Michigan Transportation Co., Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1985

273 N.L.R.B. 1418 (N.L.R.B. 1985)

1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michigan Transportation Company, Inc. and Team-
sters Local No. 299, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 7-CA-21504 and 7-
CA-21823
14 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 28 June 1983 Administrative Law Judge Wil-
liam A. Gershuny issued the attached decision.
Counsel for the General Counsel and the Charging
Party filed exceptions and supporting briefs, and
the Respondent filed a brief in support of the ad-
ministrative law judge's decision.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
1 The complaint alleges that the Respondent violated Sec 8(a)(5) and
(1) of the Act by, inter aim, a refusal to supply Information to the Union
pursuant to a 2 December written request Respondent's answer specifi-
cally denies the allegation and avers that "indeed Respondent has sched-
uled a number of meetings at the request of the Charging Party to
present said information to it, which scheduled meetings without notice
were not attended by the Charging Party and, subsequently, the Re-
spondent, by Certified Mail, addressed the matters requested by the
Charging Party which it was capable of so addressing" We find that the
General Counsel has failed to prove this allegation because no testimony
was adduced at the hearing to rebut Respondent's averment that it did
not agree to supply the requested information We further note in adopt-
ing the administrative law Judge's conclusion that the Respondent did not
violate Sec 8(a)(5) and (1) of the Act by refusing to supply information
requested by Union Representative Sharon Davies on 2 September 1982,
that no allegation concerning this information request is contained in
either the complaint or the amended complaint
DECISION
STATEMENT OF THE CASE
WILLIAM A. GERSHUNY, Administrative Law Judge.
A hearing was conducted in Detroit on June 20-21,
1983, on a complaint issued March 30, 1983, alleging
principally the unlawful termination of five clerical em-
ployees and the contracting out of their bargaining unit
work on or about September 1, 1982, in violation of Sec-
tion 8(a)(3) and (5), following expiration of their labor
agreement 5 months earlier.
The principal issue is whether Respondent satisfied its
bargaining obligation
All parties having waived their right to file posthear-
ing briefs and having made closing arguments on the
record, I hereby make the following findings of fact and
conclusions of law, based on the record evidence as a
whole, as credited.
I. JURISDICTION
The complaint alleges, the answer admits, and I find
that Respondent is an employer subject to the Act and
that Charging Party is a labor organization within the
meaning of Section 2(2) of the Act.
II. THE UNFAIR LABOR PRACTICE
Respondent is a specialty carrier with executive offices
and terminal in Dearborn and terminals in four other lo-
cations in Michigan and Ohio. For many years, its more
than 100 drivers have been represented by various Team-
sters locals; its five clerical employees in Dearborn by
another Teamsters local; and its mechanics by the Ma-
chinists There is no evidence of antiunion sentiment on
Respondent's part.
The five office workers, who perform all billing and
payroll functions, have been covered by contract since
the 1950s, when Respondent agreed to recognize the
Teamsters who were seeking to organize the office
workers of all specialty carriers in the area. In fact, by
1980, Respondent was the only specialty hauler whose
clericals were under contract and its office costs greatly
exceeded those of its competitors. Its labor costs in 1982
were in excess of $31,000 per annum per office worker,
based on an hourly rate of $11.30 plus benefits and taxes.
By 1982, Respondent was in dire financial straits, a con-
dition admittedly recognized by the Union Between
1979 and 1982, its net worth declined at an alarming rate,
from $271,406 to a deficit of ($1,734,608), its revenues
declined from $19 million to $14 million and its losses in-
creased from ($203,355) to ($368,610).
Faced with this financial crisis, Respondent, as provid-
ed in the office clerks' labor agreement, gave notice of
intent to terminate that contract on its March 31, 1982
expiration date. One year earlier, in March 1981, it had
obtained an agreement from its five clericals to forgo for
1 year scheduled wage increases under the contract.'
In the spring of 1982, a new contract for office clerks
was negotiated between the Teamsters Central-States
Negotiating Committee and the appropriate employers'
association (of which Respondent was not a member),
calling for yet higher hourly rates for office clerks.
Faced with mounting losses, a need to curb office ex-
penses (its own executives had taken salary cuts) and an
inability to purchase needed state-of-the-art data process-
ing equipment, Respondent, through its attorney, David
Jerome, initiated discussions with the Union in June
1982, concerning a new office workers contract general-
ly and, more specifically, wage concessions and other al-
ternatives
1 The credible evidence is that, while it dealt directly with the employ-
ees and their steward, Respondent did advise them to consult with their
union representative Apparently they did not do so No unfair labor
practice charge was filed then or later A grievance was delivered to the
Union by the employees in the summer of 1982, but was dropped by the
Union
273 NLRB No. 174
MICHIGAN TRANSPORTATION CO 1419
The credible—and largely undisputed—evidence estab-
lishes that on June 29 Jerome met with local union ad-
ministrative assistant Barnett, a veteran union official
whose position placed him over that of the several busi-
ness agents, at the local union offices. Jerome reviewed
Respondent's financial problems (which were acknowl-
edged by Barnett as well known) and the history of the
Teamsters organization of office workers (which left Re-
spondent as the only specialty carrier whose office clerks
were organized); he asked for a deviation from the new
$12 hourly rate for office workers which had just recent-
ly been negotiated; he told Barnett that, without a devi-
ation, Respondent would have to contract out the unit
work; and he asked Barnett, with whom he had many
dealings in the past on special problems beyond the au-
thority of a business agent, what Respondent could do.
Barnett replied that there could be no deviation from the
newly negotiated contract for office workers (i.e., no
"white paper contract"), particularly since it was an
election year; that Respondent could transfer jurisdiction
over its Dearborn units to another Teamsters local which
did not cover office workers (a "proposal" made in a
joking manner); that he "knew" Respondent had to con-
tract out the office work, as was already being done by
other carriers; that he could give no guarantees or assur-
ances about strike activity that might follow; and that
the Company should "play the game" so that it looks
good. Jerome already knew of the "unwavering" Team-
sters policy of permitting no deviations from new con-
tract terms.
Following this meeting, Respondent began to negotiate
with data processing contractors and, on July 30, entered
into a cost-plus contract (based on hourly clerical rates
of $4.50) with an independent contractor to perform the
work then being performed by the five-employee office
unit. The contract was executoi y, in the sense that no
services were to be performed until equipment was ob-
tained by the contractor and work was transferred to it
by the company. In fact, no work under that contract
was performed until early September 1982, after termina-
tion of the five employees on or about September 1
In late July, Business Agent Fistler, unaware of the
earlier discussion between Barnett and Jerome, tele-
phoned Jerome with a request for bargaining over a new
office workers contract. Jerome told Fistler to speak
with Barnett, so that he might get the "full story" from
Barnett of their previous meeting.
On August 10, Jerome and Frstler privately met in the
former's law office immediately prior to a scheduled
meeting to be attended by the company president and
the union steward, Shirley Beni tez. Fistler confidentially
told Jerome that he had spoken with Barnett, that he un-
derstood a contract could not be agreed on and that
"we'll go through the motions only, for the benefit of
the employees." The two then met in the conference
room with the company president and Benitez to "nego-
tiate" a new contract There vvas no discussion of any
employee grievance over the "give lbacks" of 1981.
Jerome recited the Company's position concerning its in-
ability to pay more than a $6 hourly rate for office work-
ers and its ability to get comparable work outside for
even less than that. Fistler stated that it was the master
contract and "nothing else." No mention was made of
the Company's decision to contract out the work The
parties agreed to "check out some things" (relating to
mechanics in another unit) and to "meet again." Fistler
never requested another meeting and, on August 31,
1982, was replaced by Business Agent Davie
In the meantime, by letter dated August 26, Jerome
advised Fistler that the office work would be contracted
out and the five employees laid off on or about Septem-
ber 1. Davie responded in writing and by telephone, ob-
jecting to the contracting out of the work and requested
a delay of the layoffs until the end of the week, which
was agreed to
On September 2, Jerome and the company president
met with Davie and Barnett. Davie, who admittedly had
not been advised by her local union superiors or her
predecessor that the labor contract had been lawfully
terminated by the Company months before, testified that
there was no discussion of a new contract, only one re-
lating to the reason for the layoffs. Jerome testified, cre-
dibly, that Davie's request for the name of the contractor
was denied and that she asked if anything could be done.
Jerome replied that the Union could sign a contract with
a $6 hourly rate for office workers. All present consid-
ered this remark as an attempt at levity, since it was un-
derstood by all, based on the earlier discussions, that the
Union could not agree to such a deviation and that each
had to play out their parts for the "benefit" of the em-
ployees.
Several months later, on December 2, the Union re-
quested information for bargaining. The request was
denied
Throughout, I have credited the testimony of Attor-
ney Jerome, an experienced member of the labor bar
generally and, more particularly, an experienced negotia-
tor with Teamsters local unions His testimony, based on
my observation of demeanor on the stand, was clear,
candid, and convincing Moreover, his testimony as to
contract negotiations with Union Representatives Barnett
and Fistler and as to Teamsters policy against deviations
from new contract terms stands unrefuted. Barnett, seri-
ously ill, was not called Fistler, working in the Detroit
area, was not called either by the General Counsel or the
Charging Party. Steward Benitez, despite her more than
20 years as steward, demonstrated little knowledge of
contract administration and apparently had little or no
contact with union officials As a witness, she was con-
fused and claimed a lack of knowledge that the contract
had been terminated and that the employees' grievance
over "give backs" had been dropped by the Union. Cur-
rent Business Agent Davie admittedly did not participate
in any of the relevant negotiations and had not been
briefed by her predecessor as to those negotiations.
The General Counsel's contentions are twofold: one,
that the contracting out of bargaining unit work and the
termination of all five bargaining unit employees was re-
taliatory and unlawful under Section 8(a)(3) in that it
was in response to the employees' demand for increased
wages and return of "give backs" in 1981; the other, that
Respondent's actions were taken without the requisite
bargaining.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neither finds factual support in this record.
As to the former, there simply is nothing in this record
to suggest antiunion sentiment on the part of this em-
ployer or any retaliatory motive. Respondent's long-
standing relationship with the Teamsters and Machinists
is uncontroverted and there is no history of union
animus. Counsel simply confuses a management decision
following unsuccessful bargaining over wage rates with
an unlawful motive. This allegation must be dismissed.
As to the bargaining issue, the record evidence (almost
entirely uncontroverted) establishes a number of critical
facts: on June 29 the parties met and reached impasse
over hourly rates for office workers; on June 29 the
Union acknowledged that the Respondent would have to
contract out the work, as already was being done by
other carriers; and on June 29 the Union acknowledged
that, for cosmetic purposes only (i.e., for the benefit of
the five employees in the unit), it would have to go
through the motions of further bargaining.
That Respondent participated with the Union in this
charade by conducting a "negotiating session" on August
10 does nothing to alter the irrefutable fact—admitted at
the time by union representatives responsible for this
unit—that agreement on a new contract was an impossi-
bility. That the current business agent was unaware of
the negotiating activities of her predecessor and superior
similarly cannot undo those actions or reverse their legal
and factual effect. That the Company did not specifically
inform the steward on August 10 of its decision to con-
tract out the work cannot alter the fact that the Union
already knew the Company would have to contract out
the work and the reasons for that decision.
Once impasse in fact is reached, the law imposes no
obligation on an employer to continue as a participant in
showcase meetings which a union may, for whatever
reasons, deem essential for the pacification of certain of
its members. Here, the Union approached the bargaining
table in June with a fixed, inflexible position—the master
contract with its $31,000 price tag per office worker per
year or subcontracting, with the attendant risk of strike
activity. Without reading any further between the lines, I
note that no strike activity ensued and I have to con-
clude that this Union recognized the impossibility of its
bargaining posture as to these office workers, given the
economic climate which threatened the security of other
of its members in the trucking industry.
Respondent having satisfied, as a matter of fact, its
bargaining obligation, this allegation and the one relating
to information is dismissed.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
It is ordered and directed that the complaint be dis-
missed.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.