Bulkmatic Transport Co.

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 621 (N.L.R.B. 2003)

BULKMATIC TRANSPORT CO. 621
Bulkmatic Transport Company and Local Union No.
407 a/w the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Case 8–CA–33405
September 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND WALSH
On October 25, 2002, Administrative Law Judge Mar-
garet G. Brakebusch issued the attached bench decision,
supplemented by a written certification and Order dated
November 29, 2002. The Respondent filed exceptions
and a supporting brief, and the General Counsel filed an
answering 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 briefs and has decided to
affirm the judge’s rulings,1 findings, and conclusions and
to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Bulkmatic Transport Com-
pany, Cleveland, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

1 We agree with the judge that the Respondent violated Sec. 8(a)(5)
and (1) of the Act by ceasing to deduct and remit dues to the Union
upon expiration of the rider agreement but before the expiration of the
master agreement. The rider agreement, which contained articles relat-
ing to matters such as wages, and health and welfare and pension bene-
fits, expired April 30, 2002. The master agreement, which contained the
dues-checkoff obligation and provisions pertaining to union security,
among other things, expired March 31, 2003. We find the parties in-
tended that the provisions of the two agreements would expire at differ-
ent times, and that the separate expiration dates were not inconsistent
clauses in the collective-bargaining agreements. We do not rely upon
the judge’s conclusion that the master agreement contained substantial
terms and thus would be a contract bar. Rather, we rely upon the fact
that the master agreement contained the checkoff clause, and thus the
expiration date of that contract governed the termination date for
checkoff.
Member Liebman dissented in Hacienda Resort Hotel & Casino,
331 NLRB 665 (2000), vacated sub nom. Local Executive Board of Las
Vegas Culinary Workers Local 226 v. NLRB, 309 F.3d 578 (9th Cir.
2002), relied on by the judge. However, she and Member Walsh find it
unnecessary here to reach the issue decided in that case.
2 We shall substitute a new notice to conform to the judge’s Order.
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to deduct and remit to
the Union the union dues required by the Master Freight
Agreement and Central States Truckload and Steel Sup-
plement Agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days of the date of the Board’s
Order, begin deducting and remitting to the Union dues
owed to the Union as required under the terms of the
1998–2003 Master Freight Agreement and Central States
Truckload and Steel Supplement Agreement and WE
WILL reimburse the Union for the losses resulting from
our failure to deduct and remit union dues since May 1,
2002.
BULKMATIC TRANSPORT CO.

Nancy Rrecko, Esq., for the General Counsel.
Brian W. Easley, Esq. and Andrew Szot, Esq., for the Respon-
dent.
Diana S. Brown, Esq., for the Charging Party.
SUPPLEMENT TO BENCH DECISION
STATEMENT OF THE CASE
MARGARET G. BRAKEBUSCH, Administrative Law
Judge. I heard this matter at Cleveland, Ohio, on October 24
and 25, 2002. At the close of evidence and argument, I delivered
a bench decision pursuant to Section 102.25 (a)(10) of the
Board’s Rules and Regulations, finding that the Company had
engaged in certain unfair labor practices. Specifically, I found
that the Company has engaged in violations of 29 U.S.C. §158
(a)(1) and (5). This certification of that Bench Decision, along
with the order that appears below, triggers the time period for
filing an appeal (exceptions) to the National Labor Relations
Board.
For the reasons stated by me on the record at the close of the
trial, and by virtue of the prima facie case established by the
General Counsel, I found that Bulkmatic Transport Company
violated Section 8(a)(1) and (5) of the Act by its discontinuance
of dues checkoff in about May 2002. I rejected the Company’s
340 NLRB No. 74
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 622
argument that its obligation to deduct union dues ceased upon
the expiration of the parties’ rider agreement to the master
agreement. As found by the Board in Hacienda Resort Hotel &
Casino, 331 NLRB 665 (2000), an employer’s obligation to
continue a dues-checkoff arrangement expires with the contract
that created the obligation. I did not find such expiration in the
instant case. The record did not demonstrate that the Com-
pany’s contractual obligations under the master agreement were
terminated upon the expiration of the rider agreement. I found
no documentary evidence or testimony to support a finding that
the parties intended for the expiration of the rider to extinguish
or terminate the master agreement. Inasmuch as the Company
unilaterally ceased to deduct union dues when there had been
no termination of the collective-bargaining agreement that cre-
ated the Company’s obligation to do so, I find that the Com-
pany has violated Section 8(a)(1) and (5) of the Act.
I certify the accuracy of the portion of the transcript, as cor-
rected, pages 71 to 90, containing my Bench Decision, and I
attach a copy of that portion of the transcript, as corrected as
“Appendix A.” The decision is further supplemented to include
the following recommended Order and proposed notice to em-
ployees. A copy of the notice to employees is attached hereto
as “Appendix B.”
CONCLUSIONS OF LAW
1. The Company, Bulkmatic Transport Company, is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, Local Union No. 407 A/W The International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees of the Company constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.

All drivers domiciled and located at the Company’s 1635
Merwin Avenue, Cleveland, Ohio terminal, but excluding
all office clericals, guards, and supervisors as defined in
the Act.

4. By unilaterally failing and refusing to deduct and remit to
the Union proper dues from the unit employees since on or
about May 1, 2002, the Company has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and (5) and Section 2(6) and (7) of the Act.
5. The Company’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Company has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, I have found that the
Company violated Section 8(a)(1) and (5) of the Act by its
failure to deduct and remit union dues to the Union after May 1,
2002. Accordingly, the Company must deduct and remit union
dues as required by the collective-bargaining agreement and
must reimburse the Union for its failure to do so since May 1,
2002, with interest as prescribed in El Centro Community Men-
tal Health Center, 266 NLRB 1 (1983). New Horizons for the
Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Bulkmatic Transport Company, Cleveland,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to deduct and remit to the Union, the
union dues as required by the master freight agreement and
central states truckload and steel supplement agreement.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days of the date of this order, begin deducting
and remitting to the Union dues owed to the Union as required
under the terms of the 1998–2003 Master Freight Agreement
and Central States Truckload and Steel Supplement Agreement
and reimburse the Union for the losses resulting from Respon-
dent’s failure to deduct and remit union dues since May 1,
2002, as set forth in the remedy section of this decision.
(b) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, Social Security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of reim-
bursement due under the terms of this Order.
(c) Within 14 days after service by the Region, post at its
Cleveland, Ohio facility copies of the attached notice marked
“Appendix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 8, after being signed by the Re-
spondent'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. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since May 1, 2002.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
BULKMATIC TRANSPORTATION CO. 623
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

APPENDIX A

71

This is the resumption of Bulkmatic Transport Company, 8-
CA-33405 and this is the 25th of October 2002. Counsel gave
closing arguments yesterday and I am now prepared to give a
bench decision in this matter pursuant to the Board’s Rules and
Regulations under Section 102.35 (a)(10). Initially however, I
want to commend counsel for presenting a very efficient and
focused presentation of evidence, as well as having articulated
very concise and well-reasoned arguments. Additionally, your
courtesy to each other and the professionalism that you have
demonstrated have been exemplary.
This is an unfair labor practice case prosecuted by the Na-
tional Labor Relations Board’s General Counsel, acting through
the Regional Director for Region 8 of the National Labor Rela-
tions Board, hereinafter the Board. Following an investigation
by Region 8’s staff, the Regional Director for Region 8 issued a
Complaint and Notice of Hearing on July 30, 2002 against
Bulkmatic Transport Company, hereinafter Company, based
upon an unfair labor practice charge filed on May 28, 2002 by
Local Union No. 407 A/W The International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, hereinafter the Union. The complaint alleges that on or
about May 1, 2002, the Company failed to continue in effect all
the terms and conditions of the Master Freight Agreement and
the Central States Truckload and Steel Supplement by ceasing
to check off and remit dues to the union. The Complaint al-
leges that such action is in violation of Section 8(a)(1) and (5)
of the Act. The Company filed an answer, denying the essen-
tial allegations in the Complaint.

72

I have considered the entire record in arriving at this decision.
While this case requires no credibility resolutions, I have care-
fully observed the three witnesses as they have testified and I
have considered their testimony with other record evidence.
Although there may be evidence or counsel’s arguments that I
do not specifically mention in the decision, I have not failed to
consider such evidence or argument. Certain of the facts in
this case are admitted, stipulated or undisputed. I am required
to set forth certain of those facts, such as the jurisdictional in-
formation, which I shall now do. It is admitted that the Com-
pany is an Illinois corporation, with an office and place of busi-
ness in Cleveland, Ohio where it has been acting as a common
carrier specializing in interstate transportation of dry and liquid
bulk commodities. Annually, the Company, in conducting its
business operations derives gross revenues in excess of $50,000
for the transportation of freight from the State of Ohio directly
to points located outside the state of Ohio.
The evidence establishes and the parties admit that the Com-
pany is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the National Relations Act, as
amended, hereinafter the Act. I find the Company to be an
employer engaged in commerce within the meaning of the Act.
The parties admit that the Union is a labor organization within
the meaning of Section 2(5) of the Act and I so find.

73

It is undisputed that certain of the Company’s employees;
herein called the Unit, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9
(b) of the Act. The employees included in the Unit are:
All drivers domiciled and located at the Employer’s 1635
Merwin Avenue, Cleveland, Ohio terminal, but excluding all
office clerical, guards, and supervisors as defined in the Act.
Background Information
It is undisputed that the Union has represented the Unit em-
ployees since 1978. Currently, there are four employees in the
bargaining unit and three of those employees have been repre-
sented by the Union for more than twenty years. The Company
admits that at all material times, the Union has been the desig-
nated exclusive collective bargaining representative of employ-
ees in the Unit, and that the Company has recognized the Union
since August 10, 1998
By joint stipulation, the parties submitted into evidence a
copy of the Master Freight Agreement and Central States
Truckload and Steel Supplement Agreement, hereinafter Master
Agreement covering the period from April 1, 1998 through
March 31, 2003. There is no dispute that the Company and the
Union are both signatory to that agreement. Union President
Alex Adams testified that when he became President of Local
407 in 2000, he had occasion to review the collective bargain-
ing agreements on file

74

with the Union. He discovered that he did not have a signed
copy of the Master Agreement with not only the Company but
also three other employers as well. He sent the agreement to
the Company and it was returned with a signature. Adams con-
firmed that the Company has abided by the terms of the agree-
ment even before the 2000 signing of the document. The Mas-
ter Agreement that was admitted into evidence contains the
signature of the Company’s Vice President of Operations, Mike
Brown. At the time that Brown signed the agreement on April
27, 2000, he was the Company’s Regional Operations Manager.
Section 1 of the Master Agreement provides that the execu-
tion of the agreement on the part of the employer shall apply to
all operations of the employer which are covered by this
agreement and shall have application to the work performed
within the classifications defined and set forth in the agree-
ments supplemented hereto. The agreement further states:

“There are several segments of the trucking industry covered by
this agreement and for this reason Supplemental Agreements
are provided for each of the specific types of work performed
by the various classifications of employees controlled by this
Master Agreement. All such Supplemental Agreements are
subject to and controlled by the terms of this Master Agreement
and are sometimes referred to herein as “Supplemental Agree-
ments”.
Article 3, Section 3 of the Master Agreement provides that:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 624
75

“The Employer agrees to deduct from the pay of all employees
covered by this Agreement the dues, initiation fees and/or uni-
form assessments of the Local Union having jurisdiction over
such employees and agrees to remit to said Local Union all
such deductions.”

By joint stipulation, the parties submitted into evidence a
copy of a document captioned as “Rider to Central States Area
Iron and Steel and Truckload Agreement”, hereinafter Rider.
The agreement provides that the agreement shall be in effect for
the period of April 1, 1998 through April 30, 2002. The Rider
specifies that it is an agreement between the Company and the
Union concerning all drivers domiciled and located at the Com-
pany’s 1635 Merwin Ave, Cleveland, Ohio facility. The agree-
ment further provides that the Rider shall be attached to and
become a part of the current Central States Area Iron and Steel
and Truckload Agreement and any successor agreement thereto.
The Rider further provides that if any article or paragraph of the
Rider conflicts or is inconsistent with the Central States Iron and
Steel and Truckload Agreement, the article or paragraph of the
Rider shall supersede the Master Agreement. Article 12 of the
Rider provides that it shall be effective as of April 1, 1998 and
shall remain in full force and effect through the 30th day of
April 2002. The agreement further states: “It is understood and
agreed that either party may, by proper written notification to
the other party at least sixty days prior to the expiration date of
April 30, 2002, terminate or request negotiations to modify this
Rider.” The document is dated August 10, 1998.

76
The Rider contains separate articles relating to wages, casual
employees, holidays, vacations, sick days, meals, lodging, fu-
neral leave, health and welfare, and pension. The Rider spe-
cifically states that while the Rider incorporates certain portions
of the Master Agreement, the Company is not agreeing to be
part of, or party to, any multi-employer bargaining unit. The
Rider further provides that its terms apply only to the employ-
ees at the Company’s Merwin Avenue terminal facility. Article
11 of the Rider confirms that the cost of living and eight-hour
guarantee provisions of the Master Agreement do not apply to
employees covered by the Rider. The last page of the docu-
ment contains an Addendum to the Rider, supplementing Arti-
cle 9 relating to Pension. The addendum provides:

“Pursuant to Article 61 of the Area Agreement, the Company
shall pay effective April 1, 1998 through March 31, 1999 the
sum of $124.00 per week as pension contributions for each
regular employee covered by this Rider. Effective April 1,
1999 through March 31, 2000, the Company shall pay $136.00
per week for each regular employee covered by this Rider.
Effective April 1, 2000 through March 31, 2001, the Company
shall pay $150.00 per week for each regular employee covered
by this Rider. Effective April 1, 2001 through March 31, 2002,
the Company shall pay $158.00 per week for each regular em-
ployee covered by this Rider. Effective April 1, 2002 through
March 31, 2003, the Company shall pay $166.00 per week for
each regular employee covered by this Rider. The Company
shall pay the daily rate for each casual employee covered by
this Rider.”
The Rider agreement was signed by a representative of the
Union and by Mike Brown for the Company and dated April
30, 1999 and April 23, 1999, respectively.

77

Mike Brown testified that he was the sole negotiator for the
Company during the negotiations for the 1998 Rider agreement.
He recalls that the Union and the Company had only one bar-
gaining session that was held at the Union’s office. The Com-
pany offered no proposals to the previously negotiated agree-
ment. Brown recalls that the Union proposed changes with
respect to wages, casual employees, sick days and health and
welfare and these were incorporated into the agreement. He
testified that the Union also proposed the term of the agreement.
Brown described the Rider agreement as what the parties
“lived and died by.” In explaining the importance of the Rider
agreement, he testified that he had not even seen the Master
Agreement at the time that he negotiated the Rider Agreement.
He recalled that he had not seen the Master Agreement until the
Union sent him the copy for signing in April 2000. Brown testi-
fied that during the Rider negotiations, the Union had not ex-
plained what would happen if there was a difference in the
terms of the Master Agreement and the Rider agreement.
Termination of the Rider Agreement
By a letter dated January 31, 2002, Labor Attorney Lawrence
C. DiNardo informed the Union that the Company desired to
terminate the collective bargaining agreement between the
Company and the Union for the Merwin Ave Unit employees.
DiNardo confirmed that as required by law, the Company was
prepared to negotiate in

78

good faith with the Union regarding a new agreement. By let-
ter dated February 5, 2002, Union President Alex Adams in-
formed the Company that the Union desired to revise or change
terms and/or conditions including monetaries and fringe bene-
fits for the Rider to the Central States Area Iron and Steel and
Truckload Agreement. Adams suggested that negotiations
might be completed before the April 30, 2002 expiration date of
the Rider. Brown testified that the Union and the Company
have engaged in two bargaining sessions for the negotiation of
a new Rider agreement. He recalls that the first session was
only a brief meeting between the parties in Chicago. The
Company presented proposals during a second meeting that
occurred sometime in April or May of 2002.
In approximately mid-May, 2002, the Union Steward noti-
fied Union Business Agent Benjamin Sizemore that the Com-
pany had ceased deducting Union dues for its employees.
Sizemore confirmed that the Union had never received any
notice from the Company that it intended to cease dues deduc-
tion. Union President Adams testified that the Company has
deducted no Union dues since May 2002.
On May 17, 2002, the Union filed a grievance concerning
the Company’s failure to deduct Union dues from its members.
By letter dated May 28, 2002, the Company responded to the
Union’s grievance. In its letter to the Union, the Company
BULKMATIC TRANSPORTATION CO. 625
asserts that because of the expiration of the collective bargain-
ing agreement, the Company cannot lawfully deduct dues on
behalf of the Union. The Company also asserts that because of
the expiration of the collective bargaining agreement, there is
no arbitration agreement

79

and the Company will not agree to submit the grievance to
arbitration or resolution by any Joint Committee.
The Company admits that it discontinued checking off and
remitting dues to the Union upon the expiration of the collec-
tive bargaining agreement on April 30, 2002. General Counsel
submits that when the Company ceased check-off, it failed to
continue in effect all the terms and conditions of the Master
Agreement and those terms and conditions of employment are
mandatory subjects of bargaining. General Counsel asserts that
by discontinuing dues check-off, the Company has interfered
with, restrained and coerced employees in violation of Section
8(a)(1) of the Act. General Counsel further asserts that the
Company has failed and refused to bargain collectively and in
good faith with the Union in violation of Section 8(a)(1) and
(5) of the Act.
The Company takes the position that the collective bargain-
ing agreement terminated on April 30, 2002 in accordance with
Section 8(d) of the Act. The Company relies upon the Board’s
ruling in Bethlehem Steel Corp., 136 NLRB 1500, 1502 (1962),
for the proposition that an employer does not commit an unfair
labor practice by discontinuing dues check-off after the expira-
tion of a collective bargaining agreement. The Company fur-
ther argues that the unfair labor practices alleged are barred, in
whole or in part, by Section 302 of the Labor Management
Relations Act 29 U.S.C. Section 158, herein the LMRA. The
Company submits that pursuant to Section 302 of the LMRA, it
is unlawful for an employer to pay money or anything of value
to a labor union in the absence of a valid collective bargaining
agreement.

80

Thus, there are two primary issues involved in this case. The
first issue is whether the Company violated the Act by ceasing
to deduct union dues following the expiration of the Rider
Agreement in April 2002. In order to make this determination
however, it is necessary to determine if there was an expiration
of the collective bargaining agreement that created the contrac-
tual right to dues deduction. As the Company’s counsel noted
in oral argument, there is little factual dispute involved in this
case. The area of dispute is in interpretation of the existing
facts. General Counsel and the Charging Party maintain that
while the Rider agreement expired in April 2002, the Master
Agreement remains in full force and effect until March 31,
2003. By contrast, the Company argues that the parties’ Rider
agreement was the primary agreement and that upon its expira-
tion in April 2002, the Company’s check-off obligation also
expired.
Board precedent dictates that most contractually established
terms and conditions of employment are mandatory subjects of
bargaining and cannot be changed unilaterally on contract expi-
ration under NLRB v. Katz, 369 U.S. 736 (1962). Dues check-
off however, has become one of those exceptions to this general
rule. The parties do not dispute the well-established precedent
that an employer’s obligation to continue a dues-check-off
arrangement expires with the contract that created the obliga-
tion. The Board first addressed the issue of the survivability of
dues check-off provisions in Bethlehem Steel, 136 NLRB 1500,
1502 (1962). Since 1962, the Board has continued to find that
an employer’s check-off obligation terminates with contract
expiration. Some of the more recent cases in which the Board
has reiterated this holding are Hacienda Hotel 331

81

NLRB [665] (2000), Cotter & Co. 331 NLRB [787] (2000),
Wilkes Telephone Membership Corp[.], 331 NLRB [823]
(2000), Frito Lay, Inc., 333 NLRB [1296] (2001), and Outdoor
Venture Corp[.], 336 NLRB [1006] (2001).
The Company argues that based on Bethlehem Steel and the
subsequent cases, the expiration of the Rider agreement extin-
guished the Company’s check-off obligation. Counsel points to
the Rider’s preamble, giving controlling authority to the Rider in
the event that any conflicts or inconsistencies arise between the
master Agreement and the Rider Agreement. Counsel asserts
that by the very language in the preamble it is apparent that the
parties did not intend to create two agreements. The Company
asserts that the documents must be read together and cannot be
treated separately. The Company further argues however, that
while some portions of the Master Agreement become part of
the Rider, others do not. By example, Counsel references Article
X of the Rider that specifically negates the Company’s partici-
pation in any multi-employer bargaining unit.
The Company further argues that one contract cannot have
two expiration dates. The Company takes the position that both
the Union and the Company served written notice of intent to
negotiate a new agreement. The Company argues that such
conduct demonstrates that the parties understood that the con-
tract was going to expire.
In support of its position, the Company cites Contempo De-
sign Incorporated 226 F. 3d 535 (7th Cir. 2000) where the
Court noted that the terms of a collective bargaining agreement
are to be enforced strictly when the terms are unambiguous. In
North Drury

82

Lane Productions, the Seventh Circuit Court of Appeals af-
firmed that it must enforce the terms of a collective agreement
when those terms are unambiguous. If the language of such an
agreement lends itself to one reasonable interpretation only, it
is not ambiguous. 80 F.3d 203 (7th Cir. 1996). The Company
argues that there is no ambiguity in the language of the Rider
and the parties’ intent to terminate the agreement on April 30,
2002 is clear.
The Company also argues however, that even if the language
of the Rider was ambiguous with respect to the termination of
the parties’ collective bargaining agreement, the Union and the
General Counsel have provided insufficient evidence that the
parties intended the agreement to continue beyond April 30,
2002. The Company cites to the Board’s decision in Sansla,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 626
Inc. 323 NLRB 107 (1997) in support of this argument. In
Sansla, the Board explained:

“Whenever the terms of a written contract or other instrument
are susceptible of more than one interpretation, or an ambiguity
arises, or the intent or object of the instrument cannot be ascer-
tained from the language employed therein, parole or extrinsic
evidence may be introduced to show what was in the minds of
the parties at the time of making the contract or executing the
instrument, and to determine the object for or on which it was
designed to operate.”
The Company argues that neither the Union nor the General
Counsel presented any evidence of what occurred in the Rider
negotiations in 1998 and thus the record contains only the tes-
timony of Brown. The Company contends that because Brown
is the

83

only witness who actually participated in the Rider negotia-
tions, his testimony of the import of the Rider is undisputed and
must be relied upon to cure any ambiguity in the language of
the agreement. I note however, that Brown recalled no discus-
sion with the Union during the Rider negotiations concerning
what happens when there are inconsistencies in the terms of the
two agreements. In his testimony, Brown did not include any
discussions of negotiations of the Master Agreement during the
1998 rider negotiations.
Counsel argues that the economic terms are embodied in the
Rider and it is the Rider that has been the guiding force for the
parties’ collective bargaining relationship. Counsel references
Brown’s testimony that he had not even seen the Master
Agreement at the time that he negotiated the Rider agreement.
In its 1969 decision in Tri-State Transportation Company, Inc.
179 NLRB 310, the Board dealt with the existence of both a
master agreement and a supplemental agreement in the context
of a contract bar issue. The Board determined that as the mas-
ter agreement and the supplemental agreement had different
dates, the one to be considered for election bar purposes was
the agreement which embodied the basic terms and conditions
of employment. The Board found that most of the basis terms
and conditions of employment were set out in the master
agreement. Terms relating to union-security, discharges and
layoffs, grievance and arbitration, lock out and strikes, union
steward visitation provisions as well as most general conditions
were set out in the master agreement. The supplemental
agreement contained certain variations in wages, vacations,
holidays, dates of welfare and pension fund payments, and
hours. The Board stated:

84

“Since these modifications deal only with the peculiarities of
the Employer’s operations at this facility and in no way change
the basic terms of employment covered by the master agree-
ment, their incorporation in the supplemental agreement does
not warrant consideration of the supplemental agreement as the
basic agreement”

As Counsel for the General Counsel points out in oral argu-
ment, the terms contained in the master agreement and the sup-
plemental agreement in Tri State are consistent with the terms
contained in the Master Agreement and the Rider in the present
case. While the Rider may contain more economic terms than
the Master Agreement, the Master Agreement contains the
terms relating to seniority, the grievance procedure, work stop-
pages, closing of terminals and elimination of work, discharge
and separation of employment, subcontracting, and drug test-
ing. The Board has long determined that to serve as a bar, a
contract must contain substantial terms and conditions of em-
ployment deemed sufficient to stabilize the bargaining relation-
ship. It will not constitute a bar if it is limited to wages only, or
to one or several provisions not deemed substantial. See Appa-
lachian Shale Products Co. 121 NLRB 1160 (1958).

Noting the Board’s holdings in Tri-State Transportation Com-
pany, Inc., Appalachian Shale, and Cooper Tank and Welding
Corp., 328 NLRB [759] (1999), I find that the terms embodied
in the Master Agreement are sufficiently substantial to not only
act as a contract bar, but also to constitute the basic agreement.
There is no question that the preamble of the Rider provides
that where there is any inconsistency or conflict between the
terms of the Master Agreement and the Rider,

85

the terms of the Rider prevail. I note however, that there is no
language contained in the Rider that in any way limits the dura-
tion of the Master Agreement to this preamble limitation. By
contrast, the addendum to the Rider sets out the Company’s
obligation for pension contributions through the life of the Mas-
ter Agreement.
There is no dispute that while the parties have not negotiated
a new Rider agreement, the Company has continued to adhere
to contractual obligations found in both the Master Agreement
as well as the Rider Agreement, with the exception of the
check-off and arbitration provisions. I would also note that the
check-off and arbitration provisions are contained in the Master
Agreement and not the Rider agreement. Brown acknowledged
that while there is no reference to the dues check-off and the
arbitration procedure in the Rider agreement, the Company has
deducted dues in the past years and the grievance procedure has
been in place.
Accordingly, while the Company may have viewed the Rider
Agreement as their more important or pivotal agreement with
the Union, there is insufficient evidence to demonstrate that the
contractual obligations under the Master Agreement were ter-
minated by the expiration of the Rider Agreement. There is no
documentary evidence or testimony that the parties intended for
the expiration of the Rider to extinguish or terminate the Master
Agreement. Conversely, the 1999 addendum to the Rider spe-
cifically extends the contractual obligation for pension contri-
butions to the end of the Master Agreement in 2003. Accord-
ingly, by ceasing to check off and remit dues to the Union, the
Company has failed and refused to bargain collectively and in
good faith with

86

the exclusive collective bargaining representative of its em-
ployees within the meaning of Section 8(d) of the Act in viola-
tion of Section 8(a)(1) and (5).
BULKMATIC TRANSPORTATION CO. 627
When I have received the transcript of these proceedings, I
will prepare a certification of Bench Decision that will attach
the transcript portion containing the Bench Decision. This certi-
fication will also contain specific remedy, order and notice
provisions, which will embody my recommended findings and
conclusions. It will be served on the parties and at that point,
the period for filing an appeal of my decision will run. I also
refer the parties to the Board’s rules and Regulations for addi-
tional information regarding the time limit for the filing of an
appeal.
And with that, the hearing is now closed.