United Contractors Inc.

National Labor Relations Board - Board Decisions

Aug 9, 1979

244 N.L.R.B. 72 (N.L.R.B. 1979)

I)I(ISIONS ()1: N I IIONAl IABOR RL.ATIONS BOARI)
Ulnited Contractors Incorporated, JMCO Trucking
Incorporated, Joint Employers and Teamsters
"(eneral" lA)cal Union No. 200, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Cases 30 'A 4253, 30('A-4437, 30-CA 4264,
and 30 ('A 4485
August 9, 1979
I)lXISION AND ORDER
BY MI MlB1IRS PNIII.,() MURPIIY ANI) TRUIiSI)AI. I
On March 13, 1979, Administrative law Judge
Karl . Buschmann issued the attached Decision in
this proceeding. Thereafter, Respondents filed excep-
tions 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 brieft
and has decided to affirm the rulings, findings.2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
On September 19, 1975, in Case 30 CA 2885 (220
N LRB 463), the Board found, inter alia, that the same
Respondents had violated Section 8(a)(5) of the Act
by failing to abide by the terms of their collective-
bargaining agreement with the Union, by dealing di-
rectly with the unit employees in respect to their
terms and conditions of employment, and by chang-
ing their employees' terms and conditions of employ-
ment without bargaining with the Union. The Court
of Appeals for the Seventh Circuit subsequently en-
forced the Board's Order on June 23, 1976.3 There-
after, on January 17, 1977, the Supreme Court denied
Respondents' petition for certiorari.4
Following the Supreme Court's ruling the Board
sent a letter to the parties, requesting that they com-
mence bargaining pursuant to the Board's Order. The
Union, by letter of February 3, 1977, proposed a
meeting with Respondents for February 15. While
I Respondents have requested oral argument. This request is hereby de-
nied. as the record. exceptions. and brief adequately present the issues and
the positions of the parties.
2 Respondents hase excepted to certain credibility findings made by the
Adminlistrativ'e Law Judge. It is the Board's established policy not to over-
rule an administrative law judge's resolutions with respect to credibility un-
less the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard D
'
Wall Produit, In/.. 91 NIRB
544 (1950), enld. 188 .2d 362 (3d (it. 19511 We have carefully elanined
the record and find no basis fr resersing his findings.
3539 F.2d 713.
'429 U.S. 1061.
'All dates herein are in 1977, unless otherwise indicated.
agreeing to the bargaining session, Respondents also
indicated in their response, dated February 9, that
they would terminate the existing contract on its expi-
ration date. May 31. For reasons not disclosed by the
record, the parties did not begin to negotiate a new
contract until February 22. The meeting on that date
ended abruptly when Respondents insisted on tape-
recording the bargaining session. The Union refused
to negotiate under this condition.
Both sides submitted their bargaining proposals, in
writing, prior to the next meeting, on May 24. The
Union's proposal was based primarily on the expiring
contract. B contrast, Respondents' demands con-
tained several important revisions, including a strong
management-rights clause and an across-the-board
20-percent wage reduction for the three unit employ-
ees. 'The second meeting lasted less than I hour, as the
parties were unable to agree on any significant issues.
Both sides agreed that they had reached an impasse
in their negotiations. There were no further contract
discussions.
Based on these facts, the Administrative Law
Judge found in the instant case that Respondents had
violated Section 8(a)(5) of the Act when they refused
to bargain in good faith with respect to the terms and
conditions of a successor agreement. We agree with
the Administrative Law Judge's finding for the rea-
sons set forth below.
Section 8(a)(5) of' the Act establishes a duty "to
enter into discussion with an open and fair mind, and
a sincere purpose to find a basis of agreement."
N. L. R. B. v. HeIrrman .Saus.ag Companl'l, In1., 275 F.2d
229, 231 (5th Cir. 1960). As the Supreme Court stated
in N. L. R. B. v. Insuralce Agents' International Union,
A FL-C10 Prudential In surance Cormpan.l of Amer-
ic al. 361 U.S. 477, 485 (1960):
Collective bargaining, then, is not simply an oc-
casion for purely formal meetings between man-
agement and labor, while each maintains an atti-
tude of "take it or leave it": it presupposes a
desire to reach ultimate agreement, to enter into
a collective bargaining contract.
This obligation does not compel either party to agree
to a proposal or to make a concession. N.L. R.B. v.
A merican National Insurance Co., 343 U.S. 395
(1952). However. the Board may, and does, examine
the contents of the proposals put forth, for "if the
Board is not to be blinded by empty talk and by the
mere surface motions of collective bargaining, it must
take some cognizance of the reasonableness of the po-
sition taken by an employer in the course of bargain-
ing negotiations." N.L.R.B. v. Reed & Prince Manu-
fiacturing (Companry, 205 F.2d 131, 134 (Ist Cir. 1953),
cert. denied 346 U.S. 887.
244 NLRB No. 13
72
tINIIt[) (ONTRACTORS IN(ORPORAI ED
In this instance Respondents agreed to meet with
the Union only after being ordered to do so by the
Board and the courts. Then Respondents arrived for
the first bargaining session in February with a tape
recorder which, as the Administrative aw Judge
pointed out. "is not conducive to a free and open
bargaining process." This conduct. while not alleged
to have been unlawful, apparently served no other
purpose than to prolong the negotiations. When the
parties subsequently exchanged contract proposals
prior to the second meeting. Respondents demanded.
as noted, an extensive management-rights clause and
a significant wage reduction fr the employees. In
their letter to the Union Respondents attempted to
justify the pay decrease as follows:
This will give the men and the Teamsters an op-
portunit, to stand on the front line in the war
against inflation. It is obvious that inflation is the
product of escalating wages and the Teamsters
have the opportunity now to fight inflation. A 20
percent decrease in the wage rate is a small but
effective means of combating inflation.
Predictably, the parties could agree only on minor
items, such as raincoats and meal periods, during the
second negotiating session.
In our view the foregoing facts plainly show that
Respondents never intended to reach a collective-bar-
gaining agreement with the Union. We cannot accept
the contention that Respondents. in good faith. be-
lieved that the Union could agree to a 20-percent
wage reduction for its members during a period of
widespread inflation, at least in the absence of any
supported claim of economic necessity. Furthermore,
the management-rights clause demanded by Respon-
dents would have required that the Union yield all
bargaining rights on such basic items as the setting
and enforcement of work rules, the scheduling of
hours and the assignment of duties. the discipline and
discharge of employees, subcontracting, and reloca-
tion or shutdown of operations. While it is clear un-
der American National In.surance Co., supra, that the
mere insistence upon a management-rights clause is
not a per se violation of the Act. the Board has consis-
tently held that a violation is made out when. as here.
the employer demands a contractual provision which
would exclude the labor organization from any effec-
tive means of participation in important decisions af-
fecting the terms and conditions of employment of its
members.6 Thus, we conclude that Respondents' ne-
gotiation strategy was to submit an "offer" that they
were certain would be unacceptable to the Union.
6 Gulf States Manujacturing. Inc. 230 NLRB 558 (1977): San Iauhel Elc-
ric Services, Inc.. 225 NLRB 1073 (1976); Gulf Stares Canners. 1tc. 224
NLRB 1566 (1976); Tomio Communicationrs. Ic., 220 NlRB 636 (1975).
For these reasons, we adopt the finding of the Admin-
istrative L1aw Judge that Respondents have violated
Section 8(a)(5) and (I) of the Act by refusing to bar-
gain in good faith with the Union.
We also adopt the Administrative Law Judge's
finding that Respondents further violated Section
(a)(5) of the Act bh reducing their emplosees hourly
wages by 4 percent on November 11. ad Respon-
dents implemented their last offer to the Union after a
valid bargaining impasse had been reached. Respon-
dents' action would have been lawful. Midwcest Cast-
ing (Corora(ion. 194 NLRB 523 (1971). It is well es-
tablished. however. that no such impasse canl exist in
the presence of bad-faith bargaining. such as IOund
herein. 71/li Broadcasting Co., 163 NLRB 475 (1967).
Moreover, even assuming that a lawful impasse did
exist in this case, it is clear that the unilateral change
instituted by Respondents was significantly difl'erent
than their last offer to the Union.7
Finally. we agree with the Administrative Law
Judge's findings that Respondents violated Section
8(a)(1) and (3) of the Act by laying off drivers Guy
Bourdo. Milan Mix. and Percy Williams during 1977
because they engaged in union or other protected ac-
tivities. However, contrary to the Administrative l.aw
Judge, we are unable to find that Respondents further
violated Section 8(a)(4) of the Act in these layoffs.
In finding that Respondents' unlawful conduct was
also in violation of Section 8(a)(4) of the Act. the
Administrative Law Judge relied solely on evidence
that the three discriminatees herein gave testimony in
the prior Board proceeding which was adverse to the
position of Respondents. There the Board found. in
addition to the 8(a)(5) violations, that Respondents
had discriminatoril discharged Bourdo, Mix, and
Williams in the fall of 1974. The evidence in the sub-
sequent backpa proceeding reveals, however. that
Respondents reinstated all three drivers to their for-
mer positions-Bourdo and Mix in January and Wil-
liams in July--prior to the date that the Board's De-
cision in Case 30-CA 2885 (220 NLRB 463). issued
in 1975. For approximately the next 2 ears these
employees were employed by Respondents without
any further incidents involving alleged discrimination
against them. Then. I month after Bourdo had filed
grievances with the Union, Respondents laid off
Bourdo and Williams in late June 1977. Respondents
recalled these drivers on July 29. Thereafter, in Octo-
ber and November 1977. the three discriminatees
filed complaints with state and local authorities alleg-
ing that Respondents had paid them less than the
hourly wage rate required under local guidelines. Re-
'See IHorl:on (,omt,,unicatirons Corporlaon o ('ahirnla. 211 NLRB 792.
fn. 2 (1974). where the Board lfeund that "an increase in wages of almost 15
percent can hardly be viewed as insignificant
73
74 1)I:( ISIONS O()F NAII()IONAI. ABOR Rt:I.AlIONS BOARI)
spondents retaliated by laying off Bourdo, Mix, and
Williams on November 1.
Based on these facts, we conclude that the layoffs
of these drivers, though unlawful, did not violate Sec-
tion 8(a)(4) of the Act. The record does not show that
Respondents laid off these employees in retaliation
for their giving testimony in the prior unfair labor
practice proceeding, but establishes rather that they
were laid off because of their conduct in filing griev-
ances with the Union and complaints with state and
local governmental agencies. Therefore, we shall dis-
miss this portion of the complaint.
AMENI) C()N('LtUSIONS () LAW
Substitute the following for the Administrative
Law Judge's Conclusions of Law 2 and 6:
"2. Teamsters 'General' Local Union No. 200, atf-
filiated with the International Brotherhood of Team-
sters, Chauffeurs. Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act, representing an appropri-
ate unit of employees employed by Respondents. The
appropriate unit is:
All truckdrivers employed by Respondents at
their Menomonee Falls, Wisconsin, location, ex-
cluding all other employees, guards and supervi-
sors as defined by the Act.
"6. By laying off Guy Bourdo and Percy Williams
in the summer of 1977 and by laying off Guy Bourdo,
Percy Williams, and Milan Mix in the fall of' 1977,
Respondents have violated Section 8(a)(l) and (3) of
the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that Respondents, United
Contractors Incorporated, JMCO Trucking Incorpo-
rated, Joint Employers, Menomonee Falls, Wiscon-
sin, their officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
I. Substitute the following for paragraphs I(b) and
(c):
"(b) Withholding the wages of their employees for
filing grievances with state or local authorities.
"(c) Refusing to bargain collectively in good faith
with Teamsters 'General' Local Union No. 200, affili-
ated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of the em-
ployees in the unit described below. concerning rates
of pay. wages, hours of employment, and other terms
and conditions of employment.
"All truckdrivers employed by Respondents at
their Menomonee Falls. Wisconsin, location, ex-
cluding all other employees, guards and supervi-
sors as defined by the Act."
2. Substitute the following for paragraph l(e):
"(e) In any' other manner intertfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act."
3. Substitute the following for paragraph 2(a):
"(a) Offer Guy Bourdo. Milan Mix, and Percy
Williams immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previ-
ously enjoyed, and make them whole fr any loss of
earnings they may have suffered due to the discrimi-
nation practiced against them in the manner set forth
in the section of this Decision entitled 'The Rem-
edy.' "
4. Substitute the attached notice for that of the
Administrative Law Judge.
II Is tURIIILR ORDERED) that the portion of the
complaint alleging that Respondents have discrimi-
nated against employees for giving testimony in a Na-
tional Labor Relations Board proceeding be, and it
hereby is, dismissed.
APPEN DIX
NOllICE TO EMPIOYEES
POSTED BY ORDER OF THE
NAII()ONA LABOR RELATIONS BOARD
An Agency of the United States Government
WE Wll.l NOT lay off our employees or take
any other reprisal against them because they
filed grievances with a union or because they
joined, supported, or engaged in union or other
protected activities.
WE wvil. Nor withhold the paychecks of our
employees because they filed grievances with
state and local authorities or because they en-
gaged in other protected activities.
WE WILL. NOT refuse to bargain collectively in
good faith with Teamsters "General" Local
Union No. 200, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclu-
sive representative of our employees in the bar-
gaining unit described below, concerning rates of
UNITII) CONTRACTORS INCORPORA1 ED
pay, wages, hours of employment. and other
terms and conditions of employment.
WE WIll. NOI change or eliminate our employ-
ees' wages, hours, holidays, vacations, or other
terms and conditions of employment established
by collective bargaining with the above-named
Union without bargaining in good faith with said
Union.
WE WILL. NOt in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
WE \VI.. offer Guy Bourdo. Milan Mix. and
Percy Williams immediate and full reinstatement
to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, with-
out prejudice to their seniority or an\ other
rights or privileges previously enjoyed. and vt
wiLi. make them whole for any loss of earnings
they may have suffered due to the discrimination
practiced against them. with interest.
WE WIl., upon request, bargain collectively in
good faith with the above-named nion as the
exclusive representative of all employees in the
bargaining unit described below with respect to
rates of pay. wages. hours of' employment. and
other terms and conditions of employ ment and.
if an understanding is reached, embody it in a
signed agreement. The bargaining unit is:
All truckdrivers employed by Respondents at
their Menomonee Falls, Wisconsin, location, ex-
cluding all other employees, guards and supervi-
sors as defined by the Act.
WE Witi honor and enforce the provisions of
our contract with the above-named Union which
expired on May 31, 1977, and wE \vII, restore to
our employees all benefits, including wages, paid
holidays, and vacations, which we have failed to
pay pursuant to that agreement.
UNITED CON1RA( ORS IN( ORPORAI ),
JMCO TRUCKING INCORPORAltl)
DECISION
KARL H. BSCHMANN. Administrative Law Judge: This
case arose upon charges filed by Guy Bourdo, an individ-
ual, in Cases 30 CA-4253 and 30 CA-4437 and by Team-
sters "General" Local Union No. 200. affiliated with the
International Brotherhood of Teamsters. Chauffeurs. Ware-
housemen and Helpers of America. Case 30-CA 4264 and
30-CA-4485 and upon a consolidated complaint issued De-
cember 30. 1977. alleging that Respondents violated Sec-
tion 8(a)(1). (3). (4). and (5), of the National Labor Rela-
tions Act.
A hearing on the allegations in the complaint was held
before me on February 1-3, 1978. in Milwaukee. Wiscon-
sin. Respondents iled a brief on April 3. 1978. Counsel for
the General Counsel, although requested to tile a brief in
this case, submitted a two-page letter.
Upon the entire record in this case., including the brief
tiled hb Respondents and from ms observation of' the wit-
nesses. I make tile following tindings of fact and conclu-
silnls of law.
FINIo)(is 01 :\( I
UInited Contractors Incorporated (ihereiin called JUnitedl)
is a W;iscoInsin corporaltion with its prinlcipal office loca;ted
in Menolllonee Falls. Wisconsin. Uniti is engaged primar-
ily in the business of road constructionL in the lilw, auikee
County area. J1(() T1rucking I ncorpora ted. also a \i lcon-
sin corporation located in Menonlonee Falls. is engaged in
prosided trucking ser\ices primarily for lnited at \arlous
sites til he lw;Lukee area. United and J\()O are afflili-
ateLl businesses ith conmtmon offices, o, nership. directors.
operators and supervisors and constitute a silinle integrated
business enterprise. They constitute t single eniploser or
purposes of collective bargaining lInd are n)\\ llid hal\ve
been an employer engaged in comllmerce as defined inl Sec-
tion 2(6) and (7) of the Act.
The Union. Teamllsters "General" Iocal 'nion No. 2t).
affliliated f\ith the International Brotherhood of Teamiisters,
(Ch;lufleurs. \Varehllousellc and lelpers o1 \America. is ad-
mittedIs a labor orgaitiationl within the ieailrig oi Seclonll
2(5) of tile Act.
In substanice, the complaint alleges that Respondent laid
off certain employees and withheld their \wages hbecause o
their protected activities and that the mploer ullilalcralll
reduced wages of its truckdrivers and refused to barai n
collectixel1
Genleral ( oiunsel requested tat alrinistratie notice he
given to the Board's decision in ( til Md (Olrl- lr,/r /lI('O//7o-
ratled, 22) NRI.RB 43 ( 1975). enltd. 539 2d. 713. cert.
denied 42) I .S. 1061 ( 1977). 1 here, the samne Respondent
was found to have ,iolated the Act in several respects and
was ordered to bargain collectively with the Union. Al-
though Respondent had signed a multiemploer bargaining
agreement effective June i. 1974, with Teamsters I.ocal No.
200. it was found to have failed to bargain with that bar-
gaining representative. Moreover. that case also established
that three employees. Milan Mix. Guy Bourdo. and Percs
Williams had been discriminatorils discharged. All three
had testified during that proceeding.
Similar allegations are the subject of this proceeding and
might more appropriately have been the subject of a con-
tempt proceeding in the Seventh Circuit, particularls since
the instant proceeding deals with the same parties as those
involved in the prior decision.
In any case, the record in this case shows that the bar-
gaining agreement (G.C. Exh. 2) between Respondent and
Teamsters Local Union No. 200 terminated on May 31.
1977. Prior thereto Respondent had informed the Union of
its intention to regard the agreement as at an end. For ex-
ample, by letter of February 3. 1977. the Union. referring to
a January 25 letter from the Board requesting the parties to
begin bargaining pursuant to the prior order. proposed a
meeting for February 15. 1977 (G.(. Exh. 31). Respondent
75
DE( ISIONS OF NATIONAL .ABOR RELATIONS BOARI)
replied by letter of February 9, 1977, and agreed to the
meeting. But Respondent stated as follows (G.C. Exh. 32):
"[W]e hereby give you notice that our contract with Team-
sters Local No. 200 will terminate on its expiration date.
May 31, 1977. We are willing to negotiate a new contract
with you but this should not be interpreted as merely an
attempt to change or modify our contract since it is our
intent to terminate that contract and all letters of' assent
related thereto."
The parties apparently did not meet on February 15, but
did meet on February 22, 1977. One day before that meet-
ing, however, Respondent sent another letter to the Union
informing it that the Company did not intend merely to
change or modify the existing contract but that it was pre-
pared to negotiate for a new contract on an individual basis
(G.C. Exh. 36). The meeting on the 22d was unsuccessful
because Respondent insisted on tape-recording the bargain-
ing session, and the Union refused.
The next negotiation meeting was held on May 24. 1977.
Both sides had submitted their proposals. The Union's pro-
posal (G.C. Exh. 34) was primarily based on the expired
contract. whereas the Company's proposal. in a letter dated
May 18, 1977. (G.C. Exh. 33), contained several important
provisions, including substantial reductions in wages. After
less than an hour of discussion, the meeting ended in what
both parties described as an impasse. because the parties
were unable to agree to anything except two or three minor
items. Subsequently, by letter of June 24, 1977, Respondent
informed its truckdrivers that the Company planned to be-
come a "merit shop," that a fringe benefit plan was in the
planning stage and that their wages would conform to the
Davis-Bacon Act requirements (G.C. Exh. 4 6).
In the meantime, on May 17 and 27, 1977, Respondent's,
employee Guy Bourdo filed grievances with the Union
complaining that the Employer had failed to pay him for
his work and that he had not been assigned work in accord-
ance with his seniority. On June 26, 1977. the Company laid
off two of its truckdrivers, namely, Guy Bourdo and Percy
Williams. They were recalled on July 29, 1977.
The record shows that during the time of' the layoffs of
Bourdo and Williams in July 1977, Respondent's trucks
were driven by Milan Mix, the only remaining member of
the Teamsters unit: Frank Watson, the concrete foreman:
and, on two occasions, Richard Welda, an operator with
the Company. In terms of seniority, the record indicates
that of the three truckdrivers, Mix, who began working for
Respondent in 1968, was senior to Bourdo, who started in
1970, and Williams, who started in 1974. In terms of com-
pany seniority, Frank Watson, who had worked for Re-
spondent since 1965, was senior to Bourdo and Williams:
however, Weldar, who commenced working in 1972. had
less seniority than Bourdo.
In October and November 1977 Guy Bourdo and the two
other truckdrivers, Percy Williams and Milan Mix, filed
complaints with state and local authorities because Respon-
dent had paid them an hourly rate less than the minimum
scale required under the local guidelines. As a consequence
of their complaints to state and local authorities that the
Employer had failed to pay the required minimum wage
scales, Respondent repeatedly withheld the pay due the
three employees. For example, Mix, Williams, and Bourdo
each filed complaints in October and November 1977 with
the State of Wisconsin. Its Department of Public Works
informed the Employer by letter of December 1, 1977. that
such complaints had been filed and requested an explana-
tion from the Employer (Resp. Exh. 8). Similar claims were
considered by the city of Milwaukee (Resp. Exh. 10) and
the department of transportation of the State of Wisconsin
(Resp. Exh. 9).
As a result of these employees' claims. the local and state
departments withheld the scheduled installment checks due
Respondent until the matter had been settled (Resp. Exh.
8). Respondent justified its withholding of the wages of the
three employees on the basis that their complaints caused
the local and state authorities to withhold payments of sub-
stantial sums of money.
On November 11. 1977, Respondent reduced the hourly
wages of its three truckdrivers from $7.80 an hour to $7.49
retroactively to August I, 1977. And on the same day, No-
vember 11, 1977. the three drivers, Guy Bourdo, Percy Wil-
liams, and Milan Mix, were laid off.
During the layoffs in November and I)ecember 1977,
when all three drivers were affected. trucks were driven by
Gorden Duquaine, a mechanic who had worked at Respon-
dent's plant since 1967: La Verne Schlei. the grading fore-
man, whose company seniority dates back to 1965 and who
was found to be a supervisor within the meaning of the Act
in the prior case: and Frank Watson.
Only Milan Mix was ultimately recailled in January 1978.
Analysis
General ('ounsel's position as stated orally at the conIclu-
sion of the hearing is basically that Respondent's hostility
against he Union as well as the truckdrivers' protected ac-
tivities have prompted the layoffs and the withholding of
the employees' paychecks and that Respondent has unilat-
erally changed the working conditions of its truckdriers
following the unsuccessful bargaining for a renewal of the
contract.
Respondent. in contrast. asserts that the layoffs were oc-
casioned by legitimate business reasons, that the withhold-
ing of the employees' pay was necessitated by failure of the
local and state authorities to meet their installment ohliga-
tions, and that the Employer was justified in changing the
working conditions. since the bargaining agreement had ex-
pired, and the parties had reached an impasse in their nego-
tiations.
It is well established that in my analysis of these compet-
ing contentions I am authorized to rely upon the previous
unfair labor practice decision, involving the same Employer
and the identical parties, at least to the extent of' finding
Respondent's union animus, a bargaining obligation pursu-
ant to the bargaining order, and the appropriateness of the
bargaining unit consisting of all truckdrivers and exclusive
of all other employees.
Turning first to Respondent's unilateral changes of' work-
ing conditions, the record is clear that the bargaining agree-
ment ended on May 31, 1977, that the parties met twice to
negotiate a new agreement. that an "impasse" was reached,
and that the Employer substantially changed the working
conditions for its truckdrivers, including a reduction in
76
UNITEDI ()ONTRACORS INCORPOR I)
wages from a $7.80 to a $7.49 an hour foir the purpose of
"fighting inflation." Although the letters of June 24. 1977,
addressed to the truckdrivers ostensibly recognized the
Union as the bargaining agent for the three emploees. it
informed the employees of the changed working conditions
initiated by Respondent. It stated (11) that the wages would
be paid in accordance with the Davis-Bacon Act and the
prevailing wage rates of the various project contracts. (2)
that the ('ompany was initiating a fringe benefit plan. and
(3) that Respondent would become a "merit shop."
The law is clear: a duty to bargain does not require a
parts to engage in ruitless and endless discussions. Where
irreconcilable difflerences exist in the respective positions
alter good-faith negotiations the parties mnai he at an inm-
passe. At such a point the duty to bargain is not terminated.
but only suspended. Nevertheless. when a lawful impasse
has been reached and the parties are at a stalemate, the
employer may make unilateral changes in working condi-
tions. However, a legal impasse does not exist when the
impasse is the result of a party's bad faith or unfair labor
practices.
Here, Respondent made a proposal which was predict-
ably unacceptable to the Union and which contained such
substantially different provisions from those of the expired
contract that such a proposal could not he taken seriousl\
by a bargaining representative. First, the proposal con-
tained a management's rights provision giving the (om-
pany absolute control over the employees: second. it pro-
vided for an open shop where a teamster employee had the
option as to whether he wanted to belong to the Union or
not; third, Respondent demanded a 20-percent pay cut:
fourth, while the proposed contract provided for quarterly
discussions, such discussions would exclude subcontracting
issues. In short, Respondent's proposal on its face was un-
worthy of serious negoatiation.
Significantly, Respondent in its earlier letters to the
Union expressed its intention to negotiate a new contract
and not one which would be based upon the expired con-
tract or one which would contain mere changes or modifi-
cations in the expired contract. Obviously. then, Respon-
dent thereby clearly expressed its intention to discontinue
its prior contractual relationship. Moreover. Respondent
arrived for its first bargaining session with a tape recorder,
which obviously is not conducive to a free and open bar-
gaining process. In its second meeting Respondent agreed
to such minor items as raincoats and meal periods. To be
sure, the record shows that on one or two occasions Re-
spondent requested additional bargaining meetings. How-
ever, given Respondent's premise for negotiations. any fur-
ther meetings would have amounted to surface bargaining.
Considering that Respondent had a bargaining obliga-
tion not only because of the contractual relationship but
also by order of the Board and the courts, Respondent has
without doubt defaulted on its obligation. As summarized
above, Respondent has failed to bargain in good faith.
Moreover, Respondent has also engaged in unlawful la-
bor practices which rendered its unilateral changes im-
proper. Only recently, the Board has ruled that an employ-
er's discrimination against an employee for the pursuit of
his right for unemployment compensation benefits under
state law constituted a violation of Section 8(a)(1) of the
Act. Sel (cle & Marine DvsIrihuor Co., Inc.. 237 N.RB
75 ( 1978).
In the case at hand, Respondent repeatedl, v ithheld the
earned w;ages due its Teamsters on the hbasis that the had
filed complaints with state and local authorities about the
Emploxer's failure to pay the minimum paN fixed by local
and state law. To he sure. Respondent was economicall
adversely affected in that substantial installment pay menis
due the IEmployer under the contracts ith the state and
mullicipal authorities were suspended pending resolution of
the employees' complaints. 1oev es er. this as tile direct
result of' Respondent's failure to pa? even the minimun m
wages specified bh the local governments alnd the failure to
pay the hourly rates of the expired contract. Accordingl. it
is clear that the complaints of Bourdo. Williams. and Mix
to state and local governments constituted protected con-
certed activity and that Respondent's retaliation hb with-
holding the pa, of the three indi iduals amounted to an
interference with their protected activities, in iolation of
Section (;a) I I) of the Act.
With respect to the lasofls in July and November 1977, it
was the testimony of James Meas. Respondent's president.
that a general lack of work prompted the laotbf of to
team;lsters in .lul 1977 and all three truckdrivers in Novem-
her and )ecemher 1977. Ice further testified that the la; oflS
were made in accordance with compan senliorit. Yet the
record shows that trucks were driven during the times of the
lay offs and hat other emplo es of Respondent were as-
signed to the task. With regard to seniority, the record
shows that employee Welda. with less company seniority
than Bourdo. drove trucks at least on several occasions in
July 1977. The expired contract. in article 3. under "Work
Assignments." provides. inter lia: "The Emplo er agrees
to respect thejurisdictional rules of the Union and shall not
direct or require its employees or persons other than the
employees in the bargaining units here involved. to perform
work hich is recognized as the work of the employees in
said units." Clearls. then. Respondent. contrary to that pro-
vision. assigned other employees to the truck driving work
without bargaining with the Union. In addition, Respon-
dent permitted a less senior employee to drive the trucks, a
practice which is contrary to what Mews had described ias
company policy.
Also the timing of the layoffs is of significance. In late
May Bourdo filed grievances with the Union. and in late
June the Company laid off Bourdo and Williams. Similarly,
in November, when Bourdo, Williams, and Mix were laid
off, Bourdo had already filed a complaint with the Depart-
ment of Transportation of the State of Wisconsin concern-
ing the failure of Respondent to pay the wages established
by the State.
Finally., the record reflects Respondent's efforts to justift
the layoffs upon considerations other than Mews' official
reasons. For example, Respondent offered evidence show-
ing Williams' use of alcohol during and after working hours
and evidence suggesting that Bourdo left another company
under suspicious circumstances. Lack of work, however.
was the sole justification offered by Respondent's president.
James Mews. Contradictory evidence of this type is not per-
suasive: to the contrary, considering the timing of the lay-
77
DECISIONS OF NATIONAL. LABOR RELATIONS BOARI)
offs and the fact that the trucks were driven by other em-
ployees, including on occasion a junior employee. as well as
Respondent's inconsistent position on the underlying rea-
sons, it is clear that the layoffi were improperly motivated.
Considering also the totality of the evidence in this case as
well as the antiunion animus established in the prior deci-
sion, Respondent's actions were predicated upon its hostil-
ity toward the Union and the protected activities of the
employees when they filed complaints with the Union and
the various state and local authorities concerning their pay
scales. Accordingly. Respondent violated Section 8(a)(I)
and (3) of the Act.
Significantly, the three employees, Bourdo, Mix, and
Williams, gave testimony in the prior proceeding. Their tes-
timony was in substantial part adverse to the position of the
Company. Without doubt, Respondent's discriminatory
treatment of the three employees was also prompted by
their prior testimony, which resulted, in part, in an Order
against Respondent and the requirement that Respondent
reinstate them and make them whole for any loss of earn-
ings which they had suffered by reason of the prior dis-
criminatory acts of Respondent. It is therefore clear that
Respondent's discrimination against them because of their
prior testimony amounts to a violation of' Section 8(a)(4) of
the Act.
CONI.USIONS 0() LAaW
I. United Contractors Incorporated and JMCO Truck-
ing Incorporated are a single employer engaged in com-
merce as defined in Section 2(2), (6). and (7) of the Act.
2. Teamsters "General" Local Union No. 200. affiliated
with the International Brotherhood of Teamsters. Chauf-
feurs, Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By failing to bargain in good faith with the Union.
Respondent violated Section 8(a)(1) and (5) of the Act.
4. By unilaterally changing the working conditions of its
truckdrivers without bargaining with the Union and absent
a lawful impasse, Respondent violated Section 8(a)(5) and
(I) of the Act.
5. By withholding the paychecks of the truckdrivers be-
cause they had filed complaints with state and local au-
thorities concerning their wages, Respondent violated Sec-
tion 8(a)(l) of the Act.
6. By laying off Guy Bourdo and Percy Williams in the
summer of 1977 and by laying off Guy Bourdo, Percy Wil-
liams, and Milan Mix in the fall of 1977, Respondent vio-
lated Section 8(a)(1), (3), and (4) of the Act.
7. The aforesaid practices are unfair labor practices af-
fecting commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
In order to remedy the unfair labor practices found
herein, my recommended Order will require Respondent to
cease and desist from further violations, to post an appro-
priate notice to employees, and to offer unconditional rein-
statement to Guy Bourdo, Percy Williams, and Milan Mix
and make them whole for all wages lost as a result of' the
unlawful discrimination, such backpay to be computed on a
quarterly basis, plus interest thereon to be computed as pre-
scribed in F. W. Woolworth Company. 90 NLRB 289 (1950),
and Florida Stlel Corporation, 231 NLRB 651 (1977).' I will
also recommend that Respondent be ordered to bargain in
good faith with the Union as the exclusive collective-bar-
gaining agent of the employees in the unit.
Pursuant to Section IO(c) of the Act. I hereby issue the
following recommended:
ORDER2
Respondent, United C'ontractors Incorporated and
JMCO Trucking Incorporated. Menomonee Falls. Wiscon-
sin, the officers, agents. successors, and assigns of both these
corporations, shall:
I. Cease and desist from:
(a) Discouraging membership in, or activities on behalf
of; Teamsters "General" Local Union No. 200. affiliated
with the International Brotherhood of' Teamsters, Chauf-
feurs. Warehousemen and Helpers of America, or any other
labor organization, by laying off its truckdrivers or by dis-
criminating in regard to the hire or tenure Qf employment.
or discriminating in any other manner in regard to any term
or condition of employment, of any of Respondent's em-
ployees in order to discourage union membership or union
or other concerted activities.
(b) Withholding the wages of its employees for filing
grievances with state or local authorities or in any other
manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of
the Act.
(c) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with the above-named Union as the exclusive
bargaining representative of its truckdriver employees in
the established unit.
(d) Unilaterally changing or canceling employees' wages,
hours, holidays, vacations, or other terms and conditions of'
employment without bargaining in good faith over said
matters with their exclusive collective-bargaining represent-
ative.
(e) Laying off or otherwise discriminating against its em-
ployees because they gave testimony under the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act.
(a) Offer to Milan Mix, Guy Bourdo, and Percy Wil-
liams immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make each
of them whole for any loss of earnings they may have suf-
fered as the result of the discriminatory layoffs.
'See, generally, Iis Plumbing & Heating Co., 138 NLRB 716 (1962).
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
and conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
78
I Nl I)ED (ON IRA( O()RS IN(ORP)RA E I)
(h) Hlonor and enforce the lerms of the collective-har-
gaining agreement with the above-namled inimon which ex-
pired MaN 31. 177. until a ncw agreement is reached.
(c) Bargain collectively, upon request. with the abo c-
nalmed U nion with respect to the rales of pa . ages, hours.
and other terms and conditions of emplo ylenlt oft' the em-
ploNees in the appropriate unit, and. if an unlderstalndini is
reached. emhbody such understanding in a signed agreec-
ment.
(d) Restore to all employees in the collective-bargaining
unit all unpaid wages and other benefits established under
the aforesaid collective-bargaining agreement.
(e) Preserve and, upon request, make available. fIr ex-
amination and copying, all pa\roll records. social securit
payment records. timecards. personnel records and reports.
and all other records necessar', to analsze the amoulnt ot
hackpa due under the terms of this Order.
(f) Post at its Menomonee Falls. Wisconsin, place of
business copies of the attached notice marked "Appendi-x.
C(opies of said notice, on trmlas provided hb the Regional
L)irector ftr Region 3(). after being dul signed bh Respon-
dent. shall he posted hN It imediatecl upon receipt
thereof: alnd be maintained b it for 6() consecut'l'e deas
thereafter. ill c01nspicuous, plIaces. inclulding all pl;lces \ here
notices to emploNsees are customarilN posted. Reasonable
steps shall be taken bh Respondent to nsure thall sltidl no-
tices are notl ltered, defaced, or cotred bh an' otlher atl;le-
riai.
(g) Notit the Regional l)irector ft(r Regi n 30. in ,rl nt-
ing. within 20 days of the date of this Order. wkhat steps
Respondent has taken to complx herewith
In the eent his Order is enforced h ; Jdgnernl n ai t1 iited Sta.es
('our o Appeal. he w ords in the notlice reldilg '"Po ted h Order ot the
Nllion.l l Iabor Rllilon Berd" h,1I rld i"POledl Pir'UA It I* dllllJugen
of the I nit1ed htlte ( mllrl t N,\ppeal, }(lltlrll g alll ()[i dl .rl tlct \atltwrla
L.ahor RelLtirns Bord"
79