Howard Disposal Corp.

National Labor Relations Board - Board Decisions

Nov 23, 1965

155 N.L.R.B. 1108 (N.L.R.B. 1965)

1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohio Power case as contended by Respondent is unnecessary to decide since I am
of the opinion that the authority conferred by Respondent on its control room super-
visors here exceeds the authority that the control room operators had in Ohio Power
and as such meets the supervisory requirements of the Act.
The only question then is whether or not the authority conferred by Respondent
here is genuine and has been added in good faith 12 and not for the purpose of avoid-
ing its bargaining obligation under the Act. There is no basis that I can find in this
record to question Respondent's good faith. Indeed, the Union itself recognized the
need for additional supervision here and proposed to Respondent that an additional
supervisor be added to its work force. Accordingly, I find that the control room
supervisors in question are supervisors within the meaning of the Act and as such
are not part of the bargaining unit. Thus, Respondent's refusal to bargain with the
Union regarding their wages, hours, and working conditions does not violate the
Act.li In view of the foregoing, I shall recommend dismissal of the complaint.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case , it is recommended that the complaint herein be dis-
missed in its entirety.
12 It is well settled that an "employer cannot make a supervisor out of a rank and file
employee simply by giving the title and theoretical power to perform one or more of the
enumerated supervisory functions . The important thing is the possession and exercise of
actual supervisory duties and authority and not the formal title ." N.L.P.B. V. South-ern
Bleachery & Print Works , Inc., 257 F . 2d 235, 239 ( C.A. 4), cert . denied 359 U.S. 911.
18 In reaching this conclusion , I am fully aware of the highly automatic nature of the
work here . I have also discounted to some extent the Increase in the size and capacity of
the plant In the light of the increased automation coming with the addition of unit No. 5
including the use of computers . Nevertheless . in view of the overall value of the installa-
tion here and of the terrific responsibility vested in those who run it, I can well under-
stand why Respondent would want detailed and closer supervision of its operations closely
aligned with the interests of management.
Howard Disposal Corp. and Local 379, International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case No. 1-CA-4645. November 23, 1965
DECISION AND ORDER
On March 9, 1965, Trial Examiner John F. Funke issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
not engaged in unfair labor practices as alleged and recommending
dismissal of the complaint in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General Counsel and the
Charging Party filed exceptions to the Decision and supporting briefs,
and the Respondent filed a reply brief.
155 NLRB No. 96.
HO'"TARDDISPOSAL CORP., 1109
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the -1 ational Labor Relations Board has
delegated its powers in connection with this case. to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings inade by the Trial Examiner at
the hearing and finds that no preju dicial error was committed. The
rulings are hereby a_f_lrmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs; and the entire record
in the case. and finds merit. in the exceptions of the Charging Party
and General Counsel. Accordingly, the. Board adopts the Trial Exam-
iner's findings only to the extent consistent with its opinion hereafter,
and does not adopt his conclusions or recomme nations.
The facts, herein summarized, slow that for several Years the
Respondent has been a member of an i for lnal multiemplorer bargain-
ing group of refuse disposal Prins which, for many Years, bargained
jointly with the Union and executed separate but identical collective-
bargaining contracts. In 1962, 10 of the 11 inennbers secured refuse
disposal contracts from the city of Boston, effective -For a period of
1 year from April 1. 1962, with the option of the city of Boston to
renew them for successive Yearly Periods. In 1962, following joint
negotiations. the member firms again executed separate but identical
2-year contracts with the -Union, effective from April 1, 1962, to
March 31, 1964. Article X of the contracts read as follows :
The. terms and co editions of this Agree-meilt. shall continue in
force and bind both parties from April 1. 1962, to March 31, 1964;
prov'_ded the City of Boston, Public Works . Department e ^e_C_ s
its option and renew-s the present contract with all of the con-
tractors presently parties. to this Agreement ? ith the Unio-= ,.
containing the . same terms. and conditions as the insta It agree-
^^
1lnellt. In :.112 event the City of BCStO i does not exercise said
option with respect to any or all said contractors then this Agre --
nhent shall terminate as of v-?arch 31, 1963.
In January and February 1964-, the bargaining group negotiated
new 4-year contracts with the Fnion, effective a pril 1, 1964, to
March 31, 1968. The language of article X of the 1962 contracts
was omitted from these contracts. The Respondent's representative
attended the negotiating sessions and voiced no evidence reservation or
dissent during the proceedings. Of the. eight signatories to the 1962
contracts who in 1964 still had employees subject to the coverage, of
the bargaining unit, all except the Respondent and one firm which
had no disposal contract with the city of Boston in 1962 were awarded
new contracts with the city of Boston as of April 1. 1964. All of these
1110 DECISIONS OF - ATIONAL LABOR RELATIONS BOARD
employers also signed the newly negotiated collective-bargaining con-
tracts with the Unionexcept the Respondent, whose refusal was based
on its failure to receive a new trash disposal contract from the city of
Boston.1
The Trial Examiner concluded that the Respondent's obligation to
execute the 1964 bargaining agreement was contingent upon a renewal
of the city of Boston's contract with the Respondent and that, as this
renewal did not occur, its re-fusal to sign the contract was not a viola-
tion of Section 8(a) (5). He therefore recommended dismissal of the
complaint. We do not agree.
On the contrary, we note the following facts: The language of
article X of the 1962 contract, the so-called contingency clause, does
not appear in the 1964 contract even though the negotiations thereon
were concluded before the award of the Boston disposal contracts.
At least one member firm did not contract with the city of Boston
regarding refuse disposal work, yet it signed both the 1962 and 1964
collective-bargaining contracts. We also note that the income for
some member firms from commercial work considerably exceeds their
income from municipal work, and the collective-'.oargaining contracts
covered all drivers, whether engaged in municipal or commercial work.
More importantly, although the Respondent could have timely raised
the question of whether it would be bound by the results cf the group
bargaining absent a. Boston disposal contract award, or requested the
inclusion of the contingency clause utilized in the previous contract,
it instead remained silent, notifying neither the Union nor an of
the other bargaining group members of its position in that regard
and attending the joint negotiating sessions for the 1964 contract
without voicing any evident dissent or reservations as to the results
reached. In these circumstances, we view an attempted withdrawal
from the consequences of group bargaining as untimely 2
Accordingly, we find, contrary to the Trial Examiner, That the
Respondent, by its refusal to sign the 1964 contract, has violated
Section 8 (a) (;) of the Act.
The Effect of the Unfair Labor Practices
The activities of Respondent occurring in connection with its busi-
ness operations have a close, intimate, and substantial relation to trade,
1 Nine employers signed the new 1964 bargaining contracts, including the eight above-
mentioned signatories to the 1962 contract and one new employer who did not participate
in the 1964 negotiations. Of the remaining three signatories to the 1962 contracts, one
became a family operation, the second laid off all its employees, and the third no longer
has employees in the Union's bargaining area.
2Ariel Ofaet Co., Inc., 149 NLRB 1145. Fairbanks Dairy, Division of Cooperdale Dairy
Company, late., 146-NLRB 893.
HOWARD, DISPOSAL • CORP.
traffic, and commerce among the several States, and._tend to :.lead to
labor disputes burdening and obstructing commerce and the free flaw,
of. commerce. -
THE .R 31EDY
As the Respondent has engaged in certain unfair labor practices,
it shall be ordered to cease and desist therefrom and to take certain
affirmative action designated to effectuate the policies of the Act.
.
As the Respondent has unlawfully refused to execute a collective-
bargaining contract concluded as a result of group` negotiations in
which itwas a participant; the Respondent shall be ordered, upon the
Union's request, to execute the contract agreed upon by the parties.
CONcLusIoNS OF: LAS
1. The Respondent is engaged in commerce within.the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within themeaning_of Section
2(5) of the Act;
3. At all times material herein, the Union was,-_ and is now, the
exclusive representative of all drivers of the Respondent. at its Rex-
bury, Massachusetts, place of business, excluding all supervi sors as
defined in the. Act.
4. By failing -to sign an agreement reached by a.multiemployer
bargaining group of which the Respondent was a member. as a result
of negotiations in which it participated, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of
Section 8(a) (5) of the Act.
5. By engaging in the aforesaid- conduct, the Respondent has inter-
fered with, restrained,. and coerced employees in tlie.exercise'of their
statutory right to bargain collectively through representatives of their
own choosing within the meaning of-'Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
the Respondent, Howard Disposal Corp., Roxbury, Massachusetts, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to sign the contract negotiated in 1964 by the bargain-
ing-group of disposal firms in the Boston area with Local 379, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
1112 DECISIONS OF NATIONA .If .LABOR RELATIONS BOARD
(b) Failing and refusing to bargain with the above-named labor
organization as the exclusive representative of all of its drivers,
excluding supervisors as defined in the Act, concerning rates of pay;
wages, hours of employment, grievances, and other conditions of
employment.
2. Take the following affirmative action which is necessary to effec-
tuate the policies of the Act;
(a) Upon request, execute with the a-bove-named Union as the exclu-
sij-e represent.atije of its employees the collective-bargaining contract
:negotiated by the parties described above to succeed their agreement
which expired March 31, 1963.
(b) Upon request, bargain collectively with the above-named Union
as the exclusive representative of all its employees in the above-
described unit.
(c) Post at its plant in Roxbury, Massachusetts, copies of the
attached notice- marked "Appendix.'' 3 Copies of said notice, to be
furnished by the Regional Director for Region 1, shall, after being
duly signed by the Company's representative, be posted by the Com-
pany immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in. conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Company, to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 1, in writing, within
10 days from the date of this Order, what. steps have been taken to
complyi herewith.
$ In the event that this Order .is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the. National Labor Relations
Board , and in order to effectuate the` policies of the National Labor
Relations Act, as amended, we hereby . notify our employees that:
WE wrLL , upon request , execute- with Local 379- International
Brotherhood of Teamsters , Chauffeurs , AV, arehousemen and
Helpers of America, as the exclusive representative of our employ-
ees, the collective-bargaining agreement which the said Union
had previously negotiated with the refuse disposal firms in the
Boston area to succeed our bargaining agreement that expired
on March 31 , 1963, covering all of our drivers.
HOWARD DISPOSAL CO- 1113
WE WILL, on request, bargain collectively with the above-named
Union as the exclusive representative of our employees in the
above-named unit.
HOw-RD DISPOSAL CORR.,
Employer.
Dated ----------------- --By------------------=-- ------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive dati s from the date
of postings and must not be. altered, defaced, or covered by any other
material.
Employees may communicate- directlz. with the Board's Regional
Office, Boston Five Cents Savings Bank Building, 24 School Street,
Boston, Massachusetts, Telephone No. 223-3358, if they have any
questions concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed June 12, 1964, by Local 379, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America, herein called Local
379 or the Union, against Howard= Disposal Corp., herein called Howard or the
Respondent , the General Counsel issued a. complaint 1 alleging Respondent refused
to bargain with the Union in violation. of Section 8(a),(5) and (1) of the Act.
The answer denied the commission of unfair labor practices.
This proceeding , with all parties represented ,2 was heard before Trial Examiner
John F..Funke at -Boston , Massachusetts, on October 22 and 23, 1964.3 At-the con-
clusion of the hearing the parties . were given leave to file briefs and briefs were
received from the General Counse l and the Respondent.
Upon my observation of the witnesses and upon - the entire record, I make the
following:
FINDINGS AND CONCLUSIONS
I. TIC', BUSINESS OF RESPONDENT - - - - - - -
"Respondent has its --principal place of business in the city of Boston where it is
engaged in the disposal of rubbish for various municipalities and the-public. Respond
ent was a member of a group of. employers engaged in-the disposal business who have,
over `a period of years, bargained with the Union concerning wages , hours, and other
terms and conditions of employment. The other firms, composing this group are
Joseph Amara &-Sons, Lnc.; -Frank-J. Cavaliere; Coleman Bros, Corp.; Dooley Bros.,
Inc.; LA. Fresney, Inc.; Jeffries Disposal Corp.; lbiarinucci Brothers; United Construc-
tion-Co.; J. F. Ryan,-Inc.; and Ryan-Coady Co.1 This employer group purchases
supplies and materials from points outside the Commonwealth of Massachusetts
valued in excess of $50,000 annually and supplies services valued in excess of $50,000
annually to firms which purchase supplies and materials valued- in excess of $50,000
annually from points outside the Commonwealth of Massachusetts.
Respondent is engaged in commerce within the meaning of the Act.
1 The complaint was amended at the hearing on motion.
2 After the close of the hearing and after the filing of briefs a request to appear on
behalf of Respondent :Howard Disposal Corp. was received by me from Joseph A. DeGugliel-
mo, Esq. ,..119 Mount Auburn Street, Cambridge ; -Massachusetts. . By order dated Febru-
ary 12, 1965 , the request was duly granted and the withdrawal of Solomon Romanow as
attorney of record for said Respondent was noted.
$ Unless otherwise noted all dates refer to 1964.
As the record herein indicates , the composition of the group has varied over the years.
s Westside Market Owners association, et a l., 126 NLRB -167; Siemens Mailing- Service,
122 NLRB 81.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATION INVOLVED
Local 379 is a labor organization within the meaning of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
The facts are not seriously in dispute and since the issue presented is strictly one of
law time might have been saved, as I pointed out at the hearing, by stipulating the
facts directly to the Board.
The Respondent had been part of a multiemployer group which had bargained with
Local 379 over a period of years and had, together with the Employers named in
section I, above, signed a contract with that local in 1962. The contracts were signed
by the individual Employers but were identical contracts and were the result of multi-
employer negotiations. Article X of the 1962 contract (General Counsel's Exhibit
No. 4-g; Exhibit A of Respondent's brief) reads as follows:
The terms and conditions of this Agreement shall continue in force and bind
both parties from April 1, 1962 to March 31, 1964; provided the City of Boston,
Public Works Department exercises its option and renews the present contract
with all of the contractors presently parties to this Agreement with the Union,
containing the same terms and conditions as the instant agreement. In the event
the City of Boston does not exercise said option with respect to any or all said
contractors then this Agreement shall terminate as of March 31, 1963.
A notice in writing shall be given by the party who desires a change in the
existing Agreement sixty (60) days prior to the expiration of the Agreement.
No strike or lockout shall be declared pending the sixty (60) days' notice above
provided for.
No agreement shall be made with any Teamsters, Chauffeurs, Tractor Man or
Helper which will in any way conflict with the terms of this Agreement.
ADDENDA
No employee shall collect junk, pick rags or collect money for commercial
refuse on the Company's time unless instructed to do so by someone in authority.
Any employee found loitering in or around bars, taverns, or restaurants during
working hours may be discharged.
All employees under this contract are subject to work in whatever capacity
they are requested by the Employer or his representatives. Any chauffeur may
be requested to back lift. If he refuses, he may be discharged.
According to testimony, which I credit, negotiations looking forward to a new
contract were conducted in February 1964 and a new agreement was reached about
February 25.6 Howard participated in the negotiations which led to this contract
but, after agreement was reached, refused to sign and this refusal provoked the
issuance of complaint herein. Respondent's refusal to sign the contract is admitted
and is based on its claim that the signing of such a contract was contingent upon a
renewal by the city of Boston of its disposal contract with Respondent on April 1.
The facts support this contention , It appears that each Employer in the multi-
employer bargaining group was party to contracts with the city of Boston covering
garbage disposal for specified districts within the city.? It was these contracts which
formed the common element among the multiemployers and led to the multiemployer
bargaining negotiations . It was also the city of Boston contracts which were the
focal point of discussion in negotiating the collective-bargaining contracts according to
James Freaney, president and treasurer of James A. Freaney Co., Inc. More
important, however, in establishing the intent of the parties is the clause in the 1962
contract, supra, permitting the termination of the contract on March 31, 1963, if the
city of Boston did not exercise its option to renew its contracts with the various con-
tractors . I think it is clearly to be implied that if a contractor had the right to termi-
nate his bargaining contract in the middle of the term if the city of Boston did not
exercise its option then he had the same right to withdraw and refuse to renew at the
end of the term if the city at that time failed to renew. To hold differently would
6 Howard did not participate in multiemployer negotiations until 1961 when It first
acquired a contract with the city of Boston.
7 While there is testimony that Marinucci Brothers did not have such a contract and
yet signed the 1964 agreement there is also testimony that the Marinucci Brothers owned
the M & C Corporation which did have such a contract. In this respect the testimony of
Frank McMorrow, president and business agent of Local 379, is in contradiction with that
of Michael Verrochi, in charge of disposal operations for Marinucci Brothers. The testi-
mony of James Freaney supports that of McMorrow and I credit it.
LANE-COOS-CURRY-DOUGLAS COUNTIES, ETC. 1115
confer upon the Employers'a right to terminate and withdraw" during the contract
term for a specific reason while denying him that right at the end of the contract term
for that same reason. Such a holding -makes no sense in either- law or logic.
If further evidence of the intention of the- contractors and the Union is needed it
may be found in the testimony which establishes that the membership of the multi-
employer group varied with the award of the city of Boston contracts. McMorrow,
president of Local 379, testified that the number of Employers signing the bargaining
contract had been reduced in 1964 from 11 to 8 and that every Employer who had
bargained and -signed with the Union in 1962 exceptMarinucci Brothers had received
a"city contract. The correlation between these contracts is further indicated-by the
fact that the bargaining contract executed on April "1,;1964. was fora 4-year period
and provided for a yearly wage increase. The city of Bostoncontract was a 1-year
contract with an-option tothe city to renew over a periodof 3years-and providedthat
upon renewal the city should "absorb 75 percent of the wage increase- Under these
circumstances I find that the cases which determine when and. under what circum-
stances an employer maytimely withdrawfrom a multiemployer unit are unrelated
to the situation presented here.- It is my conclusion that the contingency which
would have bound Howard to the terms of the contract-an award to it of disposal
territory by the city-never came into being. Whether there is a'special taint of
munificence attachedao the contracts with the city which made the bargaining contract
feasible is an issue which need not be reached but that possibility is not precluded by
the record-.. It is common knowledge that not all municipal administrations regard
.frugality as a civic virtue.__- -
Upon the basis of the foregoing findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is -engaged in commerce. within the meaning of the Act.
2. Local 379 is a labor organization within the meaning of the Act.
3. -Respondent has not engaged in unfair labor practices in violation of Section
.8(a),(i) and (5) of.the Act:
RECOMMENDED ORDER -
It is recommended that the complaint herein be dismissed in its entirety.
Lane-Coos-Curry-Douglas Counties Building & Construction
r eT ad s Council and Willamette General Contractors Assocr-
ation. Case No.36-CC 1-30. A' ovember 23,1965
DECISION AND ORDER`
On August 25, 1965 ,. Trial Examiner David F. Doyle . issued his
Decision in the above-entitled case., finding that the Respondent had
engaged in the unfair labor practices alleged in the complaint and
Tecomme-ndrng that it cease•and desist therefrom and take certain
affirmative action , as set forth . in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
-iner2s Decision and a brief in support of the exceptions, and" t"b e- Charg-
ing Party filed a-, brief in support of the Trial Examiner 's Decision.
Pursuant to the provisions of Section 3 ( b) of the National Labor
Relations Act,' as anle.nded, the, Nationa l- Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman -TeCulloch and-Members -Drown and Zagoria].
155 NLRB No. 88.