Ellex Transportation, Inc.

National Labor Relations Board - Board Decisions

May 5, 1975

217 N.L.R.B. 750 (N.L.R.B. 1975)

750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ellex Transportation , Inc. (Formerly Hugh Breeding,
Inc.) andTulsa General Drivers, Warehousemen and
Helpers Local Union 523, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America. Case
16-CA-5587
May 5, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On December 30, 1974, Administrative Law Judge
Ramey Donovan issued the attached Decision in this
proceeding. Thereafter, counsel for the General Coun-
sel and the Charging Party filed exceptions and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-menber panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the complaint be, and hereby is, dismissed in its en-
tirety.
MEMBER FANNING, concurring:
I agree that the complaint in this case should be
dismissed. Here employee health and welfare and pen-
sion coverage expired as of Friday, November 30, 1973,
with the expiration of the collective-bargaining agree-
ment. On Monday, December 3, a decertification peti-
tion, found by the Regional Director to raise a question
concerning representation, was filed. Subsequently, Re-
spondent covered the unit employees with the plan that
had been in effect for nonunit employees.
The complaint alleges that Respondent acted unlaw-
fully in that it acted unilaterally in extending the health
and pension plan covering nonunit employees to its
unit employees. There is no allegation in the complaint
of any unlawful conduct with respect to the expired
I While we affirm the Administrative Law Judge's findings and conclu-
sions, we do not rely on his comment that Respondent might have violated
Sec 302 of the Act by continuing premium payments to the Central States
Health and Welfare and Pension Funds after the contract expired
plan. A question concerning representation existed
which foreclosed Respondent from dealing with the
Union at the time it instituted the health and pension
coverage. Telautograph Corporation, 199 NLRB 892
(1972) (Member Jenkins' and my concurring opinion).
Without some action by Respondent, the unit em-
ployees would have been without any coverage. Re-
spondent's action merely resulted in unit employees
maintaining, in general terms, the same relative eco-
nomic position as they had under the terms of the
collective-bargaining agreement. In these circum-
stances, I agree that Respondent did not act
unlawfully.2
2 In view of this, I find it unnecessary to decide whether the Union
acquiesced in Respondent's conduct In agreement with my colleagues, I do
not rely on the Administrative Law Judge's comment that Respondent
might have violated Sec 302 of the Act by continuing premium payments
to the Central States Health and Welfare and Pension Funds after the
contract expired
DECISION
RAMEY DONOVAN, Administrative Law Judge: The charge
in this case was filed on May 23, 1974, by the Union. The
complaint issued under date of July 31, 1974, and the hearing
was held in Tulsa, Oklahoma, on October 17, 1974, with all
parties represented by counsel.
The complaint alleges that since November 10, 1970, the
Union has been the certified bargaining representative of Re-
spondent's employees in an appropriate unit. It is further
alleged that on or about December 1, 1973, Respondent uni-
laterally instituted and implemented a pension program and
a health and welfare program for unit employees, in violation
of Section 8(a)(1) and (5) of the Act. The allegation is also
made that a strike of Respondent's employees was caused by
the aforesaid unfair labor practices.
In its answer to the complaint, Respondent denies the
commission of the alleged unfair labor practices and alleges
affirmatively that it acted in good faith and that the Union
acquiesced in its action. It is further alleged by Respondent
that it bargained with the Union on the matters referred to
in the complaint and "reached areas of tentative agreement"
prior to the calling of the strike, and that the strike was
unlawfully called and that the strike was "called solely by
reason of economic factors."
FINDINGS AND CONCLUSIONS
I JURISDICTION
Ellex Transportation, Inc. (formerly Hugh Breeding, Inc.),
Respondent, is, at all times material, an Oklahoma corpora-
tion, maintaining offices and places of business in Tulsa, Ard-
more, and Ponca City, Oklahoma; Nederland, Texas; El
Dorado, Kansas; Fort Smith, Arkansas; and Mount Vernon
and Hannibal, Missouri, where it is engaged in business as a
motor carrier.
In a representative 12 month period, Respondent, in the
course of its business operations, performed services for cus-
tomers outside Oklahoma of a value in excess of $50,000 and
217 NLRB No. 120
ELLEX TRANSPORTATION, INC.
also performed services for customers who did business with
customers outside Oklahoma of a value in excess of $50,000.
At all times material , Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act. The Union, at all times material , is a labor orgamza-
tion within the meaning of Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
On November 10, 1970, the Union was certified as the
collective-bargaining agent in the following appropriate unit
of Respondent's employees:
All truckdrivers, mechanics, janitors, tire servicemen,
tire recap men, gas pump men, and helpers of the Em-
ployer at its facilities in Tulsa, Ardmore, and Ponca
City, Oklahoma; Nederland, Texas; El Dorado, Kansas;
Fort Smith, Arkansas; and Mount Vernon and Hanni-
bal, Missouri; excluding office clerical employees,
professional employees, guards and supervisors as de-
fined in the Act.
Thereafter, the Employer and the Union entered into a
collective-bargaining contract covering "all truck and trans-
port drivers, shop and maintenance employees of the Com-
party, excluding "office and clerical employees, guards, and
supervisors as defined by the National Labor Relations Act."
By its terms, the contract included, inter alia, coverage of
the employees under the Union's Central States, Southeast,
and Southwest areas health and welfare fund and pension
fund, with prescribed employer premium contributions to the
said funds.' The term of the contract was December 1, 1970
to November 30, 1973, inclusive. The contract provided for
continuation of the contract from year to year after its termi-
nal date unless either party served notice of desire to modify
or to terminate the contract at least 60 days-prior to the date
of expiration.
In September 1973, Hammontree, assistant business repre-
sentative of the Union, sent to Respondent a five-page
proposal for a contract to succeed the expiring 1970-73 con-
tract.
The proposal stated that it proposed all language in the
Master Tank Line Agreement between various companies
and the Southern Conference of Teamsters, with an adden-
dum with Respondent "to be negotiated on sick leave, cost
of living, wages, health and welfare, pension , holidays, length
of contract, dispatch procedure" and so forth. Various
proposals of the Union were then briefly stated on such mat-
ter3 as wages, sick leave, holidays, pension, and health and
welfare. For company drivers, for instance, the proposal on,
"Pension [was] $11.00; 11.00; and 12.50"; on health and
welfare the proposal was $11.50; 12.50;,13.50. The foregoing
dollar amounts referred to the Union's proposal of the
amount of Respondent's contribution to the Teamsters pen-
sion and health and welfare funds.2
At some time in September 1973, after receipt of the union
proposal, Respondent arranged with Hammontree to meet
In the course of this Decision I shall sometimes refer to these funds as
Teamsters funds.
2 In the expiring contract, the amounts of Respondent's contributions to
the aforedescribed funds had also been set forth
751
with him "before we got into negotiations." The parties, prin-
cipally Dan Banks, vice president of safety and industrial
relations for Respondent , and Hammontree , met at a Tulsa
motel. According to Hammontree, "This was not a formal
meeting. It was just to discuss our proposals that we had
given to them previous. . . . They wanted an explanation of
what some of our proposals meant before we got into negotia-
tions."
As requested, Hammontree did explain the items of the
union proposal referred to by Respondent. The matter of the
pension and health and welfare funds in the union proposal
was not raised by Respondent or discussed. The parties
agreed at the September session to hold a contract negotiation
meeting in October, but this meeting was never held due to
the filing of an intervening deauthorization petition. The par-
ties did not meet again until March 1974 . As Hammontree
testified "we had no more negotiations" after the deauthori-
zation petition was filed, although, according to Hammon-
tree, "I probably talked to them [the Company] on the tele-
phone. That was about it. We agreed, you know, that after
an election we would get into negotiations on the contract "
In the meantime, on September 28, 1973, the deauthoriza-
tion petition (Case 16-UD-13) had been filed with the Board
and a decertification petition, in effect, absorbed and su-
perseded the deauthorization petition and was processed
through an election.
An election was held on February 15, 1974, in the same
unit of Respondent's employees in which the Union had been
certified in December 1970. The Union won the election.3
On February 28, 1974, the Union was once again certified or
recertified in the unit previously described.
After the Union had submitted its contract proposal to
Respondent in September 1973 and after the preliminary
meeting between the parties in that same month regarding the
union proposals, as described above, the parties did not meet
again for contract negotiations until March 7, 1974. This
hiatus was due to the filing and the pending and the process-
ing of the deauthorization and decertification petitions above
mentioned. As Hammontree testified, above "We agreed, you
know, that after an election we would get into negotiations
on the contract."
In the period after the expiration of the old contract on
November 30, 1973, various unit employees of Respondent
had filed claims under the old contract's health and welfare
provisions. These, as we have seen, were provisions under the
Teamsters health and welfare fund to which the employer,
pursuant to the contract terms, made specified contributions.
The health and welfare claims of employees after November
30, 1974, were processed by the local union in the customary
way and sent to the fund's office in Chicago. Respondent had
paid or did pay its contributions or premiums to the fund on
employee claims that originated prior to November 30, 1973,
the terminal date of the contract. Such employee claims were
then processed to conclusion under the Teamster health and
welfare fund. However, there were other employee health and
welfare claims, those arising after November 30, 1973, that,
when processed by the local union to the fund's office in
Chicago, were not paid by the fund because Respondent had
3 The February 1974 election was pursuant to the decertification petition.
The vote was 73 for the Union and 71 against
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceased making the prescribed contributions or premium pay-
ments to the fund. Hammontree and the local union were of
course notified of this situation by the Teamster fund office.
Hammontree also testified that he heard, during the post-
November 30, 1973, period, from various employees, that the
Respondent was now processing employee claimants under
its own health and pension plan.
In any event, although it had received no communication
from Respondent on the subject, the Union was aware that
in the period following the expiration of the contract, the
Respondent had ceased making premium or contribution
payments to the Teamster funds and that the funds were not
honoring, i.e., were not paying, employee claims under the
expired contract's health, welfare, and pension provisions.
During this same period the employees became aware, and
the Union, through intelligence from various employees, also
became aware, that health and welfare and apparently pen-
sion claims of employees were being received and handled by
the Respondent under a plan or program of Respondent.
From December 1, 1973, after the expiration of the old con-
tract, the Union did not ask the Respondent about the forego-
ing health, welfare, and pension situation, nor did it protest
the situation to Respondent.
There is no dispute that after the contract expired on
November 30,1973, the Respondent ceased making premium
contributions to the Teamster health, welfare, and pension
funds. The old contract ran to November 30, inclusive.
November 30 was a Friday. December 3, 1974, was a Mon-
day. As far as appears, the Respondent made no announce-
ment to the Union or to the employees on December 1, 2, or
3, or immediately thereafter, of the situation that would pre-
vail regarding health and welfare or pensions now that the old
contract had expired. The record does not establish the pre-
cise date when the Respondent made available and imple-
mented its own health, welfare, and pension plan.
The General Counsel in his brief states that "on December
1, 1973, or shortly thereafter" the Respondent implemented
its own health and pension plan for the unit employees. The
Charging Party's brief describes the implementation of the
company plan as occurring "shortly after the first of Decem-
ber." The foregoing statements are based on the rather impre-
cise testimony of Banks, a vice president of Respondent,' who
was called as a witness by the General Counsel.
I do not disagree with the foregoing quoted statements if
they are understood to embrace the following context of facts
in the record, Since Respondent had not announced to the
Union or to the employees what it would do regarding health,
welfare, and pensions after the old contract expired on
November 30, 1973, employees with health and welfare
claims continued to come to the local union office for process-
ing of the claims, as had been the case under the contract.
Presumably, the earliest claimant, after midnight November
30, would have come to the union office on Monday, Decem-
ber 3, or perhaps there were no claims until a week or, so
thereafter. The local union processed the claim or claims and
this included sending it or them to the Teamster fund office
in Chicago. The local union then, subsequently, was informed
by the fund office that the claim would not be paid because
the Respondent had ceased making premium contributions to
the fund. The local union relayed the information to the
claimant. Although the local union did not inquire of the
Respondent what the situation was or why, the claimant
evidently then went to the Respondent with the claim for
which he desired compensation.' The Respondent there-
upon processed the claim under its own health, welfare, and
pension program. The latter was a program that Respondent
had for its nonunit employees and it now extended its cover-
age to the unit employees. In short, because of the time factor
in the various steps aforedescribed, it was probably a week or
more after November 30, 1973, that Respondent imple-
mented its own program for any unit employee.' The indi-
cation is that at that point and thereafter Respondent pro-
cessed, under its own health and pension plan, all claims that
had arisen since the expiration of the old contract. In sum,
at some point after it was presented with claims that arose
after November 30 and after the claims had first been pro-
cessed unsuccessfully through the local union and the Team-
sters fund office in Chicago, Respondent implemented its
own program and made it retroactive to December 1, 1973.
In that sense, Respondent implemented its program "shortly
after the first of December" or "on December 1, 1973 or
shortly thereafter." After a number of claimants had the
experience described above, they and other employees were
aware of the prevailing situation regarding claims and some
of them relayed this information to the local union.
Following the hiatus in meetings between Respondent and
the Union from the end of September 1973, until the decertifi-
cation petition processing, election, and recertification on
February 28, 1974, the parties agreed to meet on March 7,
1974.
At the March 7, 1974, and subsequent meetings, the princi-
pal union representatives were Baukman and Hammontree,
both assistant business representatives. Respondent was
represented by Vice President Banks and Attorney Harring-
ton. At the meeting on March 7 the Union submitted 10
pages of contract proposals. Among the proposals were arti-
cles on health and welfare and pensions. The proposals pro-
vided for company contributions to the Teamster health and
welfare and pension funds in prescribed amounts and cover-
age of the employees under such funds. This was the coverage
in the old 1970-73 contract between the parties although the
contributions or premiums in the new proposal were higher.
On March 7, the company representatives made no comment
or response regarding the Union's contract proposal on
health and welfare and pensions.
The next meeting was on March 13, 1974. The Company
verbally proposed a pension and welfare plan that, it said, had
already been "set up." Baukman said that the Union would
not consider a verbal proposal and said that any company
proposal should be in writing. There was then some reference
or discussion about certain booklets that described the Com-
pany's pension and health and welfare plans. It was agreed
that the Company would bring the booklets to the next meet-
mg, March 19.
4 Union Representative Baukman's testimony indicates that he under-
stood from indirect sources that when the Teamster fund people rejected the
postcontract claims, they ("our insurance people") advised the claimants to
go to the-Company
5 A booklet describing Respondent's health and welfare program, which
at some undisclosed date in this period was given to employees and later,
on request, was given to the Union, shows that it was punted on "1 /23/74 "
ELLEX TRANSPORTATION, INC.
The evidence is clear, that the Union had become aware
that, after the contract had expired, the Respondent had
ceased making payments to the Teamster health , welfare, and
pension funds. The Union also became aware subsequently,
in the same period, that the Respondent was processing
health , welfare, and pension claims of the employees under
Respondent's own program. The Union made no protest
about the situation from December through February. The
evidence is less than convincing that, on March 13, 1974,
when Respondent informed the Union that it had its own
health, welfare, and pension program in effect and proposed
that such program be adopted for the contract being nego-
tiated, or at any other time during negotiations or otherwise,
did the Union protest the fact that Respondent had unilater-
ally instituted its program.
At the hearing, Union Representative Hammontree was
asked whether on March 13, 1974, he or anyone else had
protested to the Company about the latter's unilateral action
in implementing its own health and pension program. Ham-
montree replied, "Yes, sir, I am satisfied we did." When
asked , Hammontree was unable to recall who made the pro-
test or what was said. He then said that the Union's notes on
the meeting might contain the necessary information. Ham-
montree was asked if he had the notes . He said , no, but Union
Representative Baukman had the notes . When asked again
what was said and by whom by way of protest, Hammontree
said he could not give such specifics but he said "we objected
throughout our negotiations on the health and welfare and
pension plans."
Baukman followed Hammontree as a General Counsel wit-
ness. Baukman testified from, and with, the notes before him,
which he had made at the March 13, 1974, and other meet-
ings with the Company. For many pages of testimony Bank-
man described what had taken place at all the meetings.
There is no mention of any protest by the union representa-
tive to the Company that the latter should not have unilater-
ally instituted its own health and welfare plan from Decem-
ber 1973 on or that the Company should cease the current
coverage of the employees under the company plan. What the
record shows is that, in the negotiations, the Union was
proposing the Teamster health and pension plan for the new
contract. The Company was proposing its own health and
pension plan. Neither party would agree to the other's
proposal but they did reach, eventually, union acceptance of
a company proposal that the employees should decide in-
dividually whether they desired coverage by the Teamster
plan or by the company plan. This tentative agreement, how-
ever, foundered on the lack of agreement over the Union's
condition that if a majority of employees voted for one plan
or another that plan would apply to all employees. The Com-
pany,wanted the choice to remain individual, with the possi-
bility being accepted that some employees would be under the
company plan and some under the Teamster plan, according
to individual choice.
In the light of all the evidence, it is my opinion that, when
Hammontree testified that "we objected throughout our
negotiations on,the health and welfare and pension plans," he
was referring to the fact that the Union objected to, did not
agree with, the Company's contract proposals as to which
health and pension plan should be in the new contract. The
Company did not agree with the Union's proposals, and the
753
Union did not agree with the Company's proposals. But,I find
no convincing evidence that Hammontree , Baukman, or any-
one else protested on March 13, 1974, or at any other time
about the Company's unilateral action since sometime in
December 1973, in extending coverage of its health and pen-
sion program to unit employees in a period when no contract
was in effect.
At the March 19 meeting, the Company did not have the
aforementioned booklets that the Union had requested at the
March 13 meeting but said it would bring them to the next
meeting. The company did bring the booklets to the March
26 meeting and gave them to"the Union.6 The Union under-
stood (correctly) that the booklets covered the plans that
were already in effect for Respondent's unit and nonunit
employees.7 The parties did not then discuss the subject of
health and welfare and pension plans.
On April 9, 1974 , at a meeting of the parties, the Union
submitted a nine-page contract proposal. On health and wel-
fare and pensions the proposal was virtually the same as the
prior union proposal and provided for coverage of the em-
ployees under the Teamster health and welfare and pension
funds. There was no particular comment by Respondent re-
garding the foregoing sections of the union proposal.
The parties met again on April 11. Baukman testified that
the Company had not yet submitted in writing a complete
proposal for a contract but there was much verbal discussion
of issues. The Union then submitted a verbal proposal to the
Company that included the Teamsters health and welfare and
pension fund. The Company expressed interest but was non-
committal.
On April 16, the parties met. The Union submitted a writ-
ten proposal. The parties went through the various items. The
Union proposed the Teamster health and welfare and pension
fund but the proposal set forth company contributions or
premiums at lower amounts than in prior proposals. The
Company had no comment on health and welfare and pen-
sions. Near the end of the meeting Baukman said the Union
had been negotiating and had tried to get a contract but now
it was time to apprise the employees of the situation. He said
that the Union was scheduling a meeting with the employees
for Sunday, April 21. The Company and the Union then
agreed to meet on Friday, April 19.
On April 18, Banks of the Company called Baukman to
cancel the April 19 meeting, saying that, the Company had
not had time to get together a complete proposal to submit
to the Union. Baukman told Banks that the union meeting
with the employees had already been scheduled and the
Union would go ahead with its Sunday meeting.
At the union meeting on April 21, Baukman brought the
employees up to date on the status of the Union's contract
negotiations with the Company. He described the proposals
that had been made by the Company to the Union, including
14 or 15 matters that the Company had submitted in writing.
None of the written items received from the Company and
which Baukman described at the meeting included the Com-
6 There were two booklets One, on pensions, was captioned "Retirement
Income Plan" and shows "Plan arranged by Transportation Insurance
Agency." The other is a booklet on an insurance, health, and welfare plan
underwritten by Aetna Insurance Company for the company employees.
7 These plans were still in effect at the time of the instant hearing
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany's health and,welfare and pension plan.' However,
there was discussion at the meeting about the Company's
health and welfare and retirement (pension) plans that were
currently in effect and which the Company was proposing for
inclusion in the new contract . Baukman told the employees
that the Company plans were "very inferior" to the Team-
sters health and welfare and pension plan, particularly the
Company's pension plan . Baukman said that the Company's
plan was therefore disadvantageous to the employees.
Baukman then told the employees that, in negotiations, the
Company had taken the position that the employees should
have the opportunity to determine for themselves whether
they wanted the Teamsters health and welfare and pension
plan or the company plan. Baukman further informed the
employees at the April 21 union meeting that the union posi-
tion in response to the aformentioned company demand was
that the Union would agree that the employees could deter-
mine whether they wanted the Teamster plan or the company
plan but that the choice was to be determined by a majority
of the employees. In short, if a majority voted for the Team-
ster plan , that plan would be applicable to all; if a majority
voted for the company plan that plan would apply to all. The
Company 's position was that the choice of plans should be on
an individual basis rather than allow a majority of the in-
dividuals to determine the choice of all.9
In addition to health and welfare and pensions , there were
other issues , about five or six, on which the Company and the
Union were apart during their contract negotiations. The
record does not describe these other issues and they are not
before us. Baukman described to the employees at the April
21 union meeting all the respective contract proposals and
positions of the Company , and the Union . A vote was then
taken at the union meeting on the Company 's contract
proposals . It was voted to reject the company contract
proposals , 44 to 6. After this vote , a vote was taken on a
strike. By 47 to 3 it was voted to strike or to authorize a strike.
No specific date was set for the strike and the choice of the
date was left to the union leadership that was negotiating with
the-Company.
The Company and the Union .met on April 22, 1974. At
this meeting the Company stated that, on the condition that
each employee have an individual choice as to whether he
wanted the Teamster plan or the company plan, the Com-
pany was proposing a company contribution or premium to
the health and welfare and pension plan of $11 . 50 and $10.
Up until April 22, the Company's position had been inter
8 It is true that the Company had not submitted a contract provision or
proposal setting forth a contract article on health and welfare and pensions
As we have seen, the Company had given booklets to the Union on March
26, 1974, which described the Company's Aetna insurance and health and
welfare plan and the Company 's retirement income plan (pension). As far
as appears from the booklets and the instant record they were provided by
the Company and were noncontributory , as was the case with the Teamster
plans
9 Under the company proposal , all employees could conceivably choose
either the Teamster plan or the company plan and their choice would be
placed in effect. However, if some employees voted for one plan, these
employees would have that particular plan even though a majority of their
colleagues had voted for the other plan This would mean that two plans
would be operative in Respondent 's business , according to individual choice
of employees.
10 The Company's proposed contribution was a contribution to the Team-
ster health and welfare and pension plan and it represented an increase in
alia, that there would be no increase in its contribution.io
Baukman rejected the company proposal but said that he
would be willing to write to the Teamster fund trustees about
the Company's ' proposal that each individual , employee
should choose which plan he wished .- Baukman testified that,
from past experience , he knew that the Teamster fund would
not accept an arrangement whereby each individual employee
of an employer selected and was covered by either the Team-
ster plan or the company plan according to individual
choice."
The next meeting was on April 26 , 1974. Regarding health
and welfare and pensions, the Company said that it was not
rejecting the Union 's proposal but that the Company was not
ready to accept it.
The union proposal to which the Company had made refer-
ence on April 26 was a .written proposal previously described
above, and which the Union had submitted at an earlier
meeting. That proposal provided for the Teamster health and
welfare and pension fund to cover Respondent 's employees
and with contributions or premium to the fund from Re-
spondent . The Union had also , told the Company verbally
that it would be union position that any employees that had
filed valid health and welfare claims between December 1,
1973, when the old contract expired, and the date of execu-
tion of a new contract , should be compensated in accordance
with the Teamster health and welfare plan. Employee claim-
ants who had been paid pursuant to the company plan during
the aforementioned period should, in the union view, be paid
the difference, if any, in benefits paid by the company plan
and the benefits provided under the Teamster plan. The
Union had also informed the Company that as to employees
who did not have health and welfare claims between Decem-
ber 1, 1973, and the date of a new contract , the Union would
not require that the Company pay any retroactive contribu-
tions or premiums to the Teamster fund ; but, as to employees
who had valid claims, the union position was that the Com-
pany would pay the necessary premiums to the Teamster
fund and make up a difference in benefits as described above.
the contribution or premium that had been paid by the Company to the
Teamster fund under the 1970-73 contract Under the conditions of the
Company's proposal , each employee would select either the company plan
or the Teamster plan and would be covered by the plan of his choice. The
proposed company contribution of, from the plan of his choice. The
proposed company contribution of, for instance, $11 50, meant a contribu-
tion of $11 . 50 per week by the Company for each employee covered by the
Teamster plan and coverage would result only from individual employees
choice.
11 After the April 22 meeting Baukman never did write to the Teamster
fund about possible approval of having employees of,the same employer
being covered by two health and welfare and pension plans, with each
employee selecting a plan of his choice . Baukman's testimony indicates that
there were two reasons why he did not write to the Teamster fund He
evidently believed it would be fruitless since, from past experience , he knew
that the Teamster fund would not approve the dual fund arrangement
proposed by Respondent Secondly , according to Baukman , he never could
get a definite commitment from the Company that the Company would go
along with or abide by a decision of the Teamster fund , i e , Baukman
apparently sought agreement from the Company that if Baukman apparently
sought agreement from the Company that if Baukman submitted the com-
pany proposal of allowing some employees to choose to be covered by the
company plan while other employees chose the Teamster plan, and if the
Teamster fund trustees decided that the fund would not or could not operate
with a two-plan setup in one company, then the Company would abandon
its two-plan proposal and accept the Teamster plan as the sole plan. It may
also be the fact that Baukman had in mind that the Company had refused
to agree that if a majority of the employees chose one of the two plans then
that plan would be the plan for all Respondent's unit employees.
ELLEX TRANSPORTATION, INC.
Regarding pensions, the Union had also proposed coverage
in the Teamster pension fund. Verbally, the Union had fur-
ther informed the Company that, for the period from Decem-
ber 1, 1973, to the date of the new contract, the Union would
not require the Company to pay all the pension fund premi-
ums but only enough premiums to qualify the employees for
eligibility during the period.12
It was with respect to all the foregoing proposals of the
Union, written and verbal, that the Company said, on April
26, 1974, that it was not rejecting the union proposals but that
it was not prepared to accept at that time. The Company did
not explicate its position further.
After April 26, the parties met on May 9, 1974. On health
and welfare and pensions, the positions of the parties re-
mained unchanged." The Company, in effect, took the posi-
tion that a health and welfare and pension provision was
feasible, including the Teamster health and welfare pension
plan, if the Union agreed to the Company's proposed contri-
bu tions or premiums to the plan, which were lower than those
proposed by the Union; and if the employees were afforded
the opportunity to elect individual coverage under either the
Teamster plan or the company plan. The Union reiterated its
position that it was prepared to allow the employees to choose
between the two plans, provided that, if a majority voted for
one plan, that plan would become the sole plan covering all
employees.
On May 14, 1974, there was another meeting and a Federal
mediator was present for the first time. The session was rela-
tively brief with little direct contact between the parties. The
Union gave the mediator a revised schedule and pension plan.
The amounts were lower than in the Union's last prior writ-
ten proposal. As far as appears nothing emerged from this
proposal at the meeting and the Company did not comment
on it to the Union.
The parties met again with the mediator on May 20. The
Company offered a $1 increase in its premium contribution
to the Teamster plan for the employees who chose that plan
and the Company said it would pick up the back premiums
on employees affected by retirement and also back premiums
for health and welfare that had been filed, or, the Company
would pay the difference in benefits under the company plan
and the Teamsters plan for such claimants. This was appar-
ently unacceptable to the Union because it was conditioned
on the Company's proposal that the employees individually
choose which plan each employee desired. At a later point
Baukman testified that the Company's position never
changed on the last-mentioned aspect.
The Union thereafter, pursuant to the employees' strike
vote on April 21, 1974, instituted a strike on June 2,
1974.14
The parties met during the strike on June 28, 1974, with
the mediator. This was their last meeting. At this session, the
12 As explained by Baukman, under the Teamster pension fund, an em-
ployee would be qualified for a full year even if, for instance, he was not
covered by premiums paid in for 12 months Although Baukman did not
know precisely, it was evidently his understanding that if the Company paid
premiums, for instance, for 6 months on an employee, that employee would
have a full year's eligibility in the Teamster pension . This minimum payment
of premiums for the period referred to was what the Union had proposed
13 In all these meetings there were other contract issues outstanding
between the parties.
14 The strike is still in effect
755
Company offered in addition to its last previous offer, an
increase of $1 in company contribution or premium to the
Teamster health, welfare, and pension fund for the second
year of any contract arrived at but the $1 would be made to
either the Teamster pension fund or to the health and welfare,
but not both. -
Analysis and Conclusions
It is alleged in the complaint that since November 10, 1973,
the Union has been the certified bargaining representative of
Respondent's employees in the described appropriate unit
and that, pursuant to a decertification election on February
15, 1974, the Union was recertified on February 28, 1974.
Respondent's answer admits the foregoing. The complaint
further alleges that since November 10, 1970, the Union has
been the collective-bargaining agent of the employees in the
aforementioned unit and has been and is the exclusive repre-
sentative of all employees in the unit. Respondent's answer
contains a simple denial of this allegation.
The crux of the complaint, the allegation of the unfair labor
practice, is specific and limited to the allegation that Re-
spondent has refused to bargain collectively with the Union
"in that" on or about December 1, 1973, Respondent "unilat-
erally" instituted and implemented for employees in the unit
a pension program and a health and welfare program without
notification to or consultation with the Union. Respondent's
answer denies this allegation and in succeeding paragraphs
alleges affirmative defense.15
At the hearing the General Counsel presented his case in
accordance with the scope and theory of the complaint. No
attempt was made to amend the complaint or to litigate other
issues or other kinds or types of illegal conduct. The General
Counsel's brief is consonant with the foregoing.
The Union, at the hearing, sought to introduce evidence of
violations of the Act by Respondent that, in addition to the
allegations and conduct introduced by the General Counsel,
would purportedly show that Respondent engaged in surface
bargaining, and that would purportedly show that a company
official or officials circulated and solicited support for the
deauthorization and decertification petitions from em-
ployees. I sustained Respondent's objection to evidence in the
above areas as being beyond the scope of the complaint. 16
I adhere to the above ruling. Surface bargaining (i.e., Re-
spondent met with the Union but only went through the
motions of bargaining as would (allegedly) appear from going
into the details of various offers, proposals, and so forth or
the lack thereof, and Respondent did not bargain in good
faith in an effort to reach agreement) is a violation of Section
8(a)(5) and (1) of the Act and is appropriately to be alleged
as such. The complaint contains no such allegation.
The other area envisaged and assayed by the Union, i.e.,
employer participation in, and active support of, the
i s The complaint also alleges that the strike which began on June 2, 1974,
was caused by the unfair labor practices alleged in the complaint, described
above, and, in effect, that the strike was therefore an unfair labor practice
strike. Respondent's answer denies this.
16 Although the factor would not have been determinative in the circum-
stances herein, even if present, there was no claim by the Charging Party
that the areas that it sought to litigate arose because of newly discovered
evidence.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
deauthorization and decertification petitions, if alleged and
proved , is also a well-recognized type of illegal conduct, and
would constitute -a violation of Section 8(a)(1) of the Act.
This type of evidence could also be important in evaluating
the legal effect of a decertification movement and petition
under such circumstances , insofar as the bargaining rights
and obligations of the Company and the Union was
concerned ." But, again , the instant complaint contains no
such allegations and is limited to the narrow ground of unilat-
eral action in instituting certain health , welfare, and pension
plans. 18
In its brief, the Charging Party further argues that the
ruling excluding the above proffered areas of unfair labor
practices was in error. The brief refers to the scope of the
charge as -justification for the - admission of such evidence.
The charge alleges Section 8(a)(1) and (5) violations in
that, since January 1, 1974 , Respondent has interfered with,
restrained , and coerced employees in the exercise of their
rights guaranteed in Section 7 of the Act. That this is a broad
allegation is obvious . The charge also states that since Janu-
ary 1 , 1974 , the Respondent has refused to bargain with the
Union "by engaging in conduct designed to undermine the
status of said labor organization as bargaining agent."
The quoted language above , it can be said, is borne out and
pleaded in the allegations of the complaint since, clearly, the
unilateral conduct alleged in the complaint could be said to
have been designed to, and to have the effect of, undermining
the status of the bargaining agent. It can also be said that the
quoted phrase could arguably support complaint allegations
of the additional type of conduct that the Charging Party
sought unsuccessfully to litigate at the hearing before me.
The charge, however , is not a pleading and serves only to
set in motion the investigatory process of the Board 's General
Counsel . The complaint issued by the Board 's General Coun-
sel, after investigating the charge, in the pleading, and it is the
complaint that frames the issues.19
The instant complaint , in my opinion , does not frame the
" In Condon Transport, Inc., 211 NLRB 297 (1974), the complaint
alleged 8(a)(1) and (5) violations. The 8(a)(1) allegation was that the re-
spondent "independently violated Section 8 (a)(1) of the Act by unlawfully
assisting employees in the filing of a decertification petition ." The evidence
was found to sustain the allegation and it was held that because of this fact
the decertification petition was removed as a viable factor in the Section
8(a)(5) refusal to bargain aspect of the case
18 The Board held in Moffitt Building Materials Company and Lumber-
mans Wholesale Company, 214 NLRB No 110 (1974), that "the complaint
was specific in alleging a refusal to bargain only" in that "Respondent did
refuse and is refusing to bargain with the union concerning the discontinu-
ance of Moffitt Building Materials Company and the effects of the discon-
tinuance on employees," therefore "we must conclude that the issue of
whether Respondent refused to bargain with the union concerning the griev-
ances and not properly before the Administrative Law Judge ." It was further
held that a refusal to bargain with the Union for a new contract "was not
alleged in the complaint" and the Board reversed the Administrative Law
Judge's finding that Respondent had violated Section 8 (a)(5) of the Act in
that respect.
i9 "A charge filed with the Labor Board is not to be measured by the
standards applicable to a pleading in a private lawsuit. Its purpose is merely
to set in motion the machinery of an inquiry [citation omitted] . The respon-
sibility of making that inquiry and of framing the issues in the case is one
that Congress has imposed upon the Board, not the Charging Party."
N.L.R.B. v Fant Milling Company, 360 U.S 301 (1959). The cases cited by
the Charging Party in its brief on this point are cases dealing with the issues
of whether a, complaint could alleged matters not specifically alleged in the
charge This is not the issue of a Charging Party litigating against a Respond-
ent matters not alleged in the complaint
8(a)(1) and (5) issues other than as alleged and the allegations
do not encompass the additional 8(a)(1) and (5 ) issues that
the Charging Party sought to litigate at the hearing.20
Briefly stated , the material facts with respect to the issues
framed by the complaint are that the contract was -expiring
as of November 30, 1973; the Union sent a proposal for a new
contract to Respondent ; the parties met preliminarily in the
latter part of September 1973, and arranged to begin contract
negotiations in October ; and meanwhile, a deauthorization
petition had been filed with the Board on September 28, 1973.
The parties agreed not to hold their October meeting and also
agreed "that after an election we would get into negotiations
on the contract." The decertification petition was filed on
December 3, 1973, and the election was held on February 15,
1974 ; the parties did not meet from the latter part of Septem-
ber 1973 until March 1974, having awaited the outcome of
the decertification movement, petition , and attendant elec-
tion.
Although the deauthorization petition preceded the decer-
tification petition in time of filing with the Board, the former
was not processed to conclusion and no deauthonzation elec-
tion as such was held. The Charging Party in its brief notes
that the decertification petition and election "superseded the
deauthorization petition...." I am satisfied that the Charg-
ing Party is correct in stating that the deauthorization peti-
tion was superseded by the decertification petition and elec-
tion and that in effect the major issue of decertification was
the prevailing cause of the long hiatus in negotiations.
Experience teaches that prior to the actual filing with the
Board of a decertification petition, considerable prior activity
takes place. The employees advocating decertification of a
union must initially prepare some kind of document or peti-
tion to be signed by employees supporting the filing of a
formal petition with the Board . The Board's rules and regula-
tions require that such a petition must be shown to have the
support of at least 30 percent of the unit employees at the time
it is filed . In practical effect this requirement means that the
initiators of the decertification movement must preliminarily
approach employees in the unit to have them sign a properly
20 Speaking generally , a party filing a charge will usually present and be
asked to present all evidence and evidentiary "leads" that it has in support
of the charge This situation will usually continue throughout the Board's
investigation of the charge The Board agent will also investigate relevant
related areas that are encompassed by the charge even if such areas have not
been delineated specifically in the charge The complaint that issues after
the investigation is, not infrequently , broader than the specifics in the charge
and, also, not infrequently, the complaint may be narrower than the charge.
The usual reason for the latter situation is that the General Counsel, after
investigation , has concluded that the evidence does not support all the
allegations in the charge Decisions not to proceed on a charge , in whole or
in part, are appealable to the Board's General Counsel in Washington, D C
Evidence that may belatedly come to the General Counsel 's attention after
issuance of a complaint may be handled by an amendment to the complaint
under appropriate procedural rules and according to circumstances that vary
with the stage at which the amendment is made or attempted and with other
relevant considerations.
If the rather general allegations of the instant charge could be said to have
put Respondent on notice that it was charged with ( 1) illegal unilateral
institution of a health and welfare program , (2) illegal surface bargaining;
and (3) illegal sponsorship and support of a decertification petition, as the
Charging Party apparently argues, then the complaint , on which the parties
went to trial, would lead Respondent to the valid conclusion that allegations
(2) and (3), above, of the charge , has been dropped, since the complaint and
the General Counsel 's case as presented was confined to allegation (1),
above, the unilateral action
ELLEX TRANSPORTATION, INC.
worded document that indicates support. Securing the neces-
sary number of signatures can be timeconsuming, particu-
larly where, as in the instant case, the unit employees, or
many of them, have the mobility characteristic of truckdriv-
ers and work at employer terminals in five States. Further,
some advocacy and discussion is usually entailed in securing
signatures for decertificaiton since employees may not im-
mediately be prepared to take a definite position on such an
issue and this may entail delay in securing the requisite num-
ber of signatures (in the decertification election held on Feb-
ruary 15, 1974, the vote was 73 for the Union and 71 against).
The securing of signatures from employees is of such a
nature that it necessarily means that the employees become
aware of the decertification movement. Some or many or a
majority of the employees, as in the instant case, are evidently
loyal to the Union. It is a fair inference, therefore, that the
Union, through its members, was aware of the decertification
movement prior to the time when the formal petition, with
30 percent or more employee support, was actually filed with
the Board. The same inference is applicable to the employer.
Foreman and other supervisors close to the employees would
be aware of a decertification movement among the employees
and would have heard of it prior to the filing of a formal
petition with the Board. This would be true because of the
time element and the mechanics of a decertification move-
ment as described above. It would also be true that sponsors
and supporters of a decertification would usually not seek to
conceal the movement from the employer. This would be
based on the general assumption that decertification would,
in some instance, have the tacit approval, if not more, of the
employer.
In short, while the hiatus in negotiations began as a result
of the filing of the deauthorization petition, the parties soon
became aware of the decertification movement both before,
on, and after December 3, 1973, when the decertification
petition was actually filed with the Board. The deauthoriza-
tion petition was never processed to the election stage and the
issue of deauthorization was merged into and superseded by
the decertification matter since, if the Union was decertified,
the deauthorization issue would also be disposed of. By
mutual agreement the parties agreed "that after an election
we would get into negotiations on the contract." The election
was the decertification election that was subsequently held on
February 15, 1974.
When the parties suspended negotiations for a new con-
tract until the deauthorization and decertification matter was
resolved, they were both aware that the existing contract
would expire by December 1, 1973.21 Although the Union
in September 1973 had sent the Company a general or
prelliminary proposal for a new contract to succeed the expir-
ing contract, neither party proposed or discussed with the
other any measures that were to be taken regarding coverage
of the employees in the period of the hiatus of negotiations
after the old contract expired on November 30, 197,3.22
21 The old contract ran up to and including November 30, 1973, a Friday
December 3, 1973, was a Monday
22 Neither party proposed, for instance, extension of the old contract for
60-i'0-120 days or whatever, or until the deauthorization and decertifica-
tion issue was resolved by an election Nor was there any proposal for either
continued payment or nonpayment of health, welfare, and pension premium
757
The health- and welfare and pension coverage of the old
contract was a contractual matter providing for specific em-
ployer contributions to named Teamster funds. It was further
provided in the old contract that "by the execution of this
agreement" the employer authorized "the Employer's
Associations"23 to enter into appropriate trust agreements
necessary for the administration of the Teamster Funds; and
the employer also, by its contract with the local Teamster
union , designated the employer 's associations to designate
trustees under the agreements, waiving all notice thereof and
ratifying all actions taken or to be taken by the trustees within
the scope of their authority. All these matters, including the
contract with the local union; the contributions specified; the
agreement in the contract with the local union; that, by the
execution of the contract with the local union, the employer
was designating and granting authority to an employers' as-
sociation to enter into trust agreements and to designate trus-
tees; and that the employer was also, by the same factor,
waiving all notice of the above actions by the association "and
ratifying all actions already taken or to be taken by such
trustees within the scope of their authority," were matters of
contract set forth in a contract that expired by December 1,
1973. These terms of the expired contract were not in the
nature of perpetuities. They were not automatically or other-
wise renewed.24
In my opinion, Respondent 's legal obligation regarding
contributions, and so forth, under the Teamster health, wel-
fare, and pension funds expired on November 30, 1973.
Moreover, the complaint does not allege that the Respondent
unilaterally and illegally ceased contributions and coverage
under the Teamster funds on November 30 or on December
1 or at any other time in violation of the Act.25
contributions by the employer to the Teamster fund after the old contract
expired
23 These employers' associations are evidently associations in the industry
with whom the Teamsters have national agreements including trust funds
national in scope
24 I also take note that Sec 302 of the Act makes it unlawful for an
employer to pay money to any labor organization or its representatives that
represent or seek to represent the employer 's employees. It is also unlawful
for any person to demand or accept such proscribed payments This inter-
diction is subject to certain specific exceptions in Sec . 302(c), including
payments to trust funds established by a labor organization representing the
employees , with the proviso that "(B) the detailed basis on which such
payments are to be made is specified in a written agreement with the em-
ployer .. .
25 Reuben R. Miller, et aL, d/b/a Sioux City Bottling Works, 156 NLRB
379 (1965), cited by the Charging Party's brief, contains language in the
Trial Examiner's Decision appropriate to the facts of the case but not other-
wise Thus there is language to the effect that "the termination of the
Teamster health and welfare and pension funds and the substitution of
another type of health and accident insurance" was not action that the
employer could take "without consulting the majority representative of the
employees ." The union and employer had had a contractual relationship for
over 20 years The last contract expired June 1963, Negotiations for a new
contract were held in the summer and fall of 1963 . No agreement was
reached . The parties next met in November 1963 when it was agreed that
the employer would place in effect wage and other increases offered earlier
and that the employer would operate in the interim without a written con-
tract . The employer continued to check off dues of union members and
remitted the dues to the union until August 1974 The employer continued
its payments to the Teamster health and welfare fund . In June and July
1964, the parties again discussed a new contract but agreement was not
reached Subsequent to the last meeting of the parties on August 6, 1964,
the employer paid its obligation to the Teamster health, welfare, and pension
plan for July 1964 but ceased payments thereafter On October 1964 the
employer established its own health and accident plan. It is apparent from
(Continued)
758 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
Absent agreement on a new contract and since neither
party had proposed any interim coveragd, Respondent's em-
ployees would presumably have been without coverage on
health, welfare, and pensions, after expiration of the contract
on November 30, 1973. Since the instant complaint does not
allege that Respondent unilaterally and illegally terminated
its premiums and contributions to the Teamster funds after
November 30, 1973, it may be that Respondent would have
been viewed as not acting illegally if it simply had no coverage
of its employees with respect to health, welfare, and pensions
after November 30. Be that as it may, Respondent unilater-
ally instituted and implemented a health, welfare, and pen-
sion plan of its own shortly after expiration of the old con-
tract. This conduct is alleged to constitute a violation of
Section 8(a)(5) and (1) of the Act.
It is well established as a general proposition that, or-
dinarily, it is a violation of Section 8(a)(5) and (1) of the Act
for an employer to unilaterally change wages, hours, or con-
ditions of employment without affording the collective-bar-
gaining agent an opportunity to bargain about such proposed
changes.26 This legal doctrine is, however, materially af-
fected in situations where there are rival or conflicting claims
that raise a question concerning representation. Of course, a
rival claim would exist where near the end of an existing
contract or upon expiration of a contract or at other appropri-
ate time, a union, other than the incumbent, claims that it
represents the employees and files a petition for certification.
A conflicting claim could typically be a movement and claim
by employees asserting that the incumbent certified union no
longer represents a majority of employees. Such a claim
would be brought to a head by the filing of a decertification
petition.21
More than 20 years ago the Board affirmed that "the filing
the foregoing facts that, in the period after the old contract expired in June
1963, the parties had extended and operated under what was in effect an
indefinite extension of the Teamster health, welfare, and pension plan, in-
cluding employer contributions , as well as dues checkoff, and new mutually
agreed-upon wage increases and other benefits. This extension of interim
agreement continued until August 1974, at which time the employer unilat-
erally ceased its payments to the health, welfare, and pension fund and then
established its own program. The facts of the case clearly distinguish it from
the instant case and the language in Sioux City, above, is to be read as
addressed in the particular facts of that case It also appeared that the cases
cited to support the above decisional language in Sioux City are cases
dealing with very simple unilateral action situations . Briefly summarized,
Kenneth B McLean, d/b/a Ken's Building Supplies v. NL.R B. 333 F.2d
84 (C A 6, 1964), involved a no-prior-contract situation: the union
proposed a health and welfare plan, and thereafter the employer unilaterally
instituted its own plan; N.L R.B. v Wonder State Manufacturing Company,
344 F 2d 210 (C.A 8, 1965), involved a no-prior-contract situation, where
during contract negotiations the employer granted - a unilateral wage in-
crease to employees; Montgomery Ward, & Co., Incorporated, 90 NLRB
1244 (1950), involved a situation where the employer, 5 days after submit-
ting a contract proposal to the union , precipitously granted a wage increase
to employees and then, without discussion with the union , made changes in
employee benefit plan; in General Motors Corporation, 81 NLRB 779
(1949), the employer unilaterally instituted an insurance plan during
negotiations, in W W Cross and Company, Inc., 77 NLRB 1162 (1948), the
employer informed the union that the retirement plan was not subject to
negotiation with the union thereafter the employer acted on the retirement
plan unilaterally. -
26 NL.R.B. v Katz, et al., 369 U S 736 (1962).
27 Conflicting and rival claims might also be present where two or more
unions seek to organize an unorganized plant and file either two petitions
for certification or one union intervenes in a pending certification petiiion
of a rival union.
of the -petition [where there was an incumbent union] raised
a prima facie question concerning representation which, un-
der the `Midwest Piping' doctrine,28 precluded it [the
employer] from bargaining further with the incumbent union
during the pendency of the petition. . . . We also pointed out
that, in continuing the established relationship with an in-
cumbent union, an employer runs the risk of an unfair labor
practice finding if the Board later determines that the petition
raised `a real question of representation.' It would therefore
be manifestly unfair to require an employer who has engaged
in no antecedent unfair labor practice to bargain at his peril
during the pendency of a timely petition." Accordingly, the
Board held that the employer did not violate Section 8(a)(5)
and (1) of the Act by refusing to resume negotiations with the
incumbent union and by unilaterally increasing wages and
employee benefit plans. National Carbon Division, Union Car-
bide and Carbon Corporation, 105 NLRB 441, 442-443
(1953); 100 NLRB 689, 698-699 (1952).29
In Shea Chemical Corporation, 121 NLRB 1027, 1029
(1958), the Board held that "upon presentation of a rival or
conflicting claim which raises a real question concerning rep-
resentation, an employer may not go so far as to bargain
collectively with the incumbent (or any other) union unless
and until the question concerning representation has been
settled by the Board.""' Citing the foregoing language of the
Shea case, the Board went on to state in Telautograph Corpo-
ration, 199 NLRB 892 (1972), that: The same should be
applied where a real question concerning representation has
28 Midwest Piping and Supply Co, Inc., 63 NLRB 1060 (1945)
29 Briefly stated, the relevant factors in the cited case (see 100 NLRB 689,
705-707), were that union A had been certified on May 7, 1945 The status
of union A remained recognized, undisturbed, and unchallenged until 1949.
During negotiations with A in August 1949, the employer disclosed that it
was aware of activity and of a claim by union B to represent employees but
the employer stated that it intended to continue negotiation discussions with
A On September 12, 1949 , union B filed a petition for certification On
September 27, 1949, the employer informed A that it would no longer
bargain with A Union B's petition was dismissed by the Board's Regional
Director on March 30, 1950 The employer thereafter unilaterally made
changes in wages and employee benefit plans about which it had previously
been negotiating with A. So far as appears, the employer had never used the
oft magic words that it had a good-faith doubt of A's majority status The
Board's decision, quoted above, dealt with the effect of the representation
activity and the petition of union B on the employer's relationship with
union A. The decision also dealt with the dismissal of B's petition, and
element not present in the instant case where the petition - was processed
through the ultimate step of holding an election. The decision found that the
dismissal of the petition was not determinative The Board noted that the
petition was dismissed, not because it was -unfounded "but because of the
pendency of certain charges filed by the union [A] whichhave been found
herein to be without merit." Under such circumstances the Board found that
dismissal of the petition did not change the situation of the employer since
otherwise an incumbent union could "perpetuate its majority status by filing
charges which after litigation were found to be groundless." See also
NL.R B. v. Signal Oil and Gas Company, 303 F 2d 785 (C A. 5, 1962),
citing National Carbon, above, in In 3 of the court's decision
30 An employer is obliged to continue to recognize and to bargain with
an incumbent union over, the administration of their existing contract, de-
spite the filing of a petition by a rival union Duralite Co, Inc., 132 NLRB
425, 427 (1964). In the instant case, Ellex, the unilateral action of the
Employer alleged in the complaint took place after the expiration of the
contract and during a period when a deauthorization petition was merged
with and was superseded by a decertification petition and during a period,
when, by mutual agreement, the Employer and the Union held negotiations
in abeyance until the status of the Union was resolved by an election pursu-
ant to the decertification petition.
ELLEX TRANSPORTATION, INC.
been raised by the timely filing of a decertification
petition.31
In the instant case, prior to December 1, 1973, the date by
which the old contract had terminated, the Union and the
Respondent were aware that the Union's status was under
challenge by-reason of deauthorization and decertification
activity by employees. The challenge culminated on Monday,
December 3, 1973, the first working day after Friday,
November 30, 1973, the last day on which the old contract
had been in effect. The employee decertification petition was
filed on December 3, 1973. Negotiations between the Union
and Respondent, which had been mutually suspended since
the end of September 1973, remained suspended until and
after the decertification election on February 15, 1974.
Although Respondent called no witnesses at the instant
hearing and presented no defense as such, the evidence that
is contained in the record before me cannot be ignored. Nor
am I free to ignore the legal principles that apply to the
evidence in the record. The legal consequences flow from the
eivdence before me and from the legal principles applicable
thereto.
As earlier described, in the period following the expiration
of the old contract, when negotiations between the Union and
Respondent were in suspension and when a question of repre-
sentation was pending, various employees presented health
and welfare claims to the local union as was provided and as
the practice was under the old contract. The local union
processed the claims to the Teamster fund in Chicago and
learned thereby that Respondent had ceased after November
30, 1973, making payments to the fund as formerly provided
in the expired contract. The next happening in this period of
days and weeks was that Respondent then implemented the
coverage of its nonunit health, welfare, and pension programs
and extended their coverage to the unit employees when
claims were presented to the Company. In practical conse-
quence, this meant the postcontract claims were processed
under the employer programs.
The Union became aware of the situation albeit not from
any communication to it by Respondent.32 In December,
January, and February, the Union, although aware of the
foregoing state of affairs, did not ask Respondent about the
matter; it did not protest or object during that period nor did
it protest Respondent's unilateral action in the period of
negotiations that began on March 7 and 13, 1974, and there-
after; it did not advise its members and employees not to
present their claims for processing under Respondent's pro-
31 In Telautograph, the Board held "that the decertification petition,
supported by an adequate showing of interest . raised a question concern-
ing representation " It was further held that the employer had not violated
Sec 8(a) (5) and (1) of the Act since the employer, as found by the Admims-
trative Law Judge in his Decision that the Board enforced, "was not legally
obligated to bargain with the [incumbent] union . ", and this was not
because of "any objective considerations of good-faith doubt concerning the
Union's continuing majority" but because "a question concerning represen-
tation existed, foreclosing Respondent from dealing with the [incumbent]
Union . "
32 Awareness and knowledge are facts The method and means by which
awareness and knowledge are acquired constitute a difference set of facts
The United States was aware that on December 7, 1941, Pearl Harbor was
being attached and had been attacked There was no precedent or subse-
quent announcement by the Government of Japan of the facts of which the
United States was aware The United States responded to the known factual
situa Lion
759
grams; it did not undertake nor did it advise its members that
the Teamster fund would honor their claims in the interim
absent employer contributions. In the light of the foregoing
facts, and if tacit and passive acceptance and absence of oppo-
sition equate with acquiescence in the state of affairs that
came into being and existed after the expiration of the con-
tract and during the suspension of negotiations pending the
decertification election, and in the period of renewed negotia-
tions beginning on March 7, 1974, then the Union acquiesced
in the state of affairs.
It is my opinion that on the evidence in the record before
me and in the light of the applicable legal principles set forth
in cases cited above, the Respondent has not violated Section
8(a)(5) and (1) of the Act as alleged in the complaint. Follow-
ing the expiration of the old contract and while a question of
representation was pending, which question was not resolved
until February 15, 1974, Respondent was under no legal
obligation to bargain collectively or to negotiate with the
Union. Shea Chemical Corp., above; Telautograph Corpora-
tion, above. Consequently, Respondent's unilateral action in
instituting and implementing health, welfare, and pension
programs for unit employees was not illegal.
Having found that the evidence does not support the Sec-
tion 8(a)(5) and (1) allegations of the complaint and that the
conduct alleged therein was not illegal, I also find that the
complaint allegation that the strike "was caused by the unfair
labor practices" alleged in the complaint is not supported by
the evidence since the conduct alleged in the complaint has
been found not to constitute unfair labor practices. The strike
therefore was not an unfair labor practice strike.33
33 If, arguendo, it had been found that Respondent had violated Sec
8(a)(1) and (5) by its unilateral implementation of its own health and pen-
sion plan since December 1973, it does not follow that this unilateral con-
duct was one of the causes of the strike. The cause or causes of a strike are
factual matters. It is not as simple as post hoc, ergo propter hoc.
Neither at the union meeting on April 21, 1974, at which the strike vote
was cast, nor at any other time, does the record reveal that the union
representatives or the union members mentioned in words or in substance
that the employer had, since December 1973, implemented unilaterally and
unlawfully its own health and pension plan and that this was a reason for,
or a cause of, the strike. On direct examination, the General Counsel asked
Baukman
Q. What was the purpose of that meeting [April 21] with the em-
ployees?
A. The purpose was to present a proposal, a proposed offer for a
contract [from the Company] and to take a vote on a contract
[proposal].
The April 21 union meeting involved a presentation by Baukman of the
respective proposals by the Company and the Union for the terms of a new
contract The parties were apart on about six issues, including a health,
welfare, and pension provision As described by Baukman at the union
meeting, the Company was proposing that the current company plan on
health, welfare, and pensions , including employee choice of plans, should be
the plan in the new contract. The Union's position was that the Teamster
health, welfare, and pension plan, with specified employer contributions
thereto, should be in the new contract Baukman pointed out at the union
meeting that the company health and pension plan was inferior to the
Teamster plan and less advantageous to the employees. Baukman also in-
formed the members at the meeting of the company proposal for employee
choice of the plan the employee wished to have and of the union position
of majority determination by employees on this matter of allowing employee
choice.
Continued
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSION OF LAw authorize the union leadership to call a strike . On the evidence in this
record, it is apparent that the votes at the meeting were focused entirely on
- the terms for a new contract and insofar as the vote to reject the company
Respondent -has not violated Section 8 (a)(1) and (5) of the proposal on health and pensions (and as far as appears on other proposals)
Act as alleged in the complaint . the rejection was on economic grounds and the strike vote was premised on
[Recommended Order for dismissal omitted from
the same basis There was no discussion and no vote at the meeting about
the unilateral coverage of the employees in the company health and pension
publication .] plan since December 1973, and up and through the date of the April 21
meeting . No one was advocating or voting on a rejection of employee
coverage in the company program during the interim from the expiration of
the old contract The only matter that they voted on on April 21 was the
After the company proposals and the union proposals on about six out- terms of a new contract They voted to reject the company proposals and
standing issues, including a health , welfare, and pension provision , were to support the union proposals and to strike to bring about a new contract
described by Baukman and were discussed , the employees at the meeting with the terms the Union advocated or with terms reasonably approximate
voted to reject the company proposals for a contract . They also voted to thereto