Branch International Services

National Labor Relations Board - Board Decisions

May 24, 1994

313 N.L.R.B. 1293 (N.L.R.B. 1994)

1293
313 NLRB No. 235
BRANCH INTERNATIONAL SERVICES
1 The judge inadvertently omitted language concerning the refusal-
to-furnish-information violation in his recommended Order and in
his notice to employees. We have modified the Order and notice to
include such language.
1 All dates herein are 1992 unless otherwise indicated.
Branch International Services, Inc. and Ben
Ruegsegger Trucking Services, Inc. and Inter-
national Brotherhood of Teamsters, Local No.
486, AFL–CIO. Cases 7–CA–32902, 7–CA–
33214, and 7–CA–33359
May 24, 1994
DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On November 3, 1993, Administrative Law Judge
Donald R. Holley issued the attached decision. The
Respondents filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order as
modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents,
Branch International Services, Inc., Auburn Hills,
Michigan, and Ben Ruegsegger Trucking Services,
Inc., Kawkawlin, Michigan, their officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order as modified.
1. Insert the following as paragraph 1(a) and reletter
the subsequent paragraphs.
‘‘(a) Failing and refusing to furnish International
Brotherhood of Teamsters, Local No. 486, AFL–CIO
with relevant information which was necessary to per-
mit it to perform its representative functions.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to furnish International
Brotherhood of Teamsters, Local No. 486, AFL–CIO
with relevant information which is necessary to permit
it to perform its representative functions.
WE WILL NOT bypass the Union and deal directly
with employees by unilaterally permitting employees
to decide whether union dues, initiation fees, and uni-
form assessments will be deducted from their pay and
be remitted to the Union without regard to whether
such employees are signatory to valid checkoff author-
izations.
WE WILL NOT substitute the B.I.S., Inc. Health Plan
for the contractually required Blue Cross/Blue Shield
Plan.
WE WILL NOT refuse to honor and abide by the
checkoff provisions contained in article 1, section 3, of
the collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL provide bargaining unit employees with
the Blue Cross/Blue Shield Health coverage required
by the current collective-bargaining agreement.
WE WILL reimburse the Union for monetary dam-
ages it sustained as a result of our refusal to honor and
abide by article 1, section 3, of the contract since De-
cember 1, 1991, and as a result of our April 8, 1992
action which caused employees to elect whether union
dues, initiation fees, and uniform assessments would
be deducted from their pay and be remitted to the
Union without regard to whether such employees were
signatory to valid checkoff authorizations.
WE WILL reimburse unit employees for any losses
they sustained, if any, as a result of the substitution of
the B.I.S., Inc. Health Plan for the contractually re-
quired Blue Cross/Blue Shield Health Plan, with inter-
est.
BRANCH INTERNATIONAL SERVICES,
INC. AND BEN RUEGSEGGER TRUCKING
SERVICES, INC.
Dennis R. Boren, Esq., for the General Counsel.
Charles Garavaglia, of Auburn Hills, Michigan, for the Re-
spondent.
Gerry M. Miller, Esq. (Previant, Goldberg, Uelmen, Gratz,
Miller & Brueggeman, S.C. Brotherhood), of Milwaukee,
Wisconsin, for the Charging Party.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. On a
charge filed by International Brotherhood of Teamsters,
Local No. 486, AFL–CIO in Case 7–CA–32902 on February
11, 1992,1 the Acting Regional Director for Region 7 of the
National Labor Relations Board issued a complaint on March
26 which alleged, in substance, that Branch International
1294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Par. 10 amended to add (drivers) after operators; par. 14(a)
amended by adding p.m. to 3; and par. 14(b) amended by changing
4(g) to 4(f).
3 The parties are agreed, and I find, the appropriate bargaining unit
to be:
All company drivers and owner/operators (drivers) employed by
Respondents at or out of Respondent Ruegsegger’s 1754 Chip
Road, Kawkawlin, Michigan facility, but excluding mechanics,
guards and supervisors as defined in the Act.
Services, Inc. (Branch) and Ben Ruegsegger Trucking Serv-
ices, Inc. (Ruegsegger) are joint employers and they violated
Section 8(a)(1) and (5) and Section 8(d) of the National
Labor Relations Act by: refusing to furnish the Union with
requested information; unilaterally requiring unit employees
to complete new job applications; unilaterally instituting new
medical insurance while ceasing to provide contractually re-
quired medical insurance; and refusing to remit union dues
and initiation fees in accordance with a subsisting collective-
bargaining agreement. Branch and Ruegsegger (Respondents)
filed a timely answer denying they had engaged in the unfair
labor practices alleged in the complaint. Thereafter, on April
28, the Union filed the charge in Case 7–CA–33214, and on
June 3 the Region issued a second complaint which alleged,
in substance, that the Respondents violated Section 8(a)(1)
and (5) of the Act by: dealing directly with employees by
distributing a memo among them which requested that they
elect whether or not they wanted union dues deducted from
their paychecks; and by refusing to abide by a contractual re-
quirement which obligated them to deduct union dues, initi-
ation fees, and uniform assessments from the pay of bargain-
ing unit employees for submission to the Union. By order
dated June 4, Cases 7–CA–32902 and 7–CA–33214 were
consolidated for trial. Respondents filed timely answers de-
nying they had committed the unfair labor practices alleged
in the June 3 complaint. Subsequently, on June 5, the Union
filed the charge in Case 7–CA–33359, and on July 14 the
Region issued a complaint in that case.2 In substance, the
complaint alleges that Respondents violated Section 8(a)(1)
and (5) and Section 8(d) of the Act by: threatening employ-
ees with unspecified reprisals for supporting the Union; and
by unilaterally instituting a 10 a.m. dispatch time for a Penn-
sylvania run, although the parties’ collective-bargaining
agreement specified that dispatches would be made at 3 p.m.
All three cases were consolidated for trial by order dated
July 15. Respondents filed a timely answer denying they had
engaged in the unfair labor practices alleged in the July 14
complaint.
The case was heard in Detroit, Michigan, on June 7, 8,
and 9, 1993. All parties appeared and they were afforded full
opportunity to participate. On the entire record, and from my
observation of the demeanor of the witnesses who gave testi-
mony, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Ruegsegger, a Michigan corporation, with an
office and place of business in Kawkawlin, Michigan, is en-
gaged in the interstate transportation of freight. During the
12-month period ending October 11, 1991, it derived gross
revenue in an amount exceeding $50,000 for delivering
freight from Michigan to points located outside the State of
Michigan. It is admitted, and I find, that Respondent
Ruegsegger is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Respondent Branch, an Indiana corporation, with an office
and place of business in Auburn Hills, Michigan, is engaged
in the business of leasing employees to other businesses in-
cluding Respondent Ruegsegger and other employers directly
engaged in interstate commerce. During the year ending De-
cember 31, 1991, Respondent Branch provided employee
leasing services valued in excess of $50,000 directly to cus-
tomers located outside the State of Michigan. It is admitted,
and I find, that Respondent Branch is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that International Brotherhood of
Teamsters, Local No. 486, AFL–CIO is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent Ruegsegger is a trucking company which
transports general commodities. It normally utilizes about 15
drivers, some of whom are owner-operators. All drivers pull
company trailers, but owner-operators operate tractors which
they own. Company drivers simply receive pay for driving,
while owner-operators receive pay for driving plus separate
payment for the use of their trucks. At all times material, the
drivers have been supervised by: Ben Ruegsegger, president;
Alan Ruegsegger, general manager; Ron McNally, dispatcher
and maintenance supervisor; and Lynn McNally, office man-
ager (all admitted supervisors).
The Union has represented Respondent Ruegsegger’s driv-
ers since 1964, and the parties have been signatory to a num-
ber of collective-bargaining agreements over the years. Such
agreements have contained union-security and checkoff
clauses, and James Ayers, a Local 486 business agent as-
signed to service the Ruegsegger bargaining unit,3 testified
that Respondent Ruegsegger regularly deducted appropriate
dues, initiation fees, and uniform assessments from the pay
of unit employees and sent such moneys to the Union in
timely fashion through November 1991.
Respondent Branch is an employee leasing firm. Its owner,
Charles Garavaglia, who also serves as its president, con-
vinced Ruegsegger’s owner, Ben Ruegsegger, and his son,
Alan Ruegsegger, during the fall of 1991, that they could
save money, principally on health insurance and workmen’s
compensation insurance, if they entered an employee leasing
contract with Respondent Branch. The parties entered such
an agreement on November 14, 1991. A copy of the agree-
ment, minus Exhibit A, was placed in the record as General
Counsel’s Exhibit 9.
The record reveals that to effectuate the agreement, all
management and unit personnel of Respondent Ruegsegger,
excluding Ben Ruegsegger who takes no salary from the
business, were simply transferred to Respondent Branch’s
payroll. Thereafter, Respondent Ruegsegger simply continued
to operate its business as normal with little, if any, inter-
1295BRANCH INTERNATIONAL SERVICES
4 G.C. Exhs. 3 and 4.
5 See G.C. Exh. 2.
6 See G.C. Exh. 2, p. 22. By a separate addendum, the parties
agreed that if the lease agreement between Branch and Ruegsegger
was terminated, the employees leased to Ruegsegger would revert
back to and become Ruegsegger’s employees.
ference or direction from Respondent Branch, i.e., Branch
handled payroll matters and Ruegsegger handled matters in-
volving the transportation of freight.
By letters dated November 14 and 15, 1991, Garavaglia
(Branch) and Ben Ruegsegger (Ruegsegger) notified Local
486’s business agent Ayers that Respondent Ruegsegger had
signed an agreement with Respondent Branch and that the
employees of Ruegsegger were to become employees of
Branch, who was to lease such employees back to
Ruegsegger.4 Both letters indicated Respondent Branch was
to accept the subsisting collective-bargaining agreement be-
tween the Union and Ruegsegger, and Garavaglia’s letter in-
vited the Union to send all further union dues statements to
Respondent Branch.
During the November 30–December 1, 1991 weekend, the
Union sponsored a strike at the Ruegsegger terminal and no
loads were successfully dispatched. The strike ended on De-
cember 2, 1991, when Respondent Ruegsegger and the
Union executed a new collective-bargaining agreement which
was to be effective from April 1, 1991, to and including
March 31, 1994.5
On December 8, 1991, Garavaglia, representing Respond-
ent Branch, met at Ruegsegger’s garage with Ruegsegger’s
drivers and owner-operators. Local 486’s secretary-treasurer,
James Bohlen, and business agent Ayers attended the meet-
ing. Garavaglia informed the employees that: they were to be
carried on Branch’s payroll; that he wanted to switch them
from Blue Cross/Blue Shield insurance to a Branch plan
which would afford them the same or better benefits; and
that Branch would obtain workmen’s compensation coverage.
The meeting lasted several hours and employees were given
the opportunity to ask questions. At the conclusion of the
meeting, the union representatives requested copies of the
Branch and Blue Cross/Blue Shield plans, indicating they
wished to compare them.
Respondent Branch became a party to the collective-bar-
gaining agreement (entered by Respondent Ruegsegger and
the Union on December 2, 1991) when Garavaglia signed the
agreement on December 31, 1991. A short addendum to the
contract reveals that Respondent Branch ‘‘accepted and
adopted’’ the agreement ‘‘as the co-employer.’’6 Bohlen
signed the addendum on December 30, 1991 (conformed
copies erroneously indicate a 12/2/92 signature date).
B. Individual Allegations
The above-described complaints allege that Respondents
violated Section 8(a)(1) and (5) and Section 8(d) of the Act
in numerous respects after they executed an employee lease
agreement on November 14, 1991. The allegations and the
evidence offered to prove or disprove them are discussed in-
dividually below.
1. The joint employer issue
The complaints allege that Respondents have been joint
employers at all times material.
The joint employer concept recognizes that two or more
business entities are in fact separate, but they share or co-
determine those matters governing the essential terms or con-
ditions of employment. Laerco Transportation, 269 NLRB
324, 325 (1984); Sun-Maid Growers of California, 239
NLRB 346 (1978), enfd. 618 F.2d 56 (9th Cir. 1980). Gen-
erally, a joint employer finding is justified where it has been
demonstrated that the employer-customers meaningfully af-
fect matters relating to the employment relationship such as
hiring, firing, discipline, supervision, direction, and deter-
mination of labor relations policies. Boire v. Greyhound
Corp., 376 U.S. 473 (1964); Browning-Ferris Industries of
Pennsylvania, 691 F.2d 1117 (3d Cir. 1982), enfg. 259
NLRB 148 (1981); Hamburg Industries, 193 NLRB 67
(1971).
In the instant case, the record reveals that, although the
lease agreement executed by the parties on November 14
provided that Branch was an ‘‘independent contractor’’ and
it was to accomplish all hiring, firing, discipline, and deter-
mination of labor policies, Ruegsegger, by Ben Ruegsegger,
acting alone, ended the November 30–December 2, 1991
strike by the Union when he executed a new collective-bar-
gaining agreement with the Union on December 2. Inspection
of the bargaining agreement reveals that it defines the work-
ing conditions and wages to be enjoyed by bargaining unit
employees during the period extending from April 1, 1991,
to March 31, 1994. Significantly, Branch became a party to
the contract when Garavaglia signed it as ‘‘co-employer’’ on
December 30, 1991.
In my view, the above facts, standing alone, establish that
Ruegsegger exercised sufficient control over the labor poli-
cies of Branch and over the wages to be paid to the employ-
ees Branch assigned to Ruegsegger to constitute Branch and
Ruegsegger joint employers.
The employee lease situation here differs from other em-
ployee lease situations as all of Ruegsegger’s management
(except Ben Ruegsegger) were transferred from Ruegsegger’s
payroll to Branch’s payroll. Thus, subsequent to the execu-
tion of the lease, supervision and direction of Ruegsegger’s
employees was accomplished by precisely the same individ-
uals who had always exercised control for Ruegsegger. Sig-
nificantly, the record reveals that, although Garavaglia may
have visited the terminal on occasion after the lease was exe-
cuted, he exercised no supervisory authority. In the same
vein, uncontested is the fact that, at times material, Branch
had no management officials other than Garavaglia.
As observed by counsel for General Counsel in his brief
(Br. 9 and 10), Ruegsegger makes and implements decisions
regarding leased or company-owned equipment without con-
sulting Branch. Thus, Alan Ruegsegger, after discussing it
with his father, issued a warning to driver William Shook for
overloading in a document captioned ‘‘Notice to Employee
of Ben Ruegsegger Trucking Services, Inc.’’ (G.C. Exh. 45.)
In sum, the instant record reveals that Ruegsegger partici-
pates meaningfully in the exercise of control over matters
governing the terms and conditions of employment of its
drivers. I find that the General Counsel has established that
the Respondents are joint employees as alleged. Syufy Enter-
prises, 220 NLRB 738 (1975); Schnabel’s Drivers for Lease,
249 NLRB 1164 (1980).
1296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. The refusal to furnish information
By letter dated November 18, 1991 (G.C. Exh. 5), Union
Business Agent Ayers requested that Branch supply the
Union with a copy of its agreement with Ruegsegger. On
November 21, Branch President Garavaglia sent the Union a
sample employee lease agreement. On November 27, the
Union requested that Ruegsegger supply it with a copy of its
contract with Branch, together with ‘‘all amendments, riders,
memorandums or the like.’’ (G.C. Exh. 8.) On December 4,
Alan Ruegsegger handed Business Agent Ayers a copy of the
lease agreement executed November 14, minus ‘‘Exhibit A,’’
which was referred to in the body of the agreement (G.C.
Exh. 9). By letter to Ruegsegger dated December 5, the
Union requested that it be provided with a copy of ‘‘Exhibit
A’’ to the November 14 lease. Ruegsegger did not respond
to the Union’s December 5 letter, and, on December 16, the
Union sent Branch a letter which, inter alia, requested a copy
of ‘‘Exhibit A,’’ and/or ‘‘information which details the basis
on which your company is paid by Ruegsegger Trucking.’’
Ayers testified that Garavaglia responded to his December 16
request by informing him by letter, inter alia, ‘‘you are not
entitled by either federal law or the NLRB Act as it relates
to the financial arrangement between my customer and
Branch International Services, Inc.’’ On July 29, 1992, after
Garavaglia and union representatives met in an attempt to
settle this case, Garavaglia sent James Bohlen a copy of
‘‘Exhibit A.’’ The body of the document, which was placed
in the record as Respondent’s Exhibit 9, is as follows:
Lessee shall pay Lessor for services rendered pursu-
ant to the Agreement for drivers, dock employees, of-
fice clerical and/or management.
The Lessee shall pay the Lessor the fee of llll
for each:
Driver
Office
Mechanic
The Lessee shall pay to the Lessor all direct costs as
follows:
1. Federal, state and local income taxes
2. Social Security taxes
3. Workmen’s Compensation costs
4. Wages
5. Medical Premiums (if applicable)
6. Vacation and Holiday pay (if applicable)
7. llllllllllllllllll
Lessee shall pay Lessor the above items as billed on
a weekly basis. Lessee shall pay Lessor no later than
Friday of the week payroll is received.
Union Business Agent Ayers testified that the Union need-
ed Exhibit A to the November 14, 1991 lease because it
needed to know the financial arrangement between Respond-
ents so it could ascertain whether Branch was a successor
employer or a payroll agent for Ruegsegger, it needed to
know how the arrangement would affect its members, and it
needed to know if Branch/Garavaglia had the financial abil-
ity to meet his contractual obligations as a coemployer.
It is well settled that an employer has a statutory obliga-
tion to provide, on request, relevant information the union
needs for the proper performance of its duties as a collective-
bargaining representative. NLRB v. Truitt Mfg. Co., 351 U.S.
149, 152 (1956); NLRB v. Acme Industrial Co., 385 U.S.
432, 435–436 (1967); Detroit Edison Co. v. NLRB, 440 U.S.
301 (1979).
Where the union’s request is for information pertaining to
employees in the bargaining unit, that information is pre-
sumptively relevant. However, where a union has requested
information with respect to matters occurring outside the bar-
gaining unit, the burden is on the union to demonstrate that
the information is relevant. Pfizer, Inc., 268 NLRB 916
(1984), enfd. 736 F.2d 887 (7th Cir. 1985); Ohio Power Co.,
216 NLRB 987 (1975), enfd. mem. 531 F.2d 1381 (6th Cir.
1976). In either situation, the standard for relevancy is the
same: ‘‘a liberal discovery-type standard.’’ Acme Industrial,
supra, 385 U.S. at 437.
The Union’s request in this case was partially satisfied
when Alan Ruegsegger delivered a copy of the lease agree-
ment, minus Exhibit A, to Ayers on December 4, 1991. As
revealed above, however, both Respondents failed and re-
fused, despite repeated requests to furnish the Union with
Exhibit A to the lease, until Garavaglia mailed it to Sec-
retary-Treasurer James Bohlen on July 29, 1992.
Inspection of Exhibit A to the lease causes me to conclude
that it defined to a considerable extent the actual relationship
which existed between Ruegsegger and Branch and the bar-
gaining unit employees. I find that Exhibit A contained rel-
evant information which had properly been requested by the
Union to enable it to perform its representation functions. By
failing and refusing to furnish the information from Novem-
ber 18, 1991, until July 29, 1992, I find that Respondents
violated Section 8(a)(1) and (5) of the Act as alleged.
3. The signing of new employment applications
On December 26, 1991, Branch attached a notice, the
body of which is as follows, to the paychecks of bargaining
unit employees.
Attached to your paycheck is an application, I–9 and
W–4 which must be completed. Federal law requires
the company to have this information on record. Unfor-
tunately, if I don’t have them back by Friday, January
3, 1992, I will not be able to pay you.
The complaint alleges, and the General Counsel contends,
that Branch took the described action without giving notice
to the Union or affording it an opportunity to bargain over
the matter.
Garavaglia testified that, within several days of December
8, 1991 (date of meeting at terminal), Union Secretary-Treas-
urer James Bohlen telephoned him during a weekend to ad-
vise that Business Agent Ayers had checked out Branch’s
medical plan and it looked like there were some deficiencies.
At the conclusion of their conversation, Garavaglia contends
he told Bohlen he needed some applications, I–9s and W–
4s, filled out. He further indicated that Bohlen asked what
an I–9 was, and indicated that after he explained it had to
do with aliens, the conversation was as follows (Tr. 638):
I asked him I would need up to date W–4’s because
in reality the government says you’re supposed to get
a new W–4 every year.
1297BRANCH INTERNATIONAL SERVICES
I asked him to have an application filled out and I
said, more importantly, to give any change of status be-
cause of marriages, divorces, widows, children, addi-
tions, deletions, change of addresses and I said, specifi-
cally, having only the information I would get from
Ruegsegger could affectuate any workmen’s comp ben-
efit that a person who would be injured could be af-
fected by.
And I said, also, as you probably know, Jim, you’ve
been in the trucking industry for many years, you know
the DOT not only checks the carrier but if they’re using
a personnel agency they have the responsibility to come
check our records to make sure they meet the standards
of the DOT for physicals up to date, I–9’s up to date,
applications up to date.
He agreed, he says, okay, fine. When you agree to
sign the contract and we get this all done I’ll tell the
employees to fill out these papers.
During the presentation of its defense, Respondent Branch
called Bohlen as its witness. When Bohlen was asked if he
and Garavaglia had a discussion relating to the employees’
filling out applications, I–9s and W–2s prior to signing the
contract, Bohlen replied: ‘‘I think that was discussed in the
meeting at Ruegsegger’s.’’ He was then asked: ‘‘And what
was your position, if and when those could be done?’’ He
replied: ‘‘Well, we were going back and consult with coun-
sel, which we did . . . . We were advised not to sign.’’
Bohlen failed to indicate when, if ever, the Union informed
Branch that legal counsel had advised against signing the
documents Garavaglia wanted employees to complete.
During presentation of his case, counsel for the General
Counsel sought to prove the alleged application violation by
causing Ayers to testify that he first learned that Branch was
requiring employees to complete new job applications when
an employee gave him a copy of the December 26 memo on
December 28. Ayers then claimed the Union had received no
advance notice and that it was not afforded an opportunity
to bargain.
I credit Garavaglia’s claim that he discussed the need for
obtaining applications, I–9s and W–4s with Bohlen and I
credit his claim that Bohlen at least intimated that he would
tell the employees to execute such documents for Garavaglia
after Branch became signatory to the bargaining agreement.
In sum, I find the Union was given advance notice of Re-
spondent Branch’s intention to cause unit employees to com-
plete new employment applications, I–9s and W–4s. I further
find that the Union was afforded an opportunity to bargain
with Branch over the matter. In the circumstances described,
I find that the General Counsel has failed to prove that Re-
spondents violated Section 8(a)(5) of the Act by unilaterally
requiring employees to submit new applications without no-
tice to or bargaining with the Union.
4. Substitution of medical plan
The name of Respondent Branch’s medical plan is B.I.S.,
Inc. health care plan. It is a self-funded plan which is admin-
istered by Ameri-Plan, Inc. John Burghardt, the president of
Ameri-Plan indicated during his testimony that, under the
terms of the plan, Branch assumes all the risk to a threshold
of $25,000 and a reinsurance agreement with an insurance
company pays for amounts of individual claims which ex-
ceed $25,000. The plan was placed in the record as General
Counsel’s Exhibit 16(A), and the directory of preferred pro-
viders is in the record as General Counsel’s Exhibit 16(B).
As indicated, supra, Branch and/or Garavaglia convinced
Ruegsegger principals that they should enter the November
14 employee lease agreement with Branch because such ac-
tion would permit them to save money on their health and
workmen’s compensation insurance.
When Ruegsegger and the Union executed the above-de-
scribed collective-bargaining agreement on December 2,
1991, article 17 of that contract entitled ‘‘Insurance and Pen-
sion’’ provided, inter alia:
Section 1. The Company agrees to provide and main-
tain a hospitalization and surgical plan for all company
drivers, and their eligible dependents, at no cost to the
employee, the plan being with Blue Cross/Blue Shield.
Also the Company will provide one hundred fifty dol-
lars ($150.00) per week sickness and accident, first
(1st) day accident and eighth (8th) day illness, for thir-
teen (13) weeks at no cost to employees.
The Company further agrees to make said Blue
Cross/Blue Shield plan available to all brokers, it being
understood should a broker choose to take advantage of
the plan he agrees to pay for the plan at the cost that
the Employer would normally pay for other employees,
by owning equipment they must pay their own health
insurance.
At or about the time the December 8 meeting with em-
ployees was held at Ruegsegger’s garage, the Union was
given a copy of the B.I.S., Inc. health plan. Union Business
Agent Ayers testified the Union compared the plan to the ex-
isting Blue Cross/Blue Shield plan and noted the following
deficiencies:
1. TMS (jaw disfunction) excluded.
2. One year waiting period for pre-existing condi-
tions.
3. Aids and aids related illnesses excluded.
4. Not covered by Michigan State Insurance Regula-
tions.
5. Limited access to plan as limited list of providers.
6. $10,000 mental and nervous lifetime limit while
Blue Cross/Blue Shield is $30,000.
7. Blue Cross/Blue Shield universally accepted while
Branch isn’t.
8. Plan is self-funded and stability depends on cash
flow of insurer.
Several days after the December 8 meeting, Bohlen told
Garavaglia that Ayers had concluded there were some defi-
ciencies in the B.I.S., Inc. plan. On December 16, Ayers sent
Ruegsegger a letter, the body of which states (G.C. Exh. 17):
Please be advised that an indepth study of the pro-
posed ‘‘B.I.S. Health Care Plan’’ has been conducted.
Our study revealed many areas where this plan is sub-
standard to the Blue Cross/Blue Shield plan which is
currently in effect.
It is the position of Local 486 that the Company
maintain the current health care plan which is defined
1298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 A copy of the 1991–1994 collective-bargaining agreement was
placed in the record as G.C. Exh. 2. Inspection of the document re-
veals it contains two p. 22’s. One p. 22 indicates James Bohlen ac-
cepted Branch International Services, Inc. as a signatory to the con-
tract on 12/30/91. Bohlen testified he signed on that date. The sec-
ond p. 22 places the date of Bohlen’s acceptance signature as
12/3/92. Bohlen testified someone erroneously placed that date on
the document. Respondent Branch contends the Union did not accept
Branch as a coemployer signatory until 12/3/92. I find the contention
to be without merit.
in Article 17 of the collective bargaining agreement as
Blue Cross/Blue Shield.
Please also accept this notification as a formal re-
quest by Local 486 concerning the legal definition of
the relationship between Ruegsegger Trucking Service,
Inc. and Branch International Services, Inc. If Branch
is a successor employer, as Mr. Garavaglia has stated,
please so notify. If Branch International Services, Inc.
is not a successor employer, please indicate, as re-
quested above, what their relationship is.
Thanking you in advance for your anticipated co-
operation.
After Bohlen told Garavaglia the B.I.S. plan was deficient
in some respects, Garavaglia informed Bohlen he would take
appropriate action to assure that the B.I.S., Inc. plan met or
exceeded the Blue Cross/Blue Shield plan then in effect at
Ruegsegger in every respect. Garavaglia thereafter caused
John Burghardt, the president of Ameri-Plan, the adminis-
trator of the B.I.S., Inc. plan to send Bohlen a letter which
states, inter alia (G.C. Exh. 18):
This is to certify that Branch International Service,
Inc.’s insurance meets or exceeds the present Blue
Cross plan at Ben Ruegsegger Trucking Services, Inc.
This will also certify our company will authorize for
payment any claims that would be covered under
present Blue Cross Program in effect.
If you have any questions, or need additional infor-
mation, please call.
On December 19, Ayers sent Ruegsegger an information
packet concerning self-funded insurance programs via letter
which states (G.C. Exh. 19):
In conjunction with our recent telephone conversa-
tion, please find enclosed an information packet con-
cerning self-funded insurance programs.
As you will see, there are several pages of questions
to ask in order to properly compare the proposed B.I.S.
plan to the Blue Cross/Blue Shield plan currently in ef-
fect.
I hope this will help you in your efforts and hope-
fully you will conclude that switching to a self-funded
program, even if it were contractually permissible,
would appear to be very risky at best.
In closing, I wish you and your family a happy holi-
day season and as always, feel free to contact me if you
have any questions.
As noted, supra, Garavaglia, acting on behalf of Branch,
signed the collective-bargaining agreement which had been
entered by Ruegsegger and the Union on December 2, 1991,
on December 31, 1991. Branch was designated to be the co-
employer of the employees covered by the contract. Signifi-
cantly, Garavaglia accepted the contract ‘‘as is.’’
Garavaglia testified that during the period extending from
November 14 to December 31, 1991, he had expressed to
Bohlen the fact that it was necessary that they work out the
medical insurance before he could sign the subsisting collec-
tive-bargaining agreement. Bohlen indicated during his testi-
mony that Garavaglia may have made such a comment to
him at some time, but he claims that the Union never agreed
that the B.I.S., Inc. plan could be substituted for the Blue
Cross/Blue Shield plan. His claim was corroborated by
Ayers.
On January 27, 1992, the Respondents substituted the
B.I.S., Inc. plan for the Blue Cross/Blue Shield plan then in
effect at the Ruegsegger operation. No evidence was offered
to show that employees suffered adverse consequences as a
result of the substitution to date.
Respondents defend their substitution of the B.I.S. plan for
the Blue Cross/Blue Shield plan by contenting that
Garavaglia indicated before he signed the collective-bargain-
ing agreement on Branch’s behalf, that Branch conditioned
its acceptance of the contract on the ability of the parties to
reach agreement on the medical insurance matter. Respond-
ents argue that agreement on the switch of plans was reached
when Branch rectified the Union’s complaint that the cov-
erages were not equal by guaranteeing that Branch’s plan
would cover everything that the Blue Cross/Blue Shield plan
had covered.
The difficulty with Respondents’ contention is that it
failed to show that the Union agreed to the substitution of
plans if Branch would assure it that the coverages under the
B.I.S., Inc. plan would be equal to or better than those af-
forded under the Blue Cross/Blue Shield plan. To the con-
trary, as evidenced by Ayers’ above-described correspond-
ence with Ruegsegger, the Union steadfastly objected to sub-
stitution of Branch’s self-funded plan for the commercial
Blue Cross/Blue Shield plan. Additionally, I note that Re-
spondents advance no claim that agreement was reached by
the parties to amend or to strike article 17, section 1 from
the subsisting collective-bargaining agreement. That provi-
sion clearly dictated that the Blue Cross/Blue Shield plan be
maintained by the Respondents.7
In sum, it is clear that even though the subsisting collec-
tive-bargaining agreement expressly required Respondents to
maintain a specified Blue Cross/Blue Shield health plan dur-
ing the term of the agreement, Respondents, over the objec-
tion of the Union, substituted the self-funded B.I.S., Inc. plan
for the Blue Cross/Blue Shield plan on January 27, 1992. By
engaging in such action, I find that Respondents violated
Section 8(a)(1) and (5) and Section 8(d) of the Act as al-
leged. Connecticut Light & Power Co., 196 NLRB 967, 969
(1972); Golconda Corp., 194 NLRB 609, 614 (1971).
5. The alleged checkoff-related violations
Article 1, section 3 of the subsisting collective-bargaining
agreement is as follows:
Section 3. CHECK-OFF: The employer agrees to de-
duct from the pay of all employees covered by this
Agreement the dues, initiation fees and/or uniform as-
sessments of the Local Union and agrees to remit to
1299BRANCH INTERNATIONAL SERVICES
said Local Union all such deductions prior to the end
of the month for which the deduction is made. Where
laws require written authorization by the employee, the
same is to be furnished in the form required.
The Local Union shall certify to the Employer in
writing each month a list of its members working for
the Employer who have furnished to the Employer the
required authorization, together with an itemized state-
ment of dues, initiation fees (full or installment), or uni-
form assessments owed and to be deducted for such
month from the pay of such member, and the Employer
shall deduct such amount from the first (1st) paycheck
following receipt of statement of certification of the
member and remit to the Local Union in (1) one lump
sum. The Employer shall add to the list submitted by
the Local Union the names of all regular new employ-
ees hired since the last list was submitted and delete the
names of employees who are no longer employed.
Where an employee who is on check-off is not on
the payroll during the week in which deduction is to be
made or has no earnings or insufficient earnings during
that week or is on leave of absence, the employee must
make arrangements with the Local Union to pay such
dues in advance.
The Employer will recognize authorization for de-
ductions from wages, if in compliance with state law,
to be transmitted to the Local Union or to such other
organizations as the Union may request if mutually
agreed to. No such authorization shall be recognized if
in violation of state or federal law. No deduction shall
be made which is prohibited by applicable law.
In addition to containing the above-quoted checkoff clause,
the present agreement contains a union-shop clause which re-
quires membership in the Union within 31 days of the time
an individual is hired. Ayers indicated that as new employees
are hired by Ruegsegger, a business agent or the steward will
uniformly require such employees to execute a dues-checkoff
authorization. The original is given to the employer and a
yellow copy is retained by the Union. The monthly billing
statement referred to in paragraph 2 of the checkoff clause
is mailed to the employer by the 3d or 4th of the month,
with the expectation that appropriate dues and other moneys
will be received by the Union by the 15th of each month.
It is undisputed that Ruegsegger uniformly deducted and re-
mitted dues and other moneys through November 1991. The
parties stipulated that union dues deducted from the pay of
employees by Respondents during the months of December
1991 and January through April 1992 were not remitted to
the Union but were, instead, returned to the employees.
In December 1991 and January 1992, the Union submitted
checkoff billing statements to Respondent Branch. Branch
deducted the appropriate moneys from the pay of employees
but refused to remit such moneys to the Union. It indicated
in a letter to the Union dated January 13, 1992, inter alia,
that it was refusing to remit because the statements contained
Ben Ruegsegger’s name although Branch was the employer;
and that the moneys due the Union would be escrowed until
the Union lived up to its agreement to cause employees to
complete applications, 1–9s and W–4s (G.C. Exh. 23).
On February 4, 1992, the Union sent a checkoff billing
statement to Branch which contained the names of both
Ruegsegger and Branch. By letter dated February 11, 1992,
Branch informed the Union it would not forward payments
until it received original checkoff for dues (authorizations).
Ayers credibly testified that he responded by contacting
Garavaglia and advising him that Ruegsegger rather than the
Union had the original checkoff authorizations and he should
obtain them from Ruegsegger’s office manager Lynn
McNally. Alan Ruegsegger testified that when Ayers asked
him about the checkoff authorizations, he told Ayers he
could not find them. Although the Union had retained the
yellow copies of most of the authorizations executed before
Branch entered the picture, those documents, which were
placed in evidence as General Counsel’s Exhibit 42, were not
sent to Branch.
By letter dated April 2, 1992, Branch informed the Union,
inter alia, that if it did not receive the signed authorizations
by April 8, 1992, it would return union dues deducted from
employees’ pay to them. Thereafter, on April 8, 1992, Re-
spondents distributed a document to all bargaining unit em-
ployees, the body of which was as follows (G.C. Exh. 30):
You will note on your pay check additional money
returned to you for the Union Dues that have been de-
ducted.
Your Union refuses to turn in signed original Check-
Off authorization as required in the Contract signed by
the Company with them. Because of that language and
the State of Michigan requiring written authorization
for any deductions from your pay check, I have re-
turned this amount to you.
You may pay the money direct or you can sign
below that you want the Company to deduct said
amount and forward it to the Union. Do what you want,
it is your choice.
CHECK ONE, SIGN AND RETURN
[ ] I do want you to deduct any Union Dues and for-
ward said money to Teamsters Local 486.
[ ] I do not want you to deduct any Union dues from
my pay. If I decide to pay said dues, I will handle this
myself.
lllllllll lllllllll
Date Signature
This notice must be returned to the Company within
(7) days by mail or you can turn the notice into the
Customer, Ben Ruegsegger, and he will forward the no-
tice to the Company.
If you do not return the notice, no monies will be
deducted.
Four employees (Arnold, Wood, Orchard, and McGowan)
signed forms indicating they did want Branch to deduct their
union dues and send them to the Union. Several employees,
including Whitney and Dubiel, signed forms indicating they
did not want union dues deducted from their pay. Since May
7, 1992, Branch has deducted and remitted to the Union dues
for only the four employees named above and other employ-
ees who have furnished it with a current dues-checkoff au-
thorization.
By letter dated April 10, 1992, the Union advised both Re-
spondents, inter alia, that Ruegsegger had signed checkoff
1300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
authorizations executed when it alone was the employer, that
the actions of Respondents were considered to be unlawful,
and that the affected members had the right to strike even
though the contract contained a no-strike clause.
After causing unit employees to indicate on the April 8,
1992 memo whether they wanted union dues deducted from
their pay, Respondent Branch remitted the dues in the
amount of $480 to the Union for four employees on or about
May 7, 1992. From that date forward, Branch has deducted
dues from the pay of only those employees who have pro-
vided it with a dues-checkoff authorization containing a date
on or after April 8, 1992. When returning the Union’s check-
off billing statements to it together with moneys checked off,
it has stated after the names of most employee-members that
it had ‘‘No Authorization.’’ (See, for example, G.C. Exh.
35.)
By letter dated April 15, 1992, Garavaglia sought justifica-
tion for his refusal to abide by article 1, section 3 of the sub-
sisting contract by seeking to cause the Michigan Department
of Labor, Wage, and Hour Division to advise him he could
not lawfully deduct union dues from the pay of employees.
By contending in his letter that the contract provided ‘‘that
the Union must supply checkoff Authorization,’’ but had re-
fused to do so, Garavaglia received a letter from Harold
Lewis, review investigator for the Detroit Office of the
Michigan Department of Labor, which stated, inter alia (G.C.
Exh. 34):
Section 7 of Act 390, P.A. 1978 requires express
written authorization for employers to make deductions
from wages which are not specifically required by law
or by a Collective Bargaining Agreement. If the lan-
guage of the subject Collective Bargaining Agreement
does not allow union dues deductions without a check-
off authorization from either the union or the effective
employees, then such deductions would violate Act
390.
Might I suggest contacting the National Labor Rela-
tions Board—(313) 226–3200 regarding the union’s
failure to provide the required authorization.
When Lewis appeared as a witness in the instant case, and
was more fully appraised of the facts surrounding the Re-
spondents’ refusal to abide by article 1, section 3 of the cur-
rent agreement, he was unable to voice any opinion which
would assist me in resolving the issues presented.
The facts enumerated above reveal quite clearly that Re-
spondents repudiated the collective-bargaining agreement
during December 1991 and January 1992 because the Union
had failed to assist Branch in its efforts to cause employees
to complete applications, 1–9s and W–4s. Lack of checkoff
authorizations was not assigned as a reason for the failure to
abide by article 1, section 3 of the agreement until mid-Feb-
ruary 1992.
With specific regard to dues-checkoff authorizations,
Ayers’ testimony, the yellow copies of authorizations exe-
cuted by employees of Ruegsegger prior to December 1991,
and Ruegsegger’s regular remittance of dues checked off
prior to December 1991 cause me to conclude that an infer-
ence is warranted that the Union provided Ruegsegger with
white copies of checkoff authorizations executed by em-
ployee-members listed on the Union’s December 1991
through April 1992 checkoff billing statements prior to De-
cember 1991. Although Alan Ruegsegger claimed during the
hearing that he could not find the authorizations in February
1992, he did not deny that he had received them as they
were executed.
Although Ruegsegger was legally and contractually obli-
gated, before Branch signed the collective-bargaining agree-
ment, to check off dues of its drivers and remit them to the
Union, Respondents claim that legal and contractual obliga-
tion disappeared when Branch signed as coemployer, asked
that the Union’s checkoff billing statements he sent to it, and
demanded that the Union obtain new checkoff authorizations
naming Branch rather than Ruegsegger as the employer. Re-
spondent Branch’s liability under the Act cannot be consid-
ered separate and apart from that of Ruegsegger. As joint
employers, each is responsible for the conduct of the other.
Ref-Chem Co., 169 NLRB 376, 380 (1968). Patently, Re-
spondent Ruegsegger did not have the legal or contractual
right during the period under discussion to require that the
Union obtain new checkoff authorizations from employee-
members. By becoming a coemployer with Ruegsegger,
Branch’s rights and obligations flowing from the collective-
bargaining agreement were precisely the same as those of
Ruegsegger. In short, Respondents had no lawful right to re-
quire that the Union obtain new dues-checkoff authorizations
from employee-members.
It is well established that the remittance of union dues is
a mandatory subject of bargaining under the Act. Stevens &
Associates Construction Co., 307 NLRB 1403 (1992); Inter-
national Distribution Centers, 281 NLRB 742 (1986). It is
equally well established that an employer which is a party
to an existing collective-bargaining agreement refuses to bar-
gain collectively within the meaning of Section 8(d) in viola-
tion of Section 8(a)(5) of the Act when it modifies the terms
and conditions of employment established by that agreement
without obtaining the consent of the Union. Stevens & Asso-
ciates Construction Co., supra.
Here, Respondents checked off dues from the pay of em-
ployees during the period December 1991 through April
1992 but failed to abide by the terms of article 1, section 3
of the contract by refusing to remit the appropriate moneys
to the Union. It offered no legally cognizable reason for such
action. By engaging in such conduct, I find Respondents vio-
lated Section 8(a)(5) and Section 8(d) of the Act as alleged.
Moreover, by engaging in direct dealing with unit employees
when it caused them to execute the April 8, 1992 memos de-
scribed above, and by thereafter failing to honor dues-check-
off authorizations of employees which were executed prior to
the time Respondent Branch signed the collective-bargaining
agreement as coemployer on December 31, 1991, I find Re-
spondents violated Section 8(a)(1) and (5) and Section 8(d)
of the Act. Rapid Fur Dressing, 278 NLRB 905, 906 (1986);
General Split Corp., 284 NLRB 418 (1987); Krolicki Whole-
sale Meats, 270 NLRB 941 (1984).
6. The April 17, 1992 memo
Article 23, section 4(f) of the subsisting collective-bargain-
ing agreement provides:
(f) All available Loads to be dispatched at 3 p.m.
daily, with available members either at home or in the
yard, seniority being the determining factor.
1301BRANCH INTERNATIONAL SERVICES
8 The run was about 500 miles. Under DOT regulations, a driver
must rest for 8 hours after driving 10 hours. DOT allows 500 miles
in 10 hours.
At some time after the subsisting agreement was executed on
December 2, 1991, Respondent Ruegsegger obtained a cus-
tomer who shipped commodities from Bay City, Michigan,
to Ginnesburg, Pennsylvania. Alan Ruegsegger credibly testi-
fied that several drivers complained that with the dispatch of
the run at 3 p.m. they could not make the run on time, it
was unsafe, and they would have to drive excess hours to
make it.8 Alan Ruegsegger explained the situation to Larry
Picket, the union steward at the terminal, suggesting that the
run be dispatched at 10 a.m. for the reasons indicated. Picket
agreed there was a valid safety concern about the run and
Ruegsegger thereafter prepared a notice of dispatch time
change for the Pennsylvania run which was placed in the
record as General Counsel’s Exhibit 37. The memo which is
dated April 17, 1992, states:
NOTICE TO EMPLOYEES
DISPATCH PA
The Pa’s will now be dispatched at 10:00 AM in the
morning. [Y]ou have to be available to leave at Noon.
This is due to safety reasons.
DOW CHEMICAL BAY CITY
Due to the accident out to Dow Chemical on April
16, 1992 we feel that Dow’s will be enforcing their
rules on the complex. (stop at stop signs, slow down
obey the speed limit, etc.)
LOCAL 486
Due to the letters that the employees of Branch Inter-
national received from Local 486, we feel that this is
not a matter for Ruegsegger’s or the employees of
Branch International to get involved into. Due to a
hearing scheduled (Case # 7–CA–32902 July 15, 1992)
for all these matters, we feel Branch International &
Local 486 can agree to things in court. Things have not
really changed only that you receive a check from your
New Employer Branch International. Local 486 is hav-
ing the problem understanding this. Also at this time we
would like to let you know if certain actions are taken
that the Employees will have to suffer the consequence.
[Emphasis added.]
ALAN
Ruegsegger testified, without contradiction, that Picket ap-
proved language concerning dispatching the PA load at 10
a.m. after he lined out a portion of the verbiage. Picket and
Ruegsegger agreed that Picket said a copy of the memo
should be sent to Ayers. A copy was sent to Ayers and when
Ruegsegger discussed the matter with him, Ayers asked if he
had negotiated the change (in the contract) with Larry. When
Ruegsegger indicated he had not negotiated, but he had dis-
cussed the safety reasons for moving it with Picket, Ayers
told him he could not do it; that he would file charges.
When the Union’s secretary-treasurer, Bohlen, appeared to
testify, he indicated at one point (Tr. 387) that a steward
could agree to a dispatch change in situations like the one
under discussion, but he added he would normally check
with the business agent first. Later, Bohlen testified a union
steward could not negotiate a change in the language of the
contract.
The complaint alleges, and General Counsel contends, that
by changing the dispatch time on the above-described run
from 3 p.m. to 10 a.m., and by issuing the April 17 memo
which indicated that ‘‘if certain actions are taken that the
Employees will have to suffer the consequences,’’ Respond-
ents violated Section 8(a)(1) and (5) of the Act.
The record reveals that Union Steward Picket attended the
negotiations which led to execution of the most recent agree-
ment by Respondent Ruegsegger and the Union on Decem-
ber 2, 1991. Noting that Alan Ruegsegger discussed the need
for the change in the dispatch time of the Pennsylvania load
with Picket; that Picket suggested alteration in the language
Ruegsegger originally intended to use to announce the
change; and considering Bohlen’s admission that a steward
could agree to a dispatch time change in a situation such as
the one under discussion, I find that General Counsel has
failed to prove that Respondents acted unilaterally and with-
out the agreement of the Union when changing the dispatch
time of the Pennsylvania run.
With respect to the contention that Respondents threatened
employees with unspecified reprisals by stating in the memo
under discussion that ‘‘if certain action are taken that the
Employees will have to suffer the consequence,’’ Alan
Ruegsegger testified that he placed the remark in the memo
to respond to that portion of the Union’s April 10, 1992 let-
ter which indicated that members affected by Respondent’s
refusal to deduct and remit dues ‘‘had the right to strike even
though the contract contained a no-strike clause.’’ In my
view, the remark under discussion, standing alone, is too
general and ambiguous to constitute a threat of reprisal as al-
leged.
CONCLUSIONS OF LAW
1. Branch International Services, Inc. and Ben Ruegsegger
Trucking Services, Inc. constitute a joint employer and joint-
ly and individually they are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all times material to this proceeding, International
Brotherhood of Teamsters, Local 486, AFL–CIO has been
the exclusive collective-bargaining representative of employ-
ees in the following unit:
All company drivers and owner/operators (drivers) em-
ployed by Respondents at or out of Respondent’s
Ruegsegger’s 1754 Chip Road, Kawawlin, Michigan fa-
cility, but excluding mechanics, guards, and supervisors
as defined in the Act.
4. By unilaterally substituting the B.I.S. Inc. health plan
for the contractually required Blue Cross/Blue Shield plan;
by failing and refusing to furnish the Union with relevant in-
formation which was necessary to permit it to perform its
representative functions; refusing to honor the checkoff pro-
visions of the current bargaining agreement (art. 1, sec. 3)
from December 1, 1991 forward; and by dealing directly
with employees by causing them to elect whether union dues
1302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
would be deducted from their pay and be remitted to the
Union, although they had previously executed checkoff au-
thorizations, Respondents engaged in conduct which is viola-
tive of Section 8(a)(1) and (5) and Section 8(d) of the Act.
5. Respondents did not otherwise violate the Act as al-
leged.
REMEDY
Having found that the Respondents have engaged in cer-
tain unfair labor practices, I shall recommend that they cease
and desist and take certain affirmative action designed to ef-
fectuate the policies of the Act.
Having found that Respondents unlawfully substituted the
B.I.S., Inc. health plan for the contractually required Blue
Cross/Blue Shield plan, I will recommend they restore the
status quo ante by immediately providing unit employees
with the Blue Cross/Blue Shield plan required by the agree-
ment, reimbursing employees for all damages suffered, if
any, as a result of the unlawful substitution, with interest as
provided in New Horizons for the Retarded, 283 NLRB 1173
(1987). Having found that Respondents have unlawfully
failed to honor and abide by article 1, section 3 of the agree-
ment since December 1, 1991, and that they unlawfully
caused unit employees to elect whether union dues were to
be deducted from their pay and remitted to the Union on
April 8, 1992, despite the fact that such employees were then
signatory to valid dues-checkoff authorizations, I shall rec-
ommend that Respondents be required to reimburse the
Union for any monetary losses it sustained as a result of Re-
spondent’s unlawful conduct. Kraft Plumbing & Heating,
252 NLRB 891 (1980).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondents, joint employers Branch International
Services, Inc., Auburn Hills, Michigan, and Ben Ruegsegger
Trucking Service, Inc., Kawkawlin, Michigan, their officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Bypassing the Union and dealing directly with employ-
ees by unilaterally permitting employees to decide whether
union dues, initiation fees, and uniform assessments will be
deducted from their pay and be remitted to the Union with-
out regard to whether such employees are signatory to valid
checkoff authorizations.
(b) Substituting the B.I.S., Inc. health plan for the contrac-
tually required Blue Cross/Blue Shield plan.
(c) Refusing to honor and abide by the checkoff provisions
contained in article 1, section 3 of the collective-bargaining
agreement.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Provide bargaining unit employees with the Blue
Cross/Blue Shield health coverage required by the current
collective-bargaining agreement.
(b) Reimburse the Union for monetary damages it sus-
tained as a result of the refusal to honor and abide by article
1, section 3 of the contract since December 1, 1991, and as
a result of Respondents’ April 8, 1992 action which caused
employees to elect whether union dues, initiation fees, and
uniform assessments would be deducted from their pay and
be remitted to the Union without regard to whether such em-
ployees were signatory to valid checkoff authorizations.
(c) Reimburse unit employees for any losses they sus-
tained, if any, as a result of the substitution of the B.I.S., Inc.
health plan for the contractually required Blue Cross/Blue
Shield health plan, with interest.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its 1754 Chip Road, Kawawlin, Michigan facil-
ity copies of the attached notice marked ‘‘Appendix.’’10
Copies of the notice, on forms provided by the Regional Di-
rector for Region 7, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.