W. G. Best Homes Corp.

National Labor Relations Board - Board Decisions

Dec 22, 1980

253 N.L.R.B. 912 (N.L.R.B. 1980)

DECISIONS ()OF NATIONAL LABOR REL.ATIONS BO()ARD
W. G. Best Homes Corporation and International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers, Local Union No. 26, af-
filiated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
National Homes Corporation and General Teamsters
Local Union No. 528, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and
Dallas General Drivers, Warehousemen and
Helpers, Local 745, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and General
Teamsters, Warehousemen Local Union No.
543, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 14-CA-12589, 14-
CA-13111 (formerly 10-CA-14735), 14-CA-
13112 (formerly 16--CA-8481), 14-CA--13320)
(formerly 16-CA-8865), 14-CA-13113 (for-
merly 25-CA-10964), and 14-CA-13336
December 22, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBHIRS
JENKINS ANI) PENEI I.O
On June 11, 1980, Administrative Law Judge
Abraham Frank issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, Local
Union No. 26 filed exceptions, Local Union No.
543 filed exceptions and a supporting brief, Local
Union No. 745 filed exceptions and a supporting
brief, and Respondent filed an answering brief and
cross-exceptions.
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-mernber panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
i In view of our dismissal of thle complairit. wc nced not decide wheth-
er the Administrative Law Judge erred in refusing to permit Respond-
ent's countsel o closs-examnine certain witnesses, and i refusing to admit
into evidence certain affidavits of witnesses who testitied at the hearing
2 rhe Respondenlt has excepted to certain crcdibility findings miade by
the Adminlstrative Law Judge. It is the Board's established polic? tlt to
overrule an administrative law judge's resolutions witi resp t to clcdl-
bility unless the clear preponderance of all of the relevant e idence con-
vinces us that the resolutionis are icrrect. Standard Dry WalI Pnducis.
Inc., 91 NL.RB 544 (195(). enfd 18 F.2d 362 tld Cir 19511 We have
carefully examined he record and find no, basis for reversing his findings
ORDER
Pursuant to Section 10(c) of the National Laor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
ABRAHAM FRANK, Administrative Law Judge: The
original and amended charges in these consolidated cases
were filed on various dates fromn May 14, 1979, to Janu-
ary 10, 1980. The order consolidating cases and a final
complaint and amended complaint issued on November
26, 1979. A further amendment to the complaint was
issued by the Regional Director for Region 14 on Janu-
ary 11, 1980. The hearing was held on January 14-17,
1980, in St. Louis, Missouri. All briefs filed have been
considered.
At issue in this case are questions whether Respond-
ents violated Section 8(a)(5) and (I) of the Act by sub-
contracting unit work without affording the employees'
bargailing representatives prior notice aid an opportuni-
ty to bargain, with respect to such subcontracting, and
whether Respondents violated Section 8(a)(3) and (I) of
the Act by refusing to reinstate striking employees on
their unconditional application to return to work.
FINI)INC;S OF F\C I ANI) CONCI IJSIONS OI LA%-
A. Preliminary Pindings and Conclusions.
Respondents, W. G. Best Homes Corporation and Na-
tional Homes Corporation, are incorporated to do husi-
ness, respectively, in the States of Illinois and Indiana.
They are engaged in the business of manufacturing, sell-
ing, and distributing prefabricated buildings and related
products. Best is a wholly owned subsidiary of National.
Both companies have common officers, ownership, direc-
tors, management. and supervision. They formulate and
administer a common labor relations policy. I conclude
that the two corporations constitute a single integrated
business enterprise and a single employer within the
meaning of Section 2(2) of the Act.
Respondents admit and I find that they are engaged in
commerce within the mcanlitig of Section 2(2), (6), and
(7) of the Act.
The Charging Parties, hereinafter Local 26, Local 528,
Local 745. Local 543, herein collectively called the
Unions, are labor organizations within the meaning of
Section 2(5) of the Act.
B. Background
The Respondent builds and delivers by truck prefabri-
cated housing sections and housing components to its
customers throughout the United States. Four of Re-
spondent's five manufacturing plants are involved in this
proceeding: Lafayette. Indiana; Effingham, Illinois;
Tyler, Texas; Thomson, Georgia. A fifth plant is located
at liorseheads. New York. At I.afayette, ocal 543,
historically, has represented the truckdrivers, including
253 NLRB No. 123
912
W. G. IES1 HOMES CORPORA lI()N
maintenance employees and yard employees or spotters.
The unit varies from about 85 employees during the peak
summer season to 30 in the off season. At Effingham,
Local 26, historically, has represented a unit of over-the-
road drivers, comprising about 15 employees during the
peak season. At Tyler, Local 745, historically, has repre-
sented a unit of over-the-road drivers, maintenance em-
ployees, and yard employees or hustlers, comprising
from 40 to 45 employees. At Thomson, Local 528.
historically, has represented a unit of over-the-road driv-
ers, maintenance employees, and yard personnel, com-
prising about 25 employees.
The above units, excluding all supervisors as defined in
the Act, constitute appropriate bargaining units within
the meaning of Section 9 of the Act.
At Horseheads, Teamsters ocal No. 529 represents a
Board-certified historic-bargaining unit.
For a number of years, Respondent bargained with the
above Local Unions as part of a multiemployer unit
under the National Master Freight Agreement and local
supplements. The last such agreement terminated on
March 31, 1979. Counsel for the General Counsel stipu-
lated that prior to that time Respondent took all neces-
sary action to withdraw from the association and was no
longer bound to bargain through the association.
By letter dated October 19, 1978, Frank E. Fitzsim-
mons, general president of the Teamsters, acknowledged
Respondent's communication relating to the National
Master Freight Agreement and its various supplements,
stating further that the communication would be "re-
ferred to the appropriate committees upon their appoint-
ment, at which time you will receive a specific answer."
However, Fitzsimmons made it clear that the Union was
not waiving its position that Respondent was obligated
to continue to be a part of the National's multiemployer
bargaining unit.
Initial contacts with Local 26: Robert DePratt, business
representative of Local 26, testified that prior to Novem-
ber 17, 1978, possibly on October 9, 1978, . L. Buch-
holz, director of transportation for National Homes,
came to DePratt's office and told DePratt that Respond-
ent wanted to get out of the National Master Freight
Agreement, that the Company was having hard times,
and the National Agreement was not tailored to the
Company's operations.
Initial contacts with Local 543: Buchholz testified that
he and Larry C. Geyer, president of National Homes,
met with officials of Local 543 as early as June 1978, and
that Geyer made a statement that there was a possibility
the Company would subcontract out the work. Law-
rence Parrott, president of Local 543, who was present
at the June meeting, denied that any mention was made
of subcontracting. However, he testified that Geyer told
the union officials that National Homes was having a lot
of financial problems. In other communications witn the
Unions, set forth below, Geyer had coupled such a state-
ment with the comment that the Company might be
forced to consider other methods of transportation. Not
until May 1979, did any official of Respondent use the
specific term "subcontracting." I think it is unlikely that
Geyer would use the term "subcontracting" as early as
June 1978, without mentioning it again until almost a
year later. On this narrow point I credit Parrott. Howev-
er. it is most likely-and I credit uchholz to this
extent-that Geyer did mention an alternative means of
transportation in the event the Union was unwilling to
adjust its economic terms to Respondent's adverse finan-
cial condition.
Initial contacts with Local 745: In the latter part of Sep-
tember or the early part of October 1978, Buchholz and
Leonard Davis, the transportation manager at Tyler, met
with the Tyler employees represented by Local 745 at
Tyler. Charles Rogers, president of ocal 745, was pres-
ent. Buchholz stressed the financial problems of the
Company and stated that the Company needed some sort
of wage freeze; the Company did not want to take an-
thing away from the employees, but wanted to slow
down the costs as much as possible.
Rogers was informed by Respondent as early as Octo-
ber 1978 that Respondent wanted to negotiate contracts
separate from the National Master Freight Agreement.
Geyer and several other company officials came to
Rogers' office about October 1, 1978, and Rogers spoke
to Geyer at least once by telephone during this period.
Subsequent to the meeting with the employees, Buchholz
attempted to arrange a bargaining meeting with Rogers
to settle the contract early. Rogers informed Buchholz
that committees would be set up to meet with different
employers who wished to get out from under the Na-
tional Master Freight Agreement and at the appropriate
time they would discuss it. Rogers referred Buchholz to
Fitzsimmons' letter of October 19, 1978, supra.
Initial contacts vwith Local 528: At the request of the
Company, James E. Moseley, assistant business agent for
Local 528, called a meeting of the employees represented
by Local 528 on July 22, 1978. Present at the meeting
were Buchholz. Al Adams, the general manager, and
Hub Davis, president of Local 528. Buchholz told the
employees that the Company was financially in bad
shape, and needed relief. Buchholz made it clear that the
Company, for economic reasons, did not want to be a
part of the Master Freight Agreement. Moseley replied,
"If you have economic reasons, if you can show it to us
beyond a shadow of a doubt, we're more than willing to
work with you. But we're not going to give up some-
thing we've had for 18 years through blood, sweat and
tears to get."
C. Chronology of Events From November 14, 1978. to
May 6. 1979
1. Bargaining with Local 26
On November 17, 1978, Buchholz and DePratt met
again. Buchh(!z reiterated Respondent's position that Re-
spondent wan; d to negotiate a contract separate from
the National Master Freight Agreement and gave De-
Pratt a written contract proposal with work rules, but
without wage rates. DePratt thumbed through the first
portion of the proposal and the parties discussed it brief-
ly. DePratt said that his members wanted the same settle-
ment as that produced in the forthcoming National
Master Freight negotiations. DePratt also said that it was
a little early to start negotiations, that DePratt wanted to
913
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know what Respondent was going to do at its Lafayette
operation before engaging in serious bargaining. Buch-
holz said that he understood the Union's position. Be-
tween November 17, 1978, and April 20, 1979, Buchholz
called DePratt two or three times and asked DePratt
what his position was with respect to Respondent's pro-
posal. During several of these conversations DePratt
again told Buchholz that DePratt wanted the same settle-
ment as that arrived at through the National Master
Freight negotiations. DePratt asked Buchholz what the
Company had done at Lafayette. Buchholz said that he
had had several discussions with Local 543 officials and
felt that they were going to be able to work out a settle-
ment. In one of these conversations, DePratt said that
perhaps his members would be willing to give Respond-
ent some relief on wages.
On December 21, 1978, Local 26 sent a notice to W.
G. Best Homes Corporation of a desire to change or
revise the then current National Master Freight Agree-
ment. Respondent was advised to notify the Local if Re-
spondent would not be represented by any association
and desired individual notice of the time and place of
future negotiating meetings. Enclosed was a copy of per-
tinent provisions of the Constitution of the International
Brotherhood of Teamsters, relating to the rights, restric-
tions and obligations of affiliated Local Unions with re-
spect to area, multiarea, national, companywide, or in-
dustrywide contracts.
Local 26 gave no written proposals to Respondent
from October 6, 1978, to May 6, 1979.
2. Bargaining with Local 543
On February 16, 1979, Parrott, accompanied by Busi-
ness Agent Ben Marsh and Steward Huffa, met with
Geyer and Buchholz at the Local's hall in Lafayette, In-
diana. Local 543 submitted a single page contract pro-
posal, calling for an increase in the current hourly rate of
$1 per hour each April 1, an increase in the mileage
rates, and increases in health, welfare, and pension con-
tributions each April 1. During the course of the meeting
Geyer told Parrott that Respondent could not stay in the
transportation business at current rates let alone new na-
tional rates; that Respondent was negotiating with out-
side carriers for its Dallas (Tyler) and Atlanta (Thom-
son) facilities, but had not talked to outside carriers for
Horseheads, Effingham, and Lafayette. However, Geyer
pointed out that Respondent would start looking for out-
side carriers at the latter three locations if the parties
could not negotiate a local agreement tailored to Re-
spondent's operations. '
Officials of Locals 745 and 528 were not told by Par-
rott that Respondent had already contacted outside carri-
ers for its Tyler and Thomson facilities.
On February 26, 1979, Respondent delivered to Local
543 a proposed agreement, omitting any mention of the
National Master Freight Agreement and providing for a
differential in pay between employees employed at the
time of execution of the agreement and those hired there-
I 'arroil testified that he did not put a lot of weight on (ieyer', com-
ments because the threat to start looking for outside carriers is normally
made by employers at he first negotiating meeting and ery seldorn hap-
pens
after. On February 28, 1979, Respondent delivered to
Local 543 proposed work rules. On March 20, 1979, Re-
spondent delivered to Local 543 proposed wage rates,
basically $8.50 per hour for current drivers as of April 1,
1979,2 and $8.90 per hour as of April 1, 1980; for drivers
subsequently hired $5.75 per hour effective April 1, 1979,
and $6 per hour as of April 1, 1980.
On March 9, 1979, Local 543 submitted to Respondent
certain negotiating proposals, incorporating provisions in
the Central States Over-the-Road Supplement and Na-
tional Master Freight Agreement.
Following his first meeting with Respondent's officials
on February 16, 1979, Parrott met with Geyer, Buch-
holz, and Michael J. Klump, counsel for National
Homes, on April 3, 1979. At that meeting Parrott ex-
pressed outrage at Respondent's proposals delivered to
the Union on February 26 and 28 and March 20, 1979.
Geyer agreed that the proposals were not very good and
agreed to issue more responsible proposals in the near
future. On April 6, 1979, Respondent did, in fact, deliver
revised language proposals to Local 543, which Parrott
found reasonable.3
The parties met again on April 20, 1979, at Indianapo-
lis, Indiana. Present at that meeting were Klump and
Buchholz for Respondent; Parrott, Marsh, and four or
five members of Local 543's negotiating committee;
Charles Haddock and Rogers of Local 745; Moseley of
Local 528; Robert DePratt, business agent of Local 26;
and Edward J. Fillenwarth, Jr., attorney for Local 543.
Parrott stated that everyone on his side of the table were
members of his negotiating committee. Parrott also stated
that all four Locals wanted to be present at Local 543's
meeting because they felt they had the same problems.
Parrott stated that they had received a very satisfactory
proposal from Respondent, with respect to language and
wanted to discuss economics. Parrott said that he had to
have increases in insurance and pension contributions,
another holiday, more sick and funeral leave, and a few
additional economic items. Klump reiterated Respond-
ent's position of economic hardship and proposed a com-
plete freeze on all economic items for at least I year.
Parrott argued that he could not live with a freeze on
insurance and pension contributions. Klump stated that
Respondent might make some concessions on minor eco-
nomic items, but if they did it would necessitate a wage
freeze longer than 12 months. Parrott stated that he had
researched Respondent's financial situation and did not
believe that Respondent was in dire economic difficul-
ties, pointing to the fact that under Respondent's incen-
tive compensation plan key management personnel had
drawn $2 million out of the Company from 1974-78.
Klump then made a phone call and returned to inform
the group that his proposal of a complete freeze on in-
surance, pension, and wages was a firm and final offer.
Klump also stated at this meeting that the Company's
objectives were different from the Union's and that the
Employer had conducted several discussions with differ-
ent carriers to handle their transportation needs.
2 By omparison, the rate of pay under the contract expiring on March
31, 1979, was $8 70 for drivers
:' he proposal included an Article against subcontracting
914
W! G BEST I()MES CORPORIA ION
During the course of the meeting or at its close, Had-
dock stated to Klump either that his members were in-
sisting on a National Master Freight Agreement Contract
or "We want no less than a settlement of the National
Master Freight Agreement." Haddock stated further that
they were willing to continue negotiations In good faith
to try and reach an agreement. At the close of the meet-
ing, a spokesman for one of the Locals said that his
members desired nothing less than the National Agree-
ment or words to that effect. Moseley said, "That goes
for Local 528 too." All of the Locals took the position
that their desire was for the terms and conditions of the
National Master Freight Agreement.
3. Bargaining with Local 745
On March 22, 1979, Respondent submitted a written
contract proposal, including work rules, to Charles
Rogers, president and business agent for Local 745.
Rogers discussed the proposal with Geyer at that time.
A few days later on March 24, 1979, Geyer, Buchholz,
and Davis attended a union meeting at Dallas, Texas,
and Geyer again spoke of the financial problems of the
Company. Later, at a special union meeting on the same
day, the Company's written proposal was presented to
the membership of Local 745 and rejected. During this
meeting Rogers informed the members of Local 745 that
he had received a call from Transpersonnel, a carrier
performing the same type of lease driver operations as
Ryder, to the effect that Respondent had approached
Transpersonnel about the latter taking over Respondent's
transportation department on a nonunion basis.
On April 12, 1979, Respondent submitted a second
written proposal to Local 745, including hourly rates for
two categories of drivers; the first category to receive
$9.32 per hour, effective April 1, 1979; $9.97 per hour,
effective April 1, 1980: and $10.67 per hour, effective
April 1, 1981; the second category to receive $h per
hour, effective April 1, 1979; $6.50 per hour. effective
April I, 1980; and $7 per hour, effective April 1, 1981.
The proposal was rejected by the membership of
Local 745 at a meeting on April 21, 1979.
4. Bargaining with Local 528
On January 17, 1979, Buchholz tendered a contract
proposal to James E. Moseley, assistant business agent
for Local 528. Moseley responded that he had not been
released to negotiate a local agreement, and refused to
accept the proposal.4
Shortly before February 8, 1979, Moseley was told by
his president, Hub Davis, to "go out there and reach
some type of agreement with National Homes." Howev-
er, Davis did not specifically tell Moseley that he had
Art XVI. sec 4 of the Tea;lm tcr clnstitution, a cop) of whllh la,,
submitted to \ (i Best Times Corporltion by) lownds, president of
Local 26. in I)ecember 21 17R, mlpose on affilied I.ocal lnion thie
obligation to participate in multiarca negtllations and resulting contracl
where a majorit of Ihce local Lniton, hae appro ed such bargaining
and contracts I cal Unions mas not wiLlhtlra from ulch hargalillig
unith w ilhout alppro al of the appropriate trial din lton, coniference, r
cormmittee Flial apprlovpal residels Il the general execullse hb ard if Iht
International [ltiton. which illso exercises fna aiilth ortly with respect to
appeals baed n alleged incqulille,
authority to negotiate a local agreement. Neither at that
time nor at any time prior to May 14, 1979. was Moseley
released by the Teamsters International of the Southern
Conference of Teamsters to negotiate a local agreement
with National Homes.
In response to Davis' suggestion Moseley notified
Buchholz on February 8, 1979, that Local 528 was re-
questing a meeting to negotiate the addendums to the
National Master Freight Agreement. Moseley submitted
a proposal in addendum form,. which required Respond-
ent to accept for its drivers at the Thomison facility all of
the benefits, including fringe benefits. hours, wages, and
working conditions negotiated in the forthcoming April
1, 1979, National Master Freight Agreement, Southeast-
ern Area.
On February 14, 1979, Buchholz replied, reminding
Moseley that Respondent would not longer be signatory
to the Master Freight Agreement as of April 1, 1979.
Buchholz stated further that in view of the Company's
inability to negotiate a Local agreement Respondent had
been forced "to look into other means of transporting
our product effective April 1, 1979." However, Buch-
holz concluded that Respondent would be happy to ne-
gotiate a Local agreement with Local 528.
By letter of February 19. 1979, Moseley acknowledged
receipt of Buchholz' letter of Februar, 14. Moseley reaf-
firmed Local 528's bargaining position as set forth in the
letter of February 8 and suggested that Respondent take
note of Fitzsimmons' letter of October 19, 1978, supra.
On April 1, 1979, Moseley was told by the Thomson ter-
minal manager, Al Adams, that the contract had expired
on March 31 and the employees would have to work on
his terms and conditions, which he did not specify. That
morning the employees at the Thomsoll facility repre-
sented by Local 528 struck. They returned to work on
April 9, 1979, on agreement between Respondent and
Local 528 that the employees would continue to work
under the terms of the expired contract until an agree-
ment was reached.5
On April 5, 1979, Klump sent a telegram to Moseley,
referring to a telephone conversation of April 4, 1979, to
the effect that members of Local 528 were insisting on
being covered by the National Master Freight Agree-
ment. Such insistence. Klump charged, was an unfair
labor practice and required cancellation of a meeting
scheduled for April 9, 1979. Klump announced an im-
passe unless by 10:a.m. April 6, 1979, Moseley contacted
Klump to negotiate economic relief and a Local agree-
ment for Thomson drivers and mechanics. In the event
of an impasse, Klump stated that Respondent would
' In aln initial telegram frolt Klump to Moe clc. conflirming the agree-
ment f the parties that the erlnplo>yecs would return to wltrk pending the
negtiatlaio ,f a new agreement. Kluimp used the phrase local labor con-
Iract Miol ey oJetlcted t this phrase In a econd telegram Kmp
omiltted that phrase. hbut mphailed that the continuation of the terms
and c)ndllt lns f the expired contract was lot to be interpreted a all
txlei1ln1 of the Natlional Master F:reight Agreemeit
t)During lth c ursc 1f the strike, Moele! had re. eral telephtne cti.er
satiill, wll h Kunlp retliltlg ti RLtspOltli'lls refuslal t1 negotllate for an
indllstlrride agreement Mele asked Klu mp if Kluinp siouId donilder
a tilr a:real agreement Il litti f the NtllOntil Master Freight Agreement
Klitllp responded ha1 t if he ere ti agree to those Iterms, h mlght is
.11 agree t I, Mislt. r Agreeniltt
415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enter into an agreement to utilize another method of
transporting its product.
On April 19, 1979, Moseley met with Buchholz and
Klump in the presence of a Federal Mediator. Buchholz
submitted a proposal, which did not contain full mone-
tary items. Moseley told Buchholz that the proposal did
not contain language for the trucking industry and sug-
gested that Buchholz produce another proposal with all
economics included. Buchholz said, "O.K."6
5. General communications
On November 22, 1978, Geyer wrote to Fitzsimmons,
expressing concern that Local business agents of the
Teamsters were reluctant to discuss the concept of Local
agreements at National's various manufacturing oper-
ations. Geyer pointed out that the Company was losing
approximately 55 cents per mile and had to take positive
action to remedy that situation. Geyer stated that corpo-
rate officials would have to give "due consideration to
alternative methods of handling our product transporta-
tion needs" in the event the Company could not secure
the cooperation of the Union.
On January 12, 1979, Klump sent identical letters to
each of the Charging Parties. Klump stated that he had
been informed that Local officials had not been persuad-
ed to give serious consideration to Respondent's request
for Local labor agreements covering Respondent's
Teamster employees. Klump informed the Local Unions
that the Corporation had initiated "a study of other ap-
proaches to handling the transportation of our products;"
that the Corporation would have no further obligations
under the National Master Freight Agreement as of
April 1, 1979, and "must be prepared to satisfy its trans-
portation needs in a different manner" subsequent to that
date.
On March 23, 1979, Roy L. Williams, cochairman of
the Teamsters' National Freight Industry Negotiating
Committee forwarded to Respondent the Union's negoti-
ating proposals for the National Master Freight Agree-
ment and supplements and riders thereto, with a cover-
ing letter to the effect that the Committee was ready to
meet with Respondent on the basis of previous letters.
On March 27, 1979, Geyer sent telegrams to Roy L.
Williams, Central Conference of Teamsters; Joe Morgan,
International Division, Southern Conference of Team-
sters; Charles E. Rogers, General Teamsters Local 745;
Hub Davis and James Moseley, Teamsters Local 528;
Loran Roberts, Indiana Conference of Teamsters; Bill
Bownds, General Teamsters Local 26. On March 28,
1979, Geyer sent a telegram to Ben Marsh, Teamsters
Local 543. The above telegrams restated Respondent's
position that it had withdrawn from the National Master
Freight Agreement and notified the union officials that
the employees at Horseheads had ratified a Local agree-
ment with Respondent. The telegrams stated further that
Local agreements must be obtained at the Lafayette, Ef-
fingham, Tyler, and Thomson divisions; that other meth-
6 As indicated above, Moseley met with Klump ad uchholz on
April 20, 1979. at Indianapolis, Indiana, a meeting attended by represenrta-
tives of all four Locals. At that meeting Klump announced Respondent's
final offer, a complete freeze on monetary items.
ods of transporting National's products were available,
and Geyer hoped it would not be necessary to use them.
On April 25, 1979, Williams wrote to Geyer and
Buchholz, referring to Respondent's desire to individual-
ly negotiate amendments and changes to the National
Master Freight Agreement and its various Supplements.
Williams suggested that Respondent contact Loran W.
Robbins, who had been designated by the National
Master Freight Negotiating Committee to act as chair-
man of a subcommittee.
On April 27, 1979, Parrott notified Respondent by a
form letter that Parrott and Marsh were the only author-
ized representatives for Local 543 in dealing with the
Company pursuant to the recently negotiated National
Master Freight Agreement.
6. The contract with Local 529
On February 26, 1979, Respondent and Local 529 at
Horseheads, New York, entered into a Local contract,
omitting all reference to the National Master Freight
Agreement. Under that contract employees were consid-
ered in two classifications, those employed on the execu-
tion date of the contract and those hired thereafter. Basi-
cally, the rate for current employees was $9.41 per hour;
employees hired subsequent to the execution date of the
contract received $6 per hour, effective April 1, 1979;
$6.40 per hour, effective April 1, 1980.
7. The strike of employees covered under the
National Master Freight Agreement
On April 1, 1979, negotiations for employees covered
under the National Master Freight Agreement broke
down and the employees of a number of companies in
the multiemployer unit, including employees in the La-
fayette, Indiana, area, went on strike from April 1-10,
1979. However, except for the strike of Respondent's
drivers at the Thomson facility, Respondent's employees
represented by Teamster Locals did not strike during the
month of April 1979.
D. Chronology of Events From May 6, 1979, to
January 14, 1980
1. The strike of May 6, 1979
On May 6, 1979, the employees represented by the
Charging Parties at Lafayette, Effingham, Tyler, and
Thomson struck. 7
On the same date Klump sent identical mailgrams to
Hub Davis, Local 528; Parrott, Local 543;8 Bill Bownds,
Local 26; and Rogers, Local 745. Klump informed the
union officials that Respondent would enter into a long-
term agreement on May 9, 1979, whereby Respondent's
products would be hauled by an independent transporta-
' On May 7, 1979, Local 543 handbilled the L.afayette plant. stating
that National Homes wanted to freeze its members' wages, insurance and
pension with no increase and that an impasse had been reached in negoti-
atllng for a contract.
' Parrott did not receive the mailgram, which was ent to his Kokomo
rather than Lafayette address. A copy of the mailgram was forwarded to
him by Klump on May 14. 1979, with the explanation that the mailgram
wa,1s ent to one of the two locations listed (In Parroltt's letterhead
916
W. G BEST HOMES CORPORATION )
tion company, and that Respondent would no longer
employ drivers or mechanics; employees holding such
jobs with Respondent would be terminated.
On May 8, 1979, Davis replied to the above mailgram,
charging that subcontracting without bargaining was an
unfair labor practice and requesting a meeting to negoti-
ate with respect to subcontracting and all other issues.
On the same date Klump responded to Davis by mail-
gram that the parties had reached impasse on a collec-
tive-bargaining agreement and subcontracting, and that
charges of unfair labor practices had been filed against
the Unions because of their failure to bargain in good
faith:9 that further bargaining would he fruitless.
On the same date James . Hicks, Jr.. counsel for
Local 745, wrote to attorney Michael P. Gray, with re-
spect to the unfair labor practice charges filed by Re-
spondent against Local 745. Hicks stated that Local 745
was prepared to bargain with National Homes on any
proposal; that no contract or bargaining unit or agent
was being imposed on National Homes; that National
Homes had refused to bargain in good faith; and that the
strike at Tyler was an unfair labor practice strike.
On May 9, 1979, Respondent sent letters to employees
represented by the Charging Parties at Effingham,
Thomson, and Tyler to the effect that independent truck-
ing companies would begin hauling Respondent's prod-
ucts and servicing its equipment on May 9, 1979, and
that their employment was terminated as of that date. On
May 10, 1979, the same letter was mailed to employees
represented by Local 543 at Lafayette. Between June 12
and 14, 1979, Respondent rescinded the above letters and
informed its employees at the four locations that they
would be treated as striking employees.
2. Respondent subcontracts the work of its
transportation departments at the four struck plants
On March 14, 1979, Buchholz first contacted the
Ryder systems for the purpose of acquiring an outside
carrier to fill Respondent's transportation needs. A
phone call from Ryder to Geyer resulted in a meeting on
May 9, 1979, and an oral understanding whereby Ryder
would take over the duties of employees represented by
the Charging Parties at the four struck plants.
On May 11, 1979, Respondent signed an interim agree-
ment with an independent contractor, David Kaniewsky,
for the Lafayette facility to be effective until Ryder was
prepared to assume responsiblity in providing drivers at
Respondent's four facilities.
On May 9, 1979, Respondent entered into an interim
service agreement with Specialized Transportation, Inc.,
a division of Ryder, for drivers at all four struck plants
to be in effect until permanent operating authority was
9 On April 23, 1979, Respondent filed C charges against Local 543
alleging that the Union had failed to bargain in good faith; that Respond-
ent desired a local agreement separate and apart from the Teamsters Na-
tional Freight Agreement and Respondent also proposed a wage and
benefit freeze; that the Union was not receptise to these proposals and
refused to discuss them. The parties stipulated at the hearing that similar
charges were filed by Respondent against the other three Charging Par-
ties All charges were dismissed by the respective Regional t)irectors in
the regions in which the charges were filed: the dismissals were appealed
to the office of the (General Counsel, and the appeals were denied. No
complaints issued
granted to Ryder by state and Federal authorities. On
June , 1979, Respondent signed -year agreements with
DPD, Inc., another division of Ryder, for the facilities at
Effingham, Lafayette, and Tyler to commence when
DPD, Inc., received operating authority from state and
Federal authorities. The same contract was signed with
DPD. Inc., on May 9, 1979, for the Thomson facility.
3. Bargaining post Respondent's decision to
subcontract
(a) Bargaining with Local 543
On May 23, 1979, representatives of Respondent met
with officials of Local 543 and other Locals at the office
of a mediator for the Federal Mediation and Conciliation
service at Indianapolis, Indiana. Present were Clyde L.
Peterson, an attorney, Klunip and Buchholz for Re-
spondent; for the Unions, Parrott of Local 543, Haddock
of Local 745, DePratt of Local 26, Moseley of Local
528, and Fillenwarth, attorney for Local 543.
At the outset, Peterson stated that he was there to bar-
gain with Local 543 about the impact and effect of the
decision made by National Homes to handle the trans-
portation of their products by subcontracting out the
entire trucking operation. Parrott asked who was han-
dliig the trucking out of Lafayette. After a break,
Klump and Peterson advised Parrott that seven inde-
pendent contractors were working out of the Lafayette
location; that Repsondent had entered into a temporary
drivers' service agreement with a division of Rvyder and
that a full-blown yearly contract was being worked on at
that time. Peterson also advised the union officials that if
the agreement was breached by Respondent it would be
responsible for Ryder's entire financial obligations to
date in assuming responsibility for Respondent's trans-
portation needs.
During the course of the meeting, Peterson said that
the Company had made a decision and "that's where the
parties were;" that Peterson was prepared to bargain
about the effects, which normally consisted of severance
pay, finding other work for the drivers at National
Homes, if possible, and that type of thing.
On June 14, 1979, Parrott sent Geyer a letter request-
ing a meeting for the purpose of negotiating wages,
hours, and conditions of employment at the Lafayette
plant under the auspices of the Federal mediator in In-
dianapolis. On June 15, 1979, Geyer replied that a repre-
sentative of National Homes had met with Parrott on
May 23, 1979, to discuss the effects of Respondent's deci-
sion to subcontract the Lafayette plant's transportation
work; that Respondent's officials remained ready and
willing to discuss the effects of that decision at a conven-
ient time and place.
Peterson attended a meeting with Local 543 on June
21, 1979. Present at that meeting were Peterson, Buch-
holz, and Klump for the Company; for Local 543, Par-
rott, Marsh, and four members of Local 543.
Parrott opened the meeting by saying that he wanted
to talk about wages, fringe benefits, and working condi-
tions. Peterson responded that the Company would listen
to anything Parrott had to say, but that time was getting
917
I)tCISI()NS OF NA I()NAI. LAB()R RELATIO()NS H()ARI)
late. The agreement with Ryder had been executed on
June 1, 1979, that within 10 days or 2 weeks from the
date of the current meeting, the certificate of authorities
would be granted to Ryder and Ryder would be com-
pletely in the business of operating Respondent's truck-
ing operations.
Parrott stated that health, welfare, and pension had to
be the same as Master Freight; that there had to be an
improvement in bereavement pay, an additional paid
holiday, strong successorship language; that the rate
would have to be $9.50 per hour, with one-fourth of a
cent additional on the mile. At Parrott's request, Peter-
son handed Parrott a copy of the Horseheads Agree-
ment, which Peterson had obtained from Kluinp. Parrott
said that Local 543 wanted an agreement with National
Homes; that the Horseheads agreement was not accept-
able to Local 543, but that something should be worked
out between Horseheads and National Master Freight.
Peterson restated his position that he was ready to listen
to any proposal from Local 543, but that time was abso-
lutely running out. Peterson also advised Parrott that Pe-
terson and Klump would be happy to put Parrot in
touch with the Ryder officials.
(b) Bargaining with Local 528
On May 16, 1979, John M. Arnold, attorney for Na-
tional Homes, wrote Hub Davis, Local 528, inviting
Davis to meet and discuss all collective-bargaining issues
relating to Respondent's Thomson facility, including sub-
contracting the transportation function of the Thomson
plant.
Moseley called Arnold's office and was advised that
John F. Wymer 111, would be handling the case. Mose-
Icey and two stewards met with Wymer, Buchholz, and
Klump on May 30, 1979. Apparently, not much was ac-
complished at this meeting. Wymer reviewed Respond-
ent's notification to the Union that the Company would
be compelled to go to subcontracting if it could not
secure economic relief. Moseley suggested that the Com-
pany make him an offer. Wymer said he would see what
he could do.
The parties met again on June 28, 1979. Moseley told
Wymer that Moseley was there to receive Wymer's pro-
posal. Wymer said he did not have a proposal. Wymer
asked Moseley to give Wymer a proposal at the next
meeting.
On June 29, 1979, Wymer wrote to Moseley, schedul-
ing another meeting for July 9, 1979, but suggesting that
the meeting should be held earlier in view of the fact
that Respondent's temporary subcontracting of its trans-
portation function would be replaced by permanent sub-
contracting as soon as the necessary transportation au-
thority was granted, about July 9 or shortly thereafter.
Wymer suggested that the parties meet within the next
week to "resolve their widely divergent economic posi-
tions prior to this consummation of the subcontract."
Wymer stated that the Company was willing to listen to
any proposals from the Union which, from an economic
standpoint, would reduce the Company's need to subcon-
tract its transportation function.
On July 3, 1979, Moseley sent Wymer economic pro-
posals for the drivers and shop employees represented by
Local 528. The Union proposed increased hourly rates of
$1 in 1979, $.50 in 1980, and 1981X; increased mileage
rates, crane rates, sick, holiday, and funeral leave; in-
creased contributions to health, welfare, and pensions.
The parties met on July 9, 1979. Wymer went over
local 528's proposal and said it was too high, that he
had hoped Moseley could come up with a more eco-
nomical package. Moseley, who testified that the rates
could have been higher in some areas than the most
recent National Master Freight Agreement, said it was
only a proposal and asked for a counterproposal. Wymer
had none. Another meeting was scheduled for July 17.
1979.
On July 17, 1979, the parties met again. A second pro-
posal was given to Wymer by Moseley. This proposal re-
duced the July 3 increase in hourly rates for drivers from
$1 in 1979 to $.80; from a $.50 increase in 1980 and 1981
to $.35. Mileage and crane rates were also reduced to
some extent. Moseley testified that it "could be" that
these rates were the rates that were settled on under the
National Master Freight Agreement to take effect April
1, 1979.'
On July 18. 1979, Wymer wrote to Moseley, schedul-
ing a meeting for July 25, 1979. Wymer stated that
Ryder had secured authority to take over National's
Thomson transportation function on July 17, 1979, and
that the subcontract between National and Ryder was
consummated, and in effect. Wymer pointed out that the
Company's flexibility in rescinding the subcontract with
Ryder was at this time greatly reduced. However,
Wymer was prepared to discuss the effect of the subcon-
tract and any other matters at the July 25 meeting.
On July 24, 1979, Moseley requested that the July 25
meeting be canceled due to the Company's refusal to
make economic counterproposals.
On July 27, 1979, Wymer responded, reviewing the re-
lationship between the parties with respect to subcon-
tracting. Wymer pointed out that the Company had noti-
fied the Union in the fall of 1978 that it was withdrawing
from the National Bargaining Association and required
extraordinary relief to remain in the transportation busi-
ness; that the Company had proposed a new contract on
a Local basis and had offered to open its books to the
Union to support Respondent's claim to economic hard-
ship; that the Company had repeatedly informed the
Union that the Company would enter into an agreement
for another method of transporting its product if the
Union persisted in demanding the National Master
Freight Agreement; that the Company's subcontract on
May 9, 1979, was executory in nature and would not
take effect until the necessary transportation authority
was granted by the appropriate government agencies;
that, despite these facts, the Union in its latest proposals
had presented an economic proposal 3 per cent higher
than the recently negotiated National Master Freight
Agreement; that the Union's proposal was even more un-
realistic in comparision to the Company's subcontract
option, which was consummated on July 17, 1979.
'" I'hi ctrilract is not I evidcnclc
91l
W Gi ES'l HOMES CORP()RAI ION
4. The unconditional offers to return to work
On December 5, 1979, James L. Hicks. Jr., attorney
for Local 745, offered, unconditionally, to return to
work all employees represented by that Union at Tyler,
Texas. On December 6, 1979, the same offer on behalf of
employees employed at Lafayette, Indiana, was made by
Lawrence Parrott of Local 543. On December 7, 1979,
the same offer was made by Bill IBownds of Local 26 for
employees employed at Effingham, Illinois. On January
14, 1980, the same offer was made by James Moseley of
Local 528 for employees employed at Thomson, Geor-
gia.
On December 13, 1979, Klump responded to Hick's
letter of December 5, stating that the Company had
changed its method of transporting products and that the
jobs of the strikers had been eliminated. Klump reviewed
the history of bargaining between the parties, alleging
that the Union had refused to bargain in good faith by
insisting that the Company remain a part of the multiem-
ployer bargaining unit under the National Master Freight
Agreement and continued to demand that the Company
agree to the terms of that Agreement. Nevertheless,
Klump expressed a willingness to meet with Hicks to dis-
cuss any subject Hicks wished to bring to the bargaining
table. On December 14, 1979, Klump sent the same letter
to Parrott and Bownds, responding to the latters' letters,
respectively, of December 6 and 7, 1979
On December 26, 1979, Hicks responded to Klump's
letter of December 12, requesting information as to the
Company's intention to bargain about the elimination of
the jobs of the strikers or a comprehensive collective-
bargaining contract.
On December 28, 1979, Parrott responded to Klump's
December 14 letter, requesting a meeting to discuss
wages, hours, and conditions of employment for employ-
ees represented by Local 543 at Lafayette, Indiana.
As of the date of the hearing, none of the striking em-
ployees represented by the Charging Parties had been re-
instated.
ANAI YSIS ANI) FINAL CONCI USIONS Oif LAW
Subcontracting unit work is a mandatory subject of
bargaining under Section 8(a)(5)(d) of the Act, Fibre-
board Paper Products Corp. v. N.L.R.B., 379 U.S. 203
(1964); obwn & Country Manufacturing Company, Inc.,
and Town & Country Sales Company, Inc., 136 NL.RB
1022 (1962); not excused because the employer was moti-
vated by valid, economic reasons. R. L. Sweet Lumber
Company, 227 NLRB 1084 (1977) The obligation re-
quires an employer to notify the union involved of the
proposed subcontracting agreement and to give the
union a full and fair opportunity to discuss the decision
and to consider alternative proposals. The Lange Compa-
ny, A Division of the Garcia Corporation, 222 NLRB 558,
563 (1976); AMCAR Division, ACF Industries, Inc., et al.,
231 NLRB 83 (1977). Normally, the union must be noti-
fied of a proposed subcontract eliminating unit jobs
before execution of the agreement. American Cyanamid
Company, 235 NLRB 1316 (1978). Nor is a mere state-
ment of a general intention to subcontract in the future
sufficient prior notice where subsequent bargaining
occurs in the context of a fait accompli. Florida-7Texas
Freight, Inc., 203 NLRB 509 (1973). Where, however,
the union is given full opportunity to bargain about an
executory contract, which may be rescinded, the prima
fJcice showing of a violation because of failure to give the
union prior notice is excused. Ilartmann luggage Compa-
ny, 145 NLRB 1572 (1964); .lmerican President Lines,
Ltd., 229 NLRB 443 (1977).
The burden of requesting bargaining about a change or
a proposed change in business operations shifts to the
union on notification by the employer that such a change
is imminent. Citizens National Bank of Wi nmar, 245
NLRB 389 (1979). Although conjecture and rumor are
not an adequate substitute for a formal notice N.L.R.B.
v. Rapid Bindery. Inc. & Irontier Bindery Corp.. 293 F.2d
170, 176 (2d Cir. 1961). notice less than formal may be
sufficient where more formal notice would have been
futile in view of the union's insistence on bargaining
through an association unit from vw hich the employer has
properly withdrawn and the union is not interested in
bargaining with the Employer on an individual basis.
U.S. Lingerie Corporation, 170 NIRB 750 (1968). See also
A.:L. BR. v. Spunn-Jee Corporation and the James Te.rtile
Corporation, 385 F.2d 379 (2d Cir. 1967), to the effect
that the union waved its right to bargain about suhcon-
tracting where the employer had indicated a willingness
to discuss this issue, among others, but the union failed
to request bargaining about the employer's plans.
It is the position of the General Counsel that Respond-
ent's xwarnings to the Charging Parties and their parent
organizations prior to May 6, 1979, that it would seek al-
ternative methods of transpotilng its product if local
agreements could not be negotiated were "bargaining
ploys" designed to obtain the least expensive contract.
With respect impending impasse andti Respondent's re-
solve to enter into an agreement to transport its product
by another method, the General Counsel contends that
this notice was merely a response to Local 528's strike
and nothing more than a statement that Respondent in-
tended to continue to operate during the strike.
The General Counsel also contends that Respondent's
notice of May 6, 1979, that it would enter into a long-
term agreement with an independent carrier on May 9,
1979, did not give the Union sufficient time to evaluate
the situation and that the bargaining which occurred sub-
sequent to the latter date was in the context of a fait ac-
compli.
Respondent takes the position that the Charging Par-
ties had been forewarned months before the strike and
notice of May 6, 1979, that Respondent contemplated the
subcontracting of its transportation department. Despite
such prior notice, the Charging Parties failed to request
bargaining about the proposed subcontracting. Following
its final notice of May 6, Respondent offered to bargain
with the Unions about the effects of the decision and
about the decision itself. which was executory in nature;
that the Unions failed to reduce their demands to save
the jobs of the strikers. Moreover, as a further defense to
the allegations of the complaint. Respondent contends
that the Charging Parties failed to bargain in good faith
by insisting that Respondent continue to remain a
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member of the national multiemployer bargaining unit;' t
accordingly, Respondent cannot be held to have
violated
the Act with respect to subcontracting.
I have carefully considered all of the evidence in this
case, including the events that occurred prior to May
6,
1979, and those which occurred subsequent to that date.
Applying the principles of law set forth in the cases
cited
above, I conclude that the General Counsel has
not es-
tablished that Respondent violated Section 8(a)(5)
and
(1) of the Act by permanently subcontracting the work
of its transportation department.
The Charging Parties were informed early in 1979 that
Respondent had withdrawn from the National multiem-
ployer association; they were apprised of Respondent's
economic problems; they were on notice that in the year
1979 negotiations for a new contract would be on a new
and different basis. They were warned repeatedly
that
Respondent was prepared to utilize other methods
to
transport its products. In the face of these warnings and
Respondent's obvious determination to reduce transpor-
tation costs, the Unions held firm, first, to a continuation
of the National Master Freight Agreement and, finally,
to the same terms and conditions negotiated by the
par-
ties to that agreement. 1 2
Understandably, as Moseley put it in July 1978, the
Unions were unwilling to give up something they
had
fought to get for 18 years "through blood, sweat,
and
tears." But the issue before me is not a question of supe-
rior equity; it is a narrow point of law. Respondent
has a
right under this Statute to change its method of doing
business for economi c reasons. Parrott testified
that he
did not take Geyer seriously on February 16, 1979.
when
At At the hearillg CounsIl fIr r Rispolrnlt ttetptd
I crss-cxair ine
witnesses for he (eneral (ounscli hi slablsh Iis aspecl
of Resplrdecltl s
defelse Counsel for tile (eeral C inscl ohiected on
the grilurid t hat
the issue of a violation of Sec. w()(3) as nolt
before me I ruled thai the
issue va is itigahle as a mailer f defense. hut directed Resporndent
to re-
serv e qus liilns of Ihis altre for I pni rtion of the
case sir that lhe (in-
eral Couinsel culd present his prima j' cailse for
a vsi lalito of ti- Act
wilhoLu llndue interruption At the heariing arid in
his hrel' cunsel for
RespRondet ohjCLi ds ilgorosy It this lahing
I have rslewed the ssuc
aid ralflir ll my ruling Responrl dent had fll
pporunity during tilt
course of llh hring li presn ev\.ery aspecl If
its defellse Ihrlrugh Ihe
examnallln of ltlresses, who remained as iable fi
r Respondenli' cxarn-
Ilialion alter he Gerlcral (ounel rtested Indeed. at
tie close o thear-
trig nmuch of Reslrlden's eildcnLe u11i the 8(h) i) pIll
ilt wais irttrlduled
by tipulltionr oif all parties. ttherc ohs rhatg
uierliSIs rliatlittalii of
wi nesses ad a prrolongation of he hearirg
Respondetsllt clullsel also objected at the hearing,
ani d 1l his brief, to
nly refual to admit idlnto evidece afilalt I ilr WitIhS Sh
w "ere oil the
stlnd iunless isuch aftti(l.l ts cotnailtane tlalelnts
cillrladi. tr\ of the ,ait-
leSS tIsnUlln y I i here to Iha rling alsol l i tIy
pllilrri. he test illol
II' a i llress n the sland, suhj cit t crss- exilanlllu
atll . id rehabhliltiation.
it nece sary, Is prefetrable ito a prior sw rrl st tcnlclle
wlclhetr r r ot such
satetll incl udes adlllismos
2 Allhoulgh urcessar t rni decision, I litrd
ithout Ir it Re
sprrdenl's argumenll t the iulns bargained i had
faith i violation of
Sec. 8b)(3) C(learly, their hearts' desire swas 1to remain wirlhin
the fraie-
work f the National Master Freight Agreerient,
and Rc,ponldenll was
pressured Io reilaill a rilmh er of tli Nanrll al rllultrtlrlplirycr
iasso ciltlli
III the end. housever their mailln COncell was
toi Ittalin the ecio nilllc
benefits they had acquired over the years thrugh
cllective bargaining
Respolidetntl was able Io reach a I ocal agreement
with Ilocal 529 at
Horseheads The way ulas orpe to use this agreenelll
as a model for lie-
goitialluorls at tile filur plants iols edl herein Hluwever.
nreither Respond-
en nr any of the fi ur I culs vigorously pursued
this objective Both
sides remained obidurate on economics and that
is the wulrst thal can be
said of either side
Geyer said that Respondent was negotiating with outside
carriers for the Tyler and Thomson plants and would
start looking for carriers for Horseheads, Effingham,
and
Lafayette if Local agreements could not be negotiated at
those locations. Parrott impressed me as a very able and
sophisticated labor leader. Given the circumstances of
this case, particularly Respondent's withdrawal from the
National association, Parrott should have realized
that
Respondent was not playing games, that Geyer's threat
to subcontract its transportation department to an outside
carrier was a serious one. Certainly, he and other offi-
cials of the Charging Parties should have realized by
March 27 and 28, 1979, that Respondent was in dead ear-
nest. On those dates. Respondent notified the Charging
Parties and their parett organizations that a Local agree-
ment had been ratified by the Horseheads Local and that
Respondent would use other methods of transporting its
products if Local agreements could not be obtained
at
the other four plants. As late as April 20, 1979, in the
face of Respondent's continued threat to utilize outside
carriers, the Charging Parties insisted that they had to
have the terms and conditions of the National Master
Freight Agreement. Not until June 21, 1979, when the
strike was in full progress, did Parrott ask to see a copy
of the Horseheads agreement, and then to say that it was
not acceptable.
Contrary to the General Counsel, the Fibreboard, rule
is not so narrow as to require an employer to give notice
of a specific decision to subcontract unit work. Hart-
mann Luggage Company, upra. The employer's obliga-
tion is merely to give the union an opportunity to
per-
suade the employer not to subcontract, not to substitute
an independent contractor to perform the work thereto-
fore performed by the employer's employees. Here. as
in
most cases of this type, only one argument w ould have
persuaded this employer to forgo its legal right to get
out of the transportation business. That argument was
a
reduction in the Unions' economic demands for
a new
contract. It was an argument that was successfully
made
by Local 529 at Horseheads. It was an argument the
Charging Parties refused to make.
Following the May 6. 1979, strike, the bargaining
rela-
tionship betweeci the parties changed dramatically. Re-
spontidet's position hardened. The Unions and their
members were informed that Respondent's products
would be hauled by an independent contractor and
the
jobs of the employees would be terminated. Charges
of
refusal to bargain were filed by Respondent against the
Unions.
The bargaining which occurred over the next
few
months was, at best, armslength and, at worst, perfunc-
tory. Peterson announced at the first meeting on May
23,
1979, with Local 543, attended by the other three
Locals, that Peterson was there to talk about the effects
of the subcontracting decision; that the Company had
made a decision and that's where the parties were. Al-
though Peterson softened his tone at te June 21 meeting
with Parrott, Peterson made it clear that Parrott would
have to make substantial concessions before Respondent
would consider rescinding the agreements with Ryder.
three of which had been executed on June 1, and
would
920
W G BEST Hf()MES CORPORATION
become effective in a few weeks. Parrott said that some-
thing should be worked out between the }lorseheads
agreement and the National Master Freight Agreement.
Peterson indicated that time was running out, but asked
for an offer. No offer was forthcoming
In his negotiations with Moseley of Local 528, Wymer
put more emphasis on bargaining about the subcontract-
ing decision, asking Moseley to make an offer that would
reduce the Company's economic need to engage an inde-
pendent contractor. Moseley gave Wymer two propos-
als, the first higher in some areas than the recent Nation-
al Master Freight Agreement and the second apparently
the same as the National Agreement.
It may well be that the bargaining after May 6, 1979,
was an exercise in futility. If so, the blame must be
shared by both sides. The evidence suggests that both
sides were jockeying for legal position rather than at-
tempting to break the impasse. Neither side was prepared
to yield on economics,
In this context, considering the events before and after
May 6, 1979, it would be naive to conclude that the
Unions were given insufficient notice of Respondent's
subcontracting plans, or an inadequate opportunity to
bargain about them. Indeed, during none of the bargain-
ing meetings did the Unions raise the issue of subcon-
tracting and offer Respondenit alternatives. I am satisfied,
however, that it was an ever present consideration,
which the Unions chose to ignore. Implicit in the
Unions' position was the threat to strike to force Re-
spondent to yield to their terms. Explicit in Respondent's
position was the threat to subcontract its transportation
department to force the Unions to yield to Respondent's
terms. Both threats were carried out.
In sum, what emerges from this extensive record is a
test of economic strength between Respondent and the
several Teamster Locals representing Respondent's em-
ployees. In that contest it is not the function of the
Board to assist one to the detriment of the other.
leaving concluded that Respondent has not violated
Section 8(a)(5) and () of the Act by subcontracting unit
work without giving Teamsters Local 26, Local 528,
Local 745, and Local 543 prior notice thereof and an op-
portunity to bargain with respect thereto, I conclude fur-
ther that the strike of May 6, 1979, was an economic
strike from its inception and was not converted thercaf-
ter into an unfair labor practice strike.
I therefore conclude that Respondent has not violated
Section 8(a)(3) and (1) of the Act by failing to reinstate
striking employees to their former positions on their un-
conditional application to be so reinstated
Accordingly, I recommend that the complaint in these
consolidated cases be dismissed in its entirety.
ORDER' '
It is hereby ordered that the complaint in the instant
cases be, and it hereby is, dismissed in its entirety.
: 11I leh c\ enll 11i, \c.vtip lln are flICl i pr' lidC hb S.c Li2 4h oI
the Rules and Rcgulationl, of hc Natiional Labor Relation, Bohard,. the
iinlllg, conicluslols. aled rec,nlillni vidcd O(rder hcrlll shall as proi'dld
itt Sec 1(2 4X i Rl s Ri l, bndi CtILIt ' to e .ltOpttIed b the Boar.ld 1and
hcct)l e its ofiding. -'I( i.s.k tti'. ai ( )rt1er itd ill objecttinl
s
thert
shall he denied "is d tor .1l purp wes
921