payments to be
spread out over a 3-month period of time. The parties
did meet about May 7, 1981, and agreed to put the em-
ployers' proposal for relief to a vote of the membership.
Respondent urges ' that it was also understood that the
May 15, 1981 scheduled increases would not be paid
pending the vote. Also part of the agreement provided
that the parties withdraw all the charges against one an-
other. The vote was scheduled for June 19, 1981, and al-
though the vote at Respondent's Local 279 was in favor
of the employers' position, the statewide Illinois count
was against the employers' proposals by a margin of 210
to 200.
About September 14, 1981, the LRAA sent a telegram
to the Central Conference stating its intention to reopen
the contract. The Central Conference of Teamsters
stated that they did not believe the contract should be
reopened but agreed to hear LRAA's proposals at an al-
ready scheduled November 1981 meeting. Thereafter,
the parties met, negotiated, and made an agreement that
included the following key points:
(a) The carriers would pay the May 15, 1981, in-
creases over a stated period of time;
115
(b) The November 15, 1981 increases were
frozen; and
(c) Any legal action still in existence at that point
would be dropped.
The Illinois Conference of Teamsters supported their
proposed relief and the membership on November 22
voted its approval . The addendum to the Illinois rider to
the Central States Area Tank Truck Agreement was
signed by both Fred Ubler for Respondent and James
Hord , both of whom participated in the negotiations.
This agreement effectively covered all the COLA in-
creases discussed above as well as wage increases for all
affected employees except garage employees . Payment of
these COLA and wage increases pursuant to the terms of
the agreement was part of a settlement with the Board
reached by all the LRAA members against whom
charges had been filed with the Board; by the Teamsters.
I can-see no purpose that would be served by abrogating
the agreement with respect to these COLA and wage in-
crease payments, and thus will not find that Respondent
committed an unfair labor practice by its actions with re-
spect to these increases insofar as they are covered by
the agreement . However, there are other economic issues
involved that are not part of the agreement and for
which I will find Respondent 's actions constituted unfair
labor practices.
1. The garage employees
As noted above, the Decatur terminal mechanics tank
truck trailer washers and other bargaining unit garage
employees were covered by a separate collective-bar-
gaining agreement between Local 279 and Transport
Service Company. The language of the agreement con-
forms in many respects to that of the drivers' agreement.
In the first round of negotiations, garage employees did
not figure in the discussion between the Teamsters and
the LRAA. During' the second reopening negotiations,
the freezing of the garage employees' increases was part
of the relief sought by the carriers. Approximately five
union locals in Illinois had garage employees 'under the
Teamsters contract. It was Respondent's understanding
that the mechanics would be voting with the drivers on
November 22, 1981, and some locals did so. Local 279
did not vote' its garage employees and the affected carri-
ers protested. The affected carriers, Transport Service
and Roger Cartage Company, froze the garage employ-
ees increases in accordance with the addendum to the Il-
linois rider ratified on November 22, 1981. The company
maintains that the addendum was intended to cover the
garage employees with Local 279 taking the opposite po-
sition. In March 1983, Roger Cartage Company and
Local 279 successfully completed negotiations on a new
agreement covering garage employees for the period
from November 15, 1982, to November 14, 1985. As part
of that agreement, all issues on back' wages owed to the
garage employees were resolved. Transport Service
Company agreed to the same settlement and paid the
back wages on April 8, 1983. No outstanding grievances
remained between the parties under the 1979 to 1982
agreement with respect to garage employees. However, I
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that Respondent's refusal to pay the back wages in a
timely fashion constitutes a violation of Section 8(a)(5) of
the Act.
2. Sunday holiday premium pay
The Illinois rider called for premium pay (double time)
for drivers when work was performed on Sundays on a
nonteam basis . Respondent did not pay its drivers premi-
um pay for nonteam Sunday work that they, performed
during the months from November 2, 1980, to February
22, 1981. Respondent's payroll records indicate that
during the, periods from March 1 to December 31, 1981,
and January 1 to September 6, 1982, Respondent did not
always pay its drivers premium pay for nonteam Sunday
work. The Central States Agreement and Illinois rider
set forth certain holidays throughout the contract period
for which drivers were to be paid premium (double time)
when they worked on a nonteam basis for an additional
4 hours or straight time (after working 8 hours of
straight-time pay) when they worked on a team basis.
Respondent did not pay its drivers the rate of holiday
work during the period from October 27, 1980, through
October 31, 1981. Respondent's payroll records indicate
that during the period from September 1, 1981, through
September 30, 1982, Respondent did not always'pay its
drivers premium pay for work done on contractually
designated holidays. The Company felt it necessary to
eliminate premium pay because of the competitive situa-
tion in the Decatur area. However, no agreement was
ever reached with respect to the Company's refusal to
pay the premium called for by the contract and the
money owed for the premium pay under the contract
cannot be avoided. Therefore, I find that Respondent
violated Section 8(a)(5) of the Act by its refusal to pay
the premium pay for holiday and Sunday work pursuant
to the contract and it will be ordered that it make its af-
fected drivers whole for work performed by them re-
quiring premium pay which they did not receive. In a re-
lated matter, Bill Parrott, a Decatur-based driver, testi-
fied that on January 8, 1981, Coventry approached him
at the Decatur terminal concerning a grievance Parrott
had filed through Local 279 because he had not been
paid premium pay for Sunday work. Coventry told Par-
rott that if he did not pull his grievance Respondent
would take away the late model tractor he had driven
for approximately 2 years and give him an older tractor
to drive. Parrott refused to withdraw the grievance and
it was subsequently settled and Parrott's equipment was
not transferred . However, the threat by Coventry is a
clear violation of Section 8(a)(1) of the Act, and I so
find.
B. Alleged Failure of Respondent to Utilize Decatur
Terminal Drivers at its St. Louis and LaFayette
Operations
Article 1.1 (operations covered) of the Central States
Agreement provides that all Respondent's operations
within, into, and out of the 13 States specified in the con-
tract including, in part, Illinois, Missouri, and Indiana are
covered by the contract. Article 1.2 (employees covered)
provides that all Respondent's employees within Local
279's jurisdiction who are or come to be represented by
Local 279 are covered by the contract. Article 2.1(b) is a
"union security" clause . Article 10 (work assignments)
provides that Respondent must assign all work to Local
279 drivers in order to preserve their work and agrees to
respect the work jurisdictional rules of the Union. In ar-
ticle 37(b) (subcontracting), Respondent agreed, for the
purpose of preserving work for Local 279 drivers and
job opportunities assigned to Local 279 Decatur terminal
drivers pursuant to article 10, that none of their work
performed as of the inception of the contract (November
15, 1979), or thereafter assigned to Local 279 drivers
during the 3-year contract, would be subcontracted,
transferred, or reassigned to its employees in any other
local unions or nonunion employees of Respondent.
In the event that Respondent opened any permanent
branches, terminals , divisions, or operations during the
term of the contract, Respondent agreed to offer Local
279 drivers to transfer to regular positions to follow the
work in accordance with Decatur termimal seniority if
Decatur operations were affected, in whole or in part, by
the opening of the new operation(s). Article 5 of the Illi-
nois rider (seniority) provides that Respondent would
observe Local 279 drivers , seniority with limited excep-
tions not applicable to this proceeding. Article 1.5 (non-
covered units) provides that the agreement would not be
applicable to operations of the employer where the em-
ployer is covered by a collective-bargaining agreement
with a union not signatory to the agreement or to those
employees who have not designated a signatory unit as a
collective-bargaining agent.
As pertinent to this proceeding, in late 1981 and con-
tinuing into 1982 and thereafter Respondent began sub-
stantially increased operations in St. Louis, Missouri, and
Lafayette, Indiana. After an initial, period in which
transportation services were performed at these locations
by,Decatur Local 279 and Chicago Local 705 drivers,
Respondent employed a substantial number of nonunion
drivers and began performing virtually all services from
these locations with such drivers., It is the position of
Local 279 that it has historically served the shippers, lo-
cated at these locations and that pursuant to the provi-
sions of its contract, its drivers should have been afford-
ed the opportunity to transfer to these locations to per-
form the work-pursuant to contractually agreed to wages
and benefits as such operations affected the Decatur ter-
minal's work in whole or in part. On the other hand, Re-
spondent contends that its operations with nonunion
drivers at St. Louis and LaFayette are wholly new oper-
ations, which do not affect, in whole or in part, the De-
catur terminal. Therefore, pursuant to section 5.5, article
1, of the agreement, it had no obligation to afford Deca-
tur drivers an opportunity to transfer.
Prior to July 1981, Respondent had very limited oper-
ating authority from the Interstate Commerce Commis-
sion. Essentially, the Company had authority from Chi-
cago to seven or eight States on specified commodities,
chemicals, and food products. Respondent also had some
interstate authority from Decatur, Illinois, and fragment-
ed authority in other areas. The only authority the Com-
pany had out of St. Louis was a 30-day emergency tem-
TRANSPORT SERVICE CO.
porary authority and a temporary authority during a
winter period when barge and rail service was disrupted.
Regarding LaFayette, Indiana, Respondent had little or
no authority.
Because of deregulation and a worsening economy,
Respondent applied to the Interstate Commerce Commis-
sion for 48-state operating authority and on July 20,
1981, the authority was granted. About the same period
of time that it was seeking new authority, Respondent
also attempted to meet its competitions' lower rate struc-
ture. As early as 1979 it began developing its plan, which
included not only 48-state authority but continuous
movement rate structure. Continuous movements al-
lowed the Company to link loads for rate purposes even
though there was some dead heading involved either at
the beginning of, during, or at the end of the movement,
so long as the trip had 51-percent loaded miles.
1. St. Louis, Missouri operation
With respect to its operations at St. Louis, Missouri,
Respondent's officials testified that in approximately 1976
Respondent began hauling sweetners for ADM Corn
Sweetners out of Chicago, ADM Corn Sweetners started
a rail-truck transfer and distribution point in Chicago,
which serviced, among other places, Missouri (including
St. Louis) and Kentucky. The startup was slow but after
a period of time business was sufficient for Respondent
to assign equipment to ADM Corn Sweetners' Chicago
facility.
In approximately 1980, ADM Corn Sweetners decided
to build a distribution and sugar melting facility in St.
Louis. Terrence Wilson, vice president of operations for
the Corn Sweetners Division of ADM,; testified about
the St. Louis operation. He testified that Corn Sweetners
built the St. Louis facility to receive bulk sugar, melt it
down, and sell it as either sucrose or invert sugar. The
St. Louis station also blends sugar with Corn Sweetners'
fructose products and corn syrup products. In addition,
St. Louis stores some fructose corn syrup-products and
regular corn syrup products for either, direct shipment to
its customers or customer pickup. The Decatur plant of
ADM Corn Sweetners is a different 'type operation. The
Decatur plant does two things: (1) it manufactures alco-
hol for fuel, and (2) processes corn for making fructose.
Wilson testified that the St.' Louis operation was totally
separate and distinct from ADM Corn Sweetners in De-
catur.
Respondent seeks to make two points with respect to
the St. Louis operation. First, it points to the long-term
and dominant presence of Local 705 drivers on St. Louis
origin loads. See table below:
HISTORICAL ANALYSIS OF ST. LOUIS
ORIGIN SHIPMENTS HANDLED BY
TEAMSTERS LOCAL 705 DRIVERS AND
OTHERS
117
Year Chico-go 705
Deco-
279
St.
Louis
Lafay-
ette
Other Total
1973........... 1 1
1974........... 14 14
1975....... 6 26 32
1976......... 15 17 32
1977.......... 11 8 10 29
1978........... 24 7 31
1979........... 100 1 1 102
1980........... 40 9 1 50
1981........... 24 21 12 3 60
1982.......... 39 38 525 9 fill
The second point is that St. Louis was a startup oper-
ation. The construction of ADM Corn Sweetners' facili-
ty was not completed until December 1981 and its traffic
for customers did not really begin to flow until after the
first quarter of 1982. Thus, although the first load of
corn- syrup was shipped in February 1981, traffic was
limited. During the startup period, which lasted until
April 1982, Corn Sweetners in St. Louis used a variety
of tank truck carriers, mostly local St. Louis 'companies.
As for Transport Service Company during that period, it
had a very small part of the St. Louis business. The St.
Louis ADM operation began full scale in April 1982. At
that time, Respondent began leasing property from Corn
Sweetners to park its equipment, leased a wash-facility,
negotiated rates with Corn Sweetners in St. Louis, hired
drivers for the St. Louis operation, and placed equipment
from other locations in St. Louis. The St. Louis drivers
were hired and supervised by Respondent's personnel in
Chicago.. Respondent arranged to use Corn Sweetners'
office facilities and it was also arranged that the St
Louis drivers would be dispatched informally by Corn
Sweetners' personnel, who then notified Respondent
where the loads were to be sent. At first, notification
was made to Corporate Continuous Movement Coordi-
nator Mike Thebaud, who is located in Decatur. Howev-
er, this notification was shortly thereafter moved to Chi-
cago central, Respondent contends that Thebaud was not
a Decatur dispatcher but a .corporate employee and
though physically located in Decatur was, in fact, used
to dispatch continuous movements and broker corpor-
atewide.
Respondent also urges that the impact of the St. Louis
station was on Chicago's, not Decatur's, traffic. Accord-
ing to ADM Corn Sweetners, the Company's ability to
deliver fructose to customers direct from St„ Louis or
from Decatur has not changed. When, ADM built the St.
Louis station, it continued to ship from Decatur to vari-
ous customers and the St. Louis facility has had no affect
on loads originating in Decatur. Records introduced at
the proceeding also show that Corn Sweetners in St.
Louis and Corn Sweetners in Decatur did not ship to the
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same consignees except in three instances over a 2-year
period.
2. The LaFayette, Indiana operation
In 1977, A. E. Staley Manufacturing Company built a
plant in LaFayette, Indiana, to produce high fructose
corn syrup. At the time of construction of the plant,
Staley arranged for both truck transportation and rail
transportation. LCL Transit was awarded exclusive car-
rier status for the plant. Staley requires that its primary
carrier is to have physical facilities and adequate sanita-
tion facilities in close proximity to the plant. LCL had
none and as a condition of the award of the traffic it
agreed to build and did build a terminal facility (right
along with Staley's construction of its plant). Respondent
was aware of Staley's arrangement with LCL Transit
and it had a very limited opportunity of picking up spo-
radic business as backup carrier. Respondent's records
show a breakdown of how Transport serviced LaFay-
ette, Indiana, over a period of time:
HISTORICAL ANALYSIS OF LAFAYETTE
ORIGIN SHIPMENTS HANDLED BY
TEAMSTERS LOCAL 705 AND OTHERS
Year Chica-go 705
Deca-
279
St
Lours
Lafay-
ette Other Total
1977.......... 4 4
1978 .......... 24 11 32
1979........... 96 7 103
1980........... 0
1981........... 28 12 1 17 1 59
1982........... 109 17 5 65 3 199
Respondent witness Eubler testified that over the years
Transport Service had done very little business hauling
for Staley and virtually none for Anheuser-Busch, an-
other shipper located at LaFayette. To establish better
business at that location, Respondent assigned a salesman
to Anheuser-Busch and in conjunction with the sales
effort stationed some of the Company's equipment in the
LaFayette area and hired drivers. Eubler contends that
at that point he had a LaFayette terminal. Shortly there-
after, in March 1982, the Anheuser-Busch plant was pur-
chased by Staley. Respondent approached Staley about
handling some of this business and was told that LCL
would be the Company's primary carrier with one other
tank line receiving the rest of the business. An officer of
Staley's testified that Staley's Decatur plant produces
corn syrup and dent starches. The LaFayette plant pro-
duces exclusively a high fructose corn syrup. No high
fructose corn syrup is made at the Decatur plant. Deca-
tur and the LaFayette plants are separate profit centers
and, from an operational standpoint, completely separate
with different management and management methods.
The acquired Anheuser-Busch plant produces corn syrup
of a different grade than the Decatur plant and produces
both dent and waxy starches . The Decatur and LaFay-
ette plants have different customers for their products
due in part to the difference in grade of their corn syrup
products and due in part to Staley acquiring the An-
heuser-Busch plant to increase its market share.
The witness for Staley testified that the LaFayette
plant did not take work from the Decatur plant. The
witness further testified that if the acquisition of the An-
heuser-Busch plant did affect traffic at Decatur it prob-
ably only affected the rail side of the business. Respond-
ent also offered that the LaFayette operation was sepa-
rate from Decatur and was supervised by its Chicago
South terminal. Labor relations in Decatur were con-
trolled on a day-to-day basis by Terminal Manager
Roger Bridgeman. Labor relations in LaFayette, Indiana,
as in St. Louis, Missouri, were controlled on a day-to-
day basis, but by Tom Dennis and Bill Burger at the
Chicago terminals. The LaFayette drivers were hired by
Chicago not Decatur.
Based on all the evidence offered, I find that the oper-
ations in question in St. Louis and LaFayette, Indiana,
were new operations for Respondent. Certainly in the
case of the Corn Sweetners operation in St. Louis, the
operation was new for the shipper as well. The relatively
few loads handled by Local 279 drivers out of LaFayette
and St. Louis in the past and the few loads handled in
the initial stages in the beginning of the new operation
do not give a clear contractual right to view the new op-
erations as an accretion to Local 279's existing oper-
ations. If they do, certainly Local 705 has at least as
much right to claim a portion of the traffic as an accre-
tion to its operation.
Moreover, the St. Louis origin and the LaFayette
origin traffic is within the jurisdiction of other Teamsters
Locals that, as of the date of the hearing, had not chosen
to seek to represent the drivers employed at St. Louis or
LaFayette. Respondent has not shut down its Decatur
operation nor ceased serving with Decatur drivers any of
the shippers Decatur drivers had historically served in
the Decatur area. I cannot find that the new operations
in St. Louis or LaFayette significantly affect traffic his-
torically handled by Local 279 drivers. Thus, Respond-
ent's argument that such traffic is outside the contract
pursuant to sections 1.5 and 5.5 has legitimacy.
The record reflects that Respondent and Local 279
have regularly settled disputes over alleged transfers of
work from the bargaining unit pursuant to the contrac-
tual grievance and arbitration procedures set up by their
collective-bargaining agreement . Deferral to the griev-
ance procedure would accomplish several worthy ends
that a decision in this forum would not allow. First,
Local 705 would be able to present its position; second,
Respondent and Locals 279 and 705 would be in a bar-
gaining posture with respect to the new operations; and,
third, interpretation of the contracts or provisions would
be accomplished by persons intimately familiar with the
intent of the provisions and past practice in interpreting
them. Respondent has repeatedly requested that this
matter be deferred, expressing its willingness to submit to
the grievance arbitration process.
For the reasons set forth above, I will recommend that
the complaint, insofar as it alleges a violation of the Act
for use of nonunion drivers at St. Louis, Missouri, and
LaFayette, Indiana, be dismissed. I further recommend
TRANSPORT SERVICE CO.
that the dispute be deferred to the parties' contractual-
grievance arbitration procedures. Respondent will be-or-
dered to provide promptly all relevant information re-
quested by either Local 279 or Local 705 for use in proc-
essing this matter.
C. Alleged Use by Respondent of Local 705 Drivers to
Serve Shippers Historically Served by Local 279
Drivers
Respondent's Local, 705 drivers have long been per-
mitted under the Central States Agreement and the Illi-
nois rider to handle backhaul loads and overflow loads
from shippers historically serviced by Local 279 terminal
drivers in and around Decatur. Local 279 drivers under
similar circumstances have been permitted to handle traf-
fic originating in the jurisdiction of Local 705. Dead-
heads into the jurisdiction of another local by foreign
domiciled drivers have generally not been deemed per-
missible under the contracts.
Mid-1982, midterm wage and, benefit concessions by
Local 705 reduced its driver members compensation and
benefits to a level below those then paid to Local 279
drivers. Following the concessions , Respondent in-
creased its use of Local 705 drivers from its two Chicago
terminals to haul loads from shippers historically served
by Decatur terminal drivers. Local 279 contended that
many of these additional loads were nonpermissible
deadhead loads and filed numerous grievances on behalf
of its members in early June 1952. Respondent contends
that a loss of A. E. Staley Manufacturing Company
loads, due to uncompetitive rates, resulted in the loss of
some Chicago destination loads by Decatur terminal
drivers. Respondent further contends that. many of the
loads handled by Local 705 drivers deemed to be dead-
heads by Local 279 were in fact permissible "overflow"
loads or "continuous, movement" loads, both of which
are legitimate under the contract. At the hearing, the
loads in question, which numbered in the hundreds, were
the subject of some off-the-record negotiation between a
representative of Local 279 and a representative of Re-
spondent. In the few 'hours that'the two representatives
studied the matter , the dispute with respect to a great
number of the loads was resolved to the satisfaction of
both sides. The evidence of record does not contain the
information necessary ' for this judge to make a determi-
nation on a load -by-load basis of which hauls were per-
missibly handled by Local 705 and which were not.
Based on the fact that such disputes have historically
been handled to the satisfaction of the parties by negotia-
tion and by the contractual grievances procedure, I find
that the deferral of this dispute to the grievance process
of the parties to be the only satisfactory method pf set-
tling the dispute. As was the case with the St. Louis and
LaFayette new operations, this matter also significantly
involves the interests of Local 705. Under the parties'
grievance procedures Local 705 would be afforded the
opportunity to present its position with respect to the in-
volved loads, a position not amplified in this record
There is nothing offered in the record by Local 279,
except a complaint that Respondent has not provided it
with sufficient information to process a grievance, that
would argue against deferral to the grievance process for
119
resohitiori of this dispute. Therefore, I will recommend
that the complaint be dismissed insofar as it alleges a vio-
lation of the Act regarding use of Local 705 drivers to
handle alleged Local 279 jurisdictional traffic and will
defer the matter to the parties ' grievance procedure. I
will further order that Respondent immediately produce
all relevant and necessary information desired by Local
279 or Local 705 to properly process the grievance.
D. Alleged Failure of Respondent to Comply with the
Guaranteed Workweek Pay Provisions of the Contract
The Illinois rider article 24, section 24.1, provides as
follows:
All drivers shall be paid on the basis of a guaran-
teed work-week of forty-eight (48) hours. It is un-
derstood and agreed that not less than eighty per-
cent (80%) of the total number of drivers put to
work in any work week will be guaranteed the min-
imum weekly hours above. The following schedule
will indicate the pattern of the guaranteed board.
Driver
Employed
Number,to
be Extra
1 0
2-8 1
9-12 2
13-16 3
17-20 4
21-24 5
25-28 6
29-32 7
33-36 8
37-40 9
41-44 10
45-48 11, etc.
The representative of Local 279 testified that past prac-
tice under the guaranteed workweek language requires
that 80 percent of the employees who work in a given
week are guaranteed either 48 hours of work or pay for
48 hours. Respondent's representative contended that the
contract language meant that 80 percent of the highest
number of drivers working in any given day during, the
week is the, number of drivers entitled to 48 hours of
work or pay. Respondent further contends that it has
paid the weekly guarantee to all the Decatur drivers
who were entitled to it. Both Respondent and Local 279
presented exhibits showing the number of drivers each
contends would be entitled to the guaranteed pay. Re-
spondent urged that the General Counsel 's exhibits in
this regard were inaccurate because a number of drivers
shown as available for work were in fact unable to work
because they were not qualified to haul particular materi-
als, were not reachable by phone, or refused to return
,before the end of the contractual ^2-week callback period.
The exhibits, were prepared from different sources of in-
formation and it'is virtually impossible to determine from
the evidence which , if either, exhibit is accurate.
Here again ,, the parties have presented to the Board a
dispute which has historically been settled in the parties'
grievance process. It involves both a dispute over past
practice in interpreting the relevant contract provisions
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and a dispute over how to interpret company and union
records . I believe the matter would best be decided by a
grievance committee familiar with the past practice of
the industry under , the contract involved . It is clear to
me that a , determination of issues here must be made on
an instance-by-instance basis, a feat that cannot be ac-
complished from this record . There does not appear to
me to be any credible evidence to prove that Respondent
has consciously violated the Act by denying its involved
employees their contractually guaranteed workweek pay.
There is a bona fide dispute between the parties concern-
ing the interpretation of the contractual provision based
on industry practices . Therefore, I find that Respondent
has not violated the Act by its actions in this regard and
will recommend dismissal of the complaint insofar as it
alleges such a violation.
On the other hand, as a dispute still exists concerning
whether certain employees of Local 279 are due guaran-
teed pay, I will defer to the parties grievance procedure
and order Respondent to make available all relevant in-
formation necessary_ to process a grievance by Local 279
to determine whether guaranteed workweek pay is
owing to its driver members.
E. Alleged Illegal Layoff of Local 279 Drivers and
Transfer of Equipment
The General Counsel asserts that Respondent , between
November 11, 1981 , and through October 26, 1982,
transferred 12 tractors that had been assigned to and uti-
lized by Local 279 drivers to nonunion drivers for use in
the new St . Louis operation . The General Counsel also
asserts that the Decatur seniority list shows that the total
number of Local 279 drivers employed declined from 49
during August 1980 , to 36 by June 1982, to 31 by No-
vember 1982 or by more than one-third . He contends
that Local 279 drivers had been laid off and bargaining
unit equipment relocated from the Decatur terminal to
artificially create an overflow load situation to facilitate
use of Local 705 drivers to handle traffic historically
handled by Local 279 drivers.
Respondent admits that it did relocate the 12 units of
equipment to St. Louis and in addition brought in what it
considers to be excess equipment from throughout its
system to create the full complement of equipment
needed at LaFayette and St . Louis . As I have found that
the operations at St . Louis and LaFayette were essential-
ly new operations involving , new traffic , any layoffs of
drivers at the Decatur terminal due to lack of work
could not be attributed to those two operations. Re-
spondent contends that the layoff of employees and
transfer of excess equipment at Decatur resulted from a
reduction in business in the Decatur area because of the
recession . There is no doubt about the fact that the re-
cession did affect the work available for the Decatur unit
and resulted in some of the drivers being laid off. Wheth-
er the layoffs were in part caused by an impermissible
use of Local 705 drivers to handle work contractually
that of Local 279 drivers will be decided in the griev-
ance arbitration process. If, as contended by the General
Counsel, an "overflow" situation was artificially created
by the layoffs and transfer of equipment , the grievance
procedure would make whole those drivers affected. The
grievance procedure determination would be necessary
before it can be determined whether the equipment trans-
ferred to St. Louis was truly excess equipment or wheth-
er the excess was artificially created . Respondent demon-
strated by its records that it does shift equipment from
terminal to terminal on a regular basis to meet changing
traffic demands . Respondent clearly has the right to shift
equipment if, in fact , the equipment is excess equipment
and its transfer does not deprive bargaining unit members
of work which otherwise would be available to them. I
believe these two matters , that is, whether the transfer of
equipment and the layoff of Decatur drivers was proper
will be disposed of in the grievance determination of
whether Decatur drivers were entitled to some or all of
the St . Louis and LaFayette origin new traffic and/or
loads handled by Local 705 from Decatur area shippers
that Local 279 drivers are entitled to serve . I cannot find
from the evidence presented that Respondent 's actions in
transferring equipment and the laying off of its Decatur
employees are violations of the Act, and are not a bar to
deferral of those matters in dispute that I have heretofore
determined to be proper for deferral to the grievance
procedure.
IV. CONCLUDING FINDINGS /
I have heretofore found that Respondent has violated
Section 8(a)(1) and (5) of the Act by bypassing the
Union, bargaining with its employees , and threatening its
employees for processing grievances, and I will order
that it cease and desist from such actions . I have also
found that Respondent has violated the Act by refusing
to pay Sunday and holiday premium pay to its drivers in
violation of its contract and will order that it make its
drivers whole for any sums owed to them because of
such refusal . The remaining issues in this proceeding, viz:
whether the new operations instituted by Respondent at
St. Louis, Missouri , and LaFayette, Indiana, constitute
work that should be that of either Local 279 or Local
705; whether Local 705 is performing work that should
be that of Local 279; whether Respondent is properly
complying with the guaranteed workweek provisions of
its contract with Local 279; and whether equipment
transferred from the Decatur terminal to the St . Louis,
Missouri operation and layoffs at the Decatur terminal
were permissible under the contract, I will defer to the
parties' grievance and arbitration procedures . See Collyer
Insulated Wire, 192 NLRB 837 (1971), and United Tech-
nologies Corp., 268 NLRB 557 (1984). I will further order
that Respondent make available to either Local 279 or
Local 705 representatives any and all relevant material
necessary to properly process these matters through the
grievance and arbitration procedure.
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times material
herein , an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local 279 and Local 705 have, at all
times material herein , been labor organizations within the
meaning of Section 2(5) of the Act.
TRANSPORT SERVICE CO.
3. By meeting with its employees without notice to the
Union to attempt to convince bargaining unit members
to accept midterm concessions under their contract, Re-
spondent has violated Section 8(a)(5) of the Act.
4. By refusing to pay Sunday and holiday premium
pay to its bargaining unit members in violation of its con-
tract with them , Respondent has violated Section 8(a)(5)
of the Act.
5. By threatening to change a driver 's equipment if he
did not withdraw a grievance , Respondent has violated
Section 8(a)(1) of the Act.
6. The unfair labor practices set out above affect com-
merce within the meaning of Section 2 (6) and (7) of the
Act.
7. Respondent has not engaged in other unfair labor
practices as discussed above.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order that
Respondent cease and desist from engaging in its unfair
labor practices and take certain affirmative actions de-
signed to effectuate the policies of the Act.
Respondent, having engaged in unilateral bargaining
with bargaining unit members without notice to the
Union to pursuade them to accept contractual conces-
sions, is ordered to cease and desist from such action.
Respondent, having refused to pay Sunday and holiday
premium pay to bargaining unit members in violation of
its contract, is ordered to make whole such bargaining
unit members for any loss they may have suffered by
reason of Respondent's unlawful action. All backpay due
under the terms of this order shall be computed, with in-
terest, in a manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1960); Florida Steel Corp., 231 NLRB 651
(1977); and Isis Plumbing Co., 138 NLRB 716 (1962).
I will defer the other issues remaining in this proceed-
ing to the parties grievance and arbitration process, with
an order that Respondent promptly make available to the
Union all relevant information necessary to process the
matters through the grievance and arbitration proce-
dures.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Transport Service Company, Hills-
dale, Illinois, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Without notice to the Union, bargaining unilateral-
ly with bargaining unit members in an attempt to encour-
age such members to accept concessions in their contract
with Respondent.
121
(b) In'any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
(c) Refusing to pay Sunday and holiday premium pay
as called for in its collective-bargaining agreement with
the Union.
(d) Threatening its employees with changes in equip-
ment assigned to them if they do not withdraw, their
grievances.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole those bargaining unit members whom
Respondent failed and refused to pay Sunday and holi-
day premium pay as required by its collective-bargaining
agreement with them for any loss they may have suf-
fered in the manner set forth in the section of this deci-
sion entitled "Reme,dy."
(b) Post at its facility in Decatur, Illinois, copies of the
attached notice marked "Appendix."2 Copies of the
notice, on forms provided by the Regional Director for
Region 33, after being signed by the Respondent"s au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that, in all other re-
spects, this complaint is dismissed provided that:
(1) The Respondent waive any time limitation provi-
sions of the grievance arbitration clauses of the collec-
tive-bargaining agreement so that the Unions grievances
can be processed in accordance with the Order.
(2) That the parties, with reasonable promptness,
submit to the grievance arbitration process of their col-
lective-bargaining agreement each of the issues which I,
have deferred in this decision to such process.
(3) Respondent promptly makes available to the Union
all relevant information the Union deems necessary to
properly process the grievance encompassed by this
Order.
(4) Jurisdiction of this proceeding is retained for the
limited purpose of entertaining an appropriate and timely
motion for further consideration on a proper showing
that either (a) the dispute has not, with reasonable
promptness after issuance of this decision, either been re-
' If no exceptions are filed as provided by Sec. 102.46 of the Board's 2 If this Order is enforced by a judgment of a United States court of
Rules and Regulations, the findings, conclusions, and recommended appeals, the words in the notice reading "Posted by Order of the Nation-
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcing an Order of the National
poses. Labor Relations Board."
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solved by amicable settlement in the grievance procedure or arbitration procedures have not been fair or regular or
or submitted promptly to arbitration, or (b) the grievance have reached a result which is repugnant to the Act.