Dane County Dairy, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1985

273 N.L.R.B. 1711 (N.L.R.B. 1985)

DANE COUNTY DAIRY
1711
Dane County Dairy, Inc. and Drivers, Salesmen,
Warehousemen, Milk Processors, Cannery,
Dairy Employees and Helpers Union Local 695,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America. Case 30-CA-7966
30 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 10 February 1984 Administrative Law Judge
Stanley N. Ohlbaum issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a reply brief.
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, findings, 1 and
conclusions and to adopt the recommended
Order. 2
In its exceptions the Respondent contends that the complaint should
be dismissed because it does not meet the Board's jurisdictional standards.
We find no merit in this contention. Thus, in Dane County Dairy, 269
NLRB 218 (1984), the Board asserted jurisdiction over the Respondent
based on the finding of the judge there, to which the Respondent did not
except, that it met the Board's $50,000 indirect inflow standard for nonre-
tail commercial enterprises and the Respondent's admission that it was an
employer within the meaning of the Act. In the present case, the com-
plaint alleges that the Respondent met the Board's indirect inflow stand-
ard by purchasing and receiving within the previous year products,
goods, and materials valued in excess of $50,003 from enterprises within
the State which had received them directly from points located outside
the State. The Respondent neither denied this allegation of the complaint
in its answer nor presented any evidence at the hearing to refute it. At
the hearing, the Respondent admitted facts sufficient to show that it
meets the statutory standard for assertion of the Board's jurisdiction and
admitted that it was an employer within the meaning of the Act. Al-
though evidence was presented at the hearing to show that around July
1983 (within a year pnor to the issuance of the complaint) the Respond-
ent converted its operations as a licensed wholesale dairy to a wholesale
line hauler, there is no evidence that after this change the Respondent no
longer continued to meet the Board's indirect inflow standard for the as-
sertion of jurisdiction. In these circumstances, we find it proper to assert
junsdiction over the Respondent. See Roma Baking Co., 263 NLRB 24
fn. 1 (1982). In asserting jurisdiction over the Respondent, however, we
do not adopt the judge's finding that at the hearing the Respondent ad-
mitted purchasing goods in the State valued at $50,000 which its suppli-
ers had acquired from places outside the State, since the record reflects
no such specific admission by the Respondent at the hearing.
2 In the remedy portion of his decision, the judge concluded that the
Respondent should be required to pay interest in accordance with Florida
Steel Corp., 231 NLRB 651 (1977), inter alia, on sums it failed to contrib-
ute to the employees' pension and health and welfare plans as a result of
its unilateral discontinuance of payments to those plans. Because the pro-
visions of employee benefit fund agreements are variable and complex,
the Board does not provide at the adjudicatory stage of a proceeding for
the addition of interest at a fixed rate on unlawfully withheld fund pay-
ments. Accordingly, we do not adopt the portion of the judge's proposed
remedy providing for Florida Steel interest rates on delinquent fund con-
tributions. Rather, we leave to the compliance stage the question whether
the Respondent must pay any additional amounts into the fringe benefit
funds in order to satisfy our "make-whole" remedy. These additional
amounts may be determined, depending on the circumstances of the case,
by reference to the provisions in the documents governing the funds at
issue and, where there are no governing provisions, to evidence of any
loss directly attributable to the unlawful withholding action, which might
include the loss of return on investment of the portion of funds withheld,
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Dane
County Dairy, Inc., Madison, Wisconsin, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
additional administrative costs, etc., but not collateral losses. See
Merryweather Optical Co. 240 NLRB 1213 (1979). Further, with respect
to all backpay due here, the judge cited F. W. Woolworth Co., 90 NLRB
289 (1950). We note that the quarterly computation method used in F. W.
Woolworth is Inappropriate in the circumstances here. See Ogle Protection
Service, 183 NLRB 682 (1970).
DECISION
STATEMENT OF THE CASE
STANLEY N. OHLBAUM, Administrative Law Judge.
This proceeding' under the National Labor Relations
Act (Act) was litigated before me in Madison, Wiscon-
sin, on January 5, 1984, with all parties participating
throughout by counsel or other representative. Respond-
ent elected to proceed through its secretary and regis-
tered agent Duane F. Bowman. Although the Charging
Party was present and testified through its recording sec-
retary and business agent Louis Firari, it was unrepre-
sented by its own counsel at the trial. All parties were
afforded full opportunity to be heard and to present evi-
dence and contentions. Although at the conclusion of the
trial Respondent requested and was allowed 1 month's
time to file briefs and propose findings and conclusions,
none have been received. The entire record has been
carefully considered.
Issues
The issues presented are whether Respondent violated
Section 8(a)(1) and (5) of the Act through failing and re-
fusing to furnish the Charging Party with required bar-
gaining information and, through instituting unilaterally
during the course of 'collective negotiations with the
Union, unnegotiated changes in wages, terms, and condi-
tions of employment of Respondent's bargaining unit em-
ployees.
On the entire record and may observations of the testi-
monial demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Respondent, a Wisconsin corpo-
ration, has been engaged in the wholesale dairying
and/or carrier delivery service of dairy and other prod-
ucts, based in Madison, Wisconsin. During the represent-
ative calendar year immediately preceding issuance of
the complaint, Respondent purchased and received at or
' Based on a complaint issued by the Regional Director for Region 30
of the National Labor Relations Board, dated October 25, growing out of
a charge Med September 9, 1983.
273 NLRB No. 209
1712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
near its Madison, Wisconsin facility products, goods, and
materials valued at over $50,000 in connection with and
as a necessary part and in the course and conduct of the
operation of its aforesaid business enterprise from other
enterprises in Wisconsin in turn acquired from places
outside of Wisconsin. At trial, Respondent conceded
such purchases and stipulated it is an employer within
the meaning of the Act 2
I find that at all material times Respondent has been
and is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act; and that,
at all of those times, the Charging Party has been and is
a labor organization as defined in Section 2(5) of the
Act
II UNFAIR LABOR PRACTICES
At trial, Respondent conceded in testimony of its sec-
retary, registered agent and labor negotiator Duane F.
Bowman, that during the course of negotiations with the
Charging Party as acknowledged bargaining representa-
tive of Respondent's bargaining unit employees and,
without having arrived at impasse, Respondent unilater-
ally (1) reduced unit employees' wages from $8.84 to $8
per hour, and (2) ceased making contributions to those
employees' health and welfare and pension funds. It was
further established, through credited testimony of the
General Counsel's witnesses, 3 not overcome by credible
counterproof, that Respondent also unilaterally (3) dis-
continued its long-established system of vacation pay,4
and also (4) failed and refused to provide the Union with
bargaining information, needed and expressly requested
by the Union, as well as explicitly promised to the Union
by Respondent, concerning (a) costs of Respondent's sick
leave, jury-duty leave, and funeral leave policies and
practices for its employees, and (b) data, with confirma-
tory audit access to Respondent's books and records,
concerning Respondent's plea of poverty, acknowledged
by Respondent at trial to have been made Although Re-
spondent denies it has also failed and refused to agree to
a date for further negotiations, I credit Bowman's testi-
mony that he is ready and willing to continue to negoti-
ate, since no negotiating impasse has been reached, but
that he has, as a matter of strongly felt individual princi-
ple, been unwilling to negotiate under the compulsion,
"threat," or "club" of the instant pending unfair labor
practices proceeding against Respondent. It is clear,
however, that, as matter of law, this is no defense, since
the filing of a charge under the Act neither mitigates
prior unlawful failure to bargain or other violation of the
Act nor tolls further obligation to bargain and otherwise
comply with the Act's requirements. Cf. Pine Manor
Nursing Home, 230 NLRB 320, 326 (1977), enfd. 578
F.2d 575 (5th Cir. 1978); Zenith Radio Corp., 187 NLRB
785 (1971), enfd 80 LRRM 2768 (7th Cir. 1972). Under
our system, where individual "principle" clashes with
law, it must yield to law, recourse being to the legisla-
tive branch.
2 Also as admitted and so found in earlier Board Case 30-CA-7218
(JD-237-83; June 27,1983, Beddow, J)
3 Andersen, Locke, Firan, and Knoebel
4 As alleged unopposed amendment, at trial, to complaint par 'D4b"
Respondent also contends that because of the necessity
to "defend" this proceeding it has not had the time to
furnish the required bargaining information, which it
does not contend is improper and which, indeed, it has
agreed to supply to the Union. Since this "explanation,"
which is difficult to accept and has not been factually es-
tablished, would in any event not be a defense to those
allegations of the complaint 3 and has no bearing whatso-
ever on the allegations concerning the unilateral changes
in wages, terms and conditions of employment during
the course of impasse-free bargaining, the "explanation"
is noted but must be rejected as inadequate in law
That unilateral changes in wages and terms and condi-
tions of employment during impasse-free collective bar-
gaining are violative of the bargaining obligation of the
Act has long been well settled. See Fibreboard Paper
Products Corp. v. NLRB, 379 U S. 203 (1964); NLRB v.
Katz, 369 U.S. 203 (1964); Taft Broadcasting Co., 163
NLRB 475 (1967), enfd. 395 F.2d 622 (D.C. Cir. 1968).
It has likewise been long settled that failure to provide
necessary bargaining information or data, reasonably re-
quired by the employees' bargaining representative in
fulfilment of its bargaining tasks—including access to the
employer's books and records to confirm an employer's
claim of poverty or economic inability to deal further6—
is also violative of the bargaining obligations of the Act.
See NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); Cur-
tiss-Wright Corp. v. NLRB, 347 F.2d 61 (3d Cir. 1965);
NLRB v. Whitin Machine Works, 217 F 2d 593, 594 (4th
Cir. 1954), cert. denied 349 U.S. 905 (1955). That this in-
cludes fringe benefit cost data, see NLRB v. Borden, 600
F.2d 313 (1st Cir. 1979); Sylvania Electric Products v.
NLRB, 358 F.2d 591 (1st Cir. 1966), cert. denied 385
U.S. 852 (1966); Curtiss-Wright, supra; NLRB v. John S.
Swift Co., 277 F.2d 641 (7th Cir. 1960); Semco Printing
Center, 265 NLRB No 73 (1982) (not reported in Board
volumes); Weber Veneer & Plywood Co., 161 NLRB 1054
(1966). It is, finally, further well settled that, since such
actions also interfere with, restrain, and coerce employ-
ees in the exercise of rights guaranteed to them by the
Act, they also infringe employees' Section 7 rights and
thereby violate Section 8(a)(1) of the Act.
It is accordingly so found and determined
On the foregoing findings and the entire record, I state
the following
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. By its actions described and found in section II,
above by each of them, Respondent has, as alleged in the
complaint, failed and refused, in violation of Section
8(a)(5) of the National Labor Relations Act to bargain in
good faith with the Charging Party as the exclusive bar-
gaining representative of Respondent's employees in the
following appropriate bargaining unit:
All production and maintenance employees, includ-
ing driver salesmen, milk and ice cream, relief driv-
5 Cf , e g, Aeohan Corp, 247 NLRB 1231 (1980)
6 NLRB v Truitt Mfg Co. 351 U S 149 (1956)
DANE COUNTY DAIRY 1713
ers, truckdrivers, working foremen and garage em-
ployees at Respondent's facility in Madison, Wis-
consin.
3 By its said actions and each of them, Respondent
has further interfered with, restrained, and coerced em-
ployees, and continues so to do, in the exercise of their
rights under Section 7, in violation of Section 8(a)(1) of
said Act.
4. The aforesaid unfair labor practices and each of
them have affected, are affecting and, unless permanently
restrained and enjoined, will continue to affect com-
merce within the meaning of Section 2(6) and (7) of the
Act
REMEDY
Respondent should be required to cease and desist
from the unfair labor practices found, and affirmatively
to carry out its bargaining obligations under the Act. Re-
spondent should further, under the circumstances, be re-
quired to reinstate all unilaterally changed wages and to
make and reinstitute all unilaterally discontinued benefits
and other payments, pending the outcome of good-faith
bargaining thereon with its unit employees' bargaining
representative; also forthwith to furnish said representa-
tive with necessary and required bargaining information
and data consisting of costs of its sick leave, jury-duty
leave, and funeral leave policies and practices; and also
to furnish said representative with economic data, with
access to Respondent's books and records for corrobora-
tion and audit purposes, to support Respondent's claim
of poverty and economic inability to deal further. Sums
due to employees and the Union shall be computed, to-
gether with interest, as explicated in F. W Woolworth
Co, 90 NLRB 289 (1950), Isis Plumbing Co, 138 NLRB
716 (1962), and Florida Steel Corp., 231 NLRB 651
(1977). Respondent should also be required to preserve
and make available to the Board's agents its books and
records for backpay, other computation, and compliance
purposes and, finally, to post the usual informative notice
to employees
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 7
ORDER
The Respondent, Dane County Dairy, Inc., Madison,
Wisconsin, its officers, agents, successors, and assigns,
shall
1. Cease and desist form
(a) Unilaterally and without bargaining in good faith
with Drivers, Salesmen, Warehousemen, Milk Proces-
sors, Cannery, Dairy Employees and Helpers Union
Local 695, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America as the exclusive bargaining representative of
7 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 w lived for all pur-
poses
Respondent's employees in the following appropriate
bargaining unit, reducing or otherwise changing said em-
ployees' wages or terms or conditions of employment, in-
cluding their vacation pay and Respondent's payments or
contributions into the employees' health and welfare
fund and their pension fund. The aforesaid bargaining
unit is:
All of Respondent's production and maintenance
employees, including driver salesmen, milk and ice
cream, relief drivers, truckdrivers, working foremen
and garage employees at Respondent's facility in
Madison, Wisconsin.
(b) Failing and refusing to supply the Union with nec-
essary and required bargaining information and data, in-
cluding the costs of Respondent's sick leave, jury-duty
leave, and funeral leave policies and practices, and also
including the facts concerning Respondent's plea of pov-
erty and alleged economic distress and inability to deal
further with regard to economic issues with said employ-
ees, and providing accompanying access to Respondent's
books and records for corroboration and audit purposes.
(c) Failing to specify a further date or dates for con-
tinuing negotiations with the Union
(d) In any like or related manner not bargaining in
good faith with the Union or failing to place into writing
and execute any agreement reached with the Union in-
corporating the outcome of such bargaining or interfer-
ing with, restraining, or coercing employees in the exer-
cise of rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Forthwith rescind, retroactively as of the date
placed into effect, Respondent's unilateral wage decrease
and its unilateral cessation of payments into the health
and welfare fund and pension fund of its employees in
the collective-bargaining unit, made on or about August
8, 1983, and also rescind, retroactively as of the date
placed into effect, Respondent's unilateral discontinuance
of or change in the employees' vacation pay and benefits;
and forthwith reinstitute and reinstate all of the forego-
ing until the outcome of good-faith collective bargaining
with its employees' Union.
(b) Make whole Respondent's employees, as well as
their health and welfare fund and their pension fund, for
all unilateral reductions in their wages, elimination or re-
duction in vacation pay and benefits, and cessation of
payments into the aforesaid funds, together with interest,
as set forth in the remedy portion of the decision of
which this Order forms a part.
(c) Promptly supply to the Union data, heretofore re-
quested and undertaken to be furnished, concerning the
costs of Respondent's sick leave, jury-duty leave, and fu-
neral leave policies and practices.
(d) Promptly supply to the Union data, heretofore re-
quested and undertaken to be furnished, concerning the
facts and basis underlying and justifying Respondent's
claim of poverty or alleged economic inability to deal
further on economic matters involving the wages and
terms and conditions of employment of its unit employ-
ees, and in conjunction therewith provide access to Re-
1714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's books and records, at reasonable places, dates,
and times, to the Union and its representatives for cor-
roboration and audit purposes.
(e) At the aforementioned Union's request, bargain
collectively in good faith with the Union, as of the date
of Respondent's discontinuation thereof about September
9, 1983, including specifying reasonable dates, times, and
places for such resumed bargaining, without making uni-
lateral changes in wages, terms, or conditions of employ-
ment of unit employees during the course of such bar-
gaining and place in writing, and sign any agreement
reached
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, wage rate and income records, work sched-
ules, overtime records, and all other records necessary to
determine the amounts of backpay, vacations and vaca-
tion pay, health and welfare fund and pension fund con-
tributions or payments, and other sums due under and
the extent of compliance with the terms of this Order.
(g) Post at its Madison, Wisconsin premises copies of
the attached notice marked "Appendix." 8 Copies of the
notice, on forms provided by the Regional Director for
Region 30, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
8 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT change your wages, vacation pay, or
other terms or conditions of employment, or eliminate or
reduce our contributions or payments into your health
and welfare fund or your pension fund, without bargain-
ing in good faith with your Union
WE WILL NOT fail or refuse to supply your Union, at
its request, with information and data required by your
Union in carrying out its representational and bargaining
functions on your behalf, including our costs of your
sickness leave, jury-duty leave, and funeral leave bene-
fits, and also access to our books and records for audit
purposes to verify any claim of poverty or economic in-
ability on our part in relation to your wages, benefits,
and terms and conditions of your employment.
WE WILL NOT in any like or related manner fail or
refuse to bargain in good faith with your Union nor
interfere with, restrain, or coerce you in the exercise of
your rights under the Act.
WE WILL at once reinstate your wage rates which we
reduced about August 8, 1983, as well as our payments
and contributions into your health and welfare and pen-
sion funds which we discontinued then, and make you
and those funds whole for any sums which you lost
thereby, as well as for any vacation pay you lost when
we eliminated or reduced those benefits, all plus interest.
WE WILL bargain with Drivers, Salesmen, Warehouse-
men, Milk Processors, Cannery, Dairy Employees and
Helpers Union Local 695, affiliated with the Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, as the exclusive bargaining repre-
sentative of our employees in the following collective-
bargaining unit, including specifying a date or dates for
resumed bargaining, and WE WILL place into writing and
sign any agreement reached. The bargaining unit is:
All production and maintenance employees, includ-
ing driver salesmen, milk and ice cream, relief driv-
ers, truckdrivers, working foremen and garage em-
ployees at our Madison, Wisconsin facility.
WE WILL promptly supply your Union with informa-
tion and data requested by the Union and needed by it
for negotiation purposes with us, including the cost to us
of your sick leave, jury-duty leave, and funeral leave;
and WE WILL also promptly supply to your Union infor-
mation and data supporting our plea of poverty and our
inability to improve or maintain your pay and benefits,
and WE WILL permit the Union's representatives to cor-
roborate that information through their audit of our
books
DANE COUNTY DAIRY, INC