Don Lee Distributor, Inc. (Warren), et al. - Decision Summary

Don Lee Distributor, Inc. (Warren), et al. (7-CA-31719(2)-(7), et al.; 322 NLRB No. 82) Waterford, Mich. Nov. 8, 1996. The Board affirmed the administrative law judge's finding that the respondents, six beer distributors, violated Section 8(a)(5) and (l) of the Act by engaging in joint bargaining without the union's knowledge or consent. The respondents, who were formerly members of various multiemployer associations that had successive contracts with Teamsters Local 1038, resigned from a multiemployer association to which they had all belonged and, in 1990, entered into a "mutual aid pact" in which they agreed to 22 "minimum objectives . . . for a new Collective Bargaining Agreement." The Board said in finding a violation: "When either employers or unions which have in the past bargained in separate units begin, without the consent of the other side, to bargain jointly as if bargaining for a single contract, they are engaging in unlawful insistence on a nonmandatory subject." The Board further stated:

Because deviation from the objectives could be achieved only by a majority vote, three Companies could veto another company's contract, and enforce this veto with the agreed-on financial penalty. By entering into the pact, therefore, each Company effectively lost its freedom to make the ultimate decision regarding provisions of its contract with the Union, ceding that decision to the other Companies as a group. In keeping with that agreement, as the judge found, the Companies did bargain in effect as a single group up to and including their implementation of final offers.

The Board did not reach the issue of whether the respondents' implemented proposals on casual employees were unlawful under McClatchy Newspapers, 299 NLRB 1045 (1990), remanded 964 F.2d 1153 (D.C. Cir. 1992), decision on remand 321 NLRB No. 174 (Aug. 27, 1996), and Colorado-Ute Electric Assn., 295 NLRB 607 (1989), enf. denied 939 F.2d 1392 (10th Cir. 1991), cert. denied 112 S.Ct. 2300 (1992). The Board, agreeing with the judge's basis for finding no violation with respect to probationary employees, did not pass on the cited cases.

Charges filed by Teamsters Local 1038; complaint alleged violation of Section 8(a)(1) and (5). Hearing at Detroit on about 60 days between Nov. 16, 1992 and Oct. 26, 1993. Adm. Law Judge Benjamin Schlesinger issued his decision Dec. 1, 1994.