Overnite Transportation Co

National Labor Relations Board - Board Decisions

May 22, 1992

307 N.L.R.B. 666 (N.L.R.B. 1992)

666
307 NLRB No. 108
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Union has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
We are also satisfied that the Union’s contention that the judge
was biased is without merit. Careful review of the record and the
judge’s decision shows no statements or other evidence indicating
bias, or partiality to the Respondent’s case, on the part of the judge.
We note that at sec. II,B, par. 5, of the judge’s decision, the third
sentence should in relevant part state, ‘‘when the Union was voted
in and questioned why McBride . . . .’’ At sec. III,C, par. 85, the
fifth sentence should state in relevant part, ‘‘Section 8(d) . . . .’’ Fi-
nally, at sec. III,C, par. 93, the correct citation is Eltec Corp., 286
NLRB 890 (1987).
In adopting the judge’s decision, we have taken administrative no-
tice of our recently issued decision in Overnite Transportation Co.,
306 NLRB 237 (1992), but conclude that none of the findings there
militate against our agreement with the judge that in this proceeding
the Respondent did not violate Sec. 8(a)(5).
Overnite Transportation Company and Truck Driv-
ers, Oil Drivers, Filling Station and Platform
Workers Union, Local No. 705, an affiliate of
the International Brotherhood of Teamsters,
AFL–CIO.1 Cases 13–CA–29357 and 13–CA–
29749
May 22, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 13, 1991, Administrative Law Judge
Hubert E. Lott issued the attached decision. The Union
filed exceptions and a supporting brief and the Re-
spondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Richard Kelliher-Paz, Esq., for the General Counsel.
W.T. Cranfell Jr. and Michael V. Matthews, Esqs. (Blakeney,
Alexander & Machen), of Charlotte, North Carolina, for
the Respondent.
Sheldon Cherone, Esq. (Carmel, Cherone, Widmer, Matthews
& Moss), of Chicago, Illinois, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HUBERT E. LOTT, Administrative Law Judge. This case
was heard at Chicago, Illinois, on March 25 and 26, 1991,
on unfair labor practice charges and amended charges filed
from March 21 to October 10, 1990, against Overnite Trans-
portation Company (Respondent) by Teamsters Local No.
705 (Union) alleging violations of Section 8(a)(1) and (5) of
the Act. The last complaint issued November 30, 1990.
The issues in the case are whether or not Respondent com-
mitted certain independent 8(a)(1) violations and whether or
not Respondent violated Section 8(a)(1) and (5) of the Act
by refusing to agree to a dues-checkoff provision, union-se-
curity clause, union’s health and welfare package, and bind-
ing arbitration involving discipline, safety, and claims over
$1000. Respondent is also alleged to have violated Section
8(a)(5) of the Act by refusing to post a union notice on a
company bulletin board after orally agreeing to allow such
postings.
Respondent’s answer to the complaint, duly filed, denies
the commission of any unfair labor practices.
The parties were afforded an opportunity to be heard, to
call, to examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of hearing, briefs
have been received from the parties.
On the entire record and based on my observation of the
demeanor of the witnesses, and in consideration of the briefs
submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company is a corporation with a place of business lo-
cated in Chicago, Illinois, where it is engaged in the trans-
portation of freight and commodities. During the past cal-
endar year, the Company, in the course and conduct of its
business operations, derived gross revenues in excess of
$50,000 for the transportation of freight and commodities
from the State of Illinois directly to points outside that State.
Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Respondent further admits, and I find,
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates a terminal located at Bedford Park,
Illinois. In 1982, the Union was certified to represent a unit
of:
All local drivers employed by the company at its facil-
ity now located at 7526 South State Rd., Bedford Park,
Illinois, but excluding all office clerical employees,
guards and supervisors as defined in the Act and all
other employees. In that same year Section 8(a)(1) and
(5) charges were filed by the Union.
In 1989, the Board in Overnite Transportation Co., 296
NLRB 669, found that Respondent committed certain 8(a)(1)
667OVERNITE TRANSPORTATION CO.
violations which, ‘‘established the context in which Respond-
ent and the Union commenced negotiations.’’ The Board
held that these 8(a)(1) violations explained Respondent’s mo-
tivation and conduct at the bargaining table. Furthermore, the
Board found Respondent bargained in bad faith by refusing
to agree to almost every major economic and noneconomic
proposal set forth by the Union on the grounds that it did
not plan or desire to depart from existing company policies.
The Board further found that Respondent’s mind was closed
to the possibility of change, notwithstanding its self-serving
assertions that it would listen to the Union’s proposals and
change its mind if ‘‘convinced.’’ The Board concluded, on
the basis of all Respondent’s conduct that it was bent on be-
having as its managers had earlier threatened and that it was
not constructively approaching the collective-bargaining
process with an aim at reaching agreement with the Union.
On December 1, 1989, the Region dismissed a charge in
which the Union alleged surface bargaining claiming Re-
spondent engaged in dilatory, evasive, and otherwise unlaw-
ful actions. Appeals on January 24, 1990, upheld the dis-
missal citing the absence of unlawful conduct away from the
bargaining table and Respondent’s agreement with a 40-cent-
per-hour wage increase and other provisions and proposals.
B. Alleged 8(a)(1) Conduct
General Counsel offered Darren Lawrence as a witness to
the illegal conduct of Respondent. Lawrence was a city driv-
er for Overnite for 5-1/2 years.
Lawrence testified that on October 12, 1989, he asked Ter-
minal Manager Allen McBride when Overnite was going to
give them a raise. McBride did not reply to the question but
instead asked Lawrence his name. After giving his name,
McBride said that he had heard of him. Lawrence asked
what he had heard and McBride said nothing. No witnesses
were present.
Lawrence testified that on October 30, 1989, in McBride’s
office at 5 p.m., with no witnesses present, McBride asked
him what it would take to join the Overnite team. Lawrence,
who took this to mean ‘‘company man,’’ responded that it
would take better benefits, time and one-half, and more
money. McBride then took a book from his desk and handed
it to him. Lawrence described the book as a small hard cover
handbook entitled, Decertification of Unions. McBride asked
Lawrence to read the book but Lawrence gave it back to
McBride saying he didn’t want to. Next McBride handed
Lawrence a letter signed by Howard Cochran and McBride
which stated that if Overnite employees were to go on strike,
they would be fired and replacements would be hired and
they would keep their jobs as long as they liked. Lawrence
told McBride he was not a union supporter. McBride asked
Lawrence if he had a tape recorder on him and told him, he
should let sleeping dogs lie and he shouldn’t be coming into
Overnite stinking stuff up after Overnite had been doing the
same stuff for over 50 years.
After this conversation, Lawrence testified he met employ-
ees Earl Olson and Chet Pienkowski and they drove in
Olson’s car to Angie’s Bar where he told them about the de-
certification book and the letter. They suggested he call
Union Representative Sammy Tenuta which he did the next
day.
Lawrence testified that in January 1990, he was called into
McBride’s office in the presence of Operations Manager Mi-
chael Knight and Driver Safety Supervisor Monty Flynn. Ac-
cording to Lawrence McBride stated that when Lawrence
started work for Overnite in September 1984 he had signed
a decertification petition. Lawrence said he was not there
when the Union was voted in and questioned why Lawrence
thought he was a union supporter. Lawrence stated that many
times thereafter McBride told him he hoped Lawrence made
it on the Overnite team.
Lawrence admitted that his work record in January 1990
was poor. During this period he was called into McBride’s
office and given written warnings for damaging freight. He
had three or four writeups at this time but he told McBride
that he thought the writeups for damaged freight stunk and
he wanted some time off to look for a job before Overnite
fired him. McBride offered to give him a good reference if
he resigned rather than being fired. Lawrence had an on-the-
job accident around this time and McBride told him his work
record was poor and his personnel file was getting pretty
thick. He asked Lawrence if he needed time off to straighten
out his personal problems. Lawrence was discharged on
March 16, 1990.
On cross-examination Lawrence testified that he only told
Olson, Pienkowski, and Tenuta about the October 30, 1990
conversation with McBride. He further admitted that on his
May 9, 1990 sworn affidavit to the Board agent, he did not
take the book from McBride and that he did not see the title
of the book or its author. He further admitted that his affi-
davit stated that there were no words on the cover. His ex-
planation for the contradiction was that he was confused be-
cause he was under pressure from Overnite and his personal
problems.
Chester Pienkowski testified that he is a driver for
Overnite and in October 1989, Lawrence talked to him in
Olson’s 1987 or ’86 Chevy Camero. Lawrence told him
McBride offered him a book on decertification of unions and
he gave it back saying he did not want to read it. Nothing
more was said.
Sam Tenuta testified that some time between December
1989 and March 1990, Lawrence told him the terminal man-
ager showed him some stuff about decertification of unions.
Terminal Manager Allen McBride testified that Lawrence
would stop at his office once a week to engage in general
conversation about drag racing, skiing, and his personal
problems. Lawrence even invited McBride to his home for
dinner, to drag races, and a skiing trip but he never accepted
because he believed Lawrence was attempting to use him to
gain favor. He stated that he never initiated any conversation
about the Union with Lawrence. McBride testified that he
never showed Lawrence a book on decertification and that he
doesn’t have such a book. He denied showing Lawrence a
memo signed by Cochran and denied having such a memo.
He denied ever showing Lawrence a petition for decertifica-
tion and does not know whether Lawrence’s name appeared
on the petition. He further denied ever calling Lawrence into
his office for such a purpose.
McBride did admit calling Lawrence into his office five
times to discuss corrective action or writeups for poor per-
formance. There was always someone else present. Lawrence
told McBride that he was under tremendous pressure from
home and work and may have to quit his job. He complained
that he should be given special treatment, i.e., allowed time
off and change of starting time because of his personal prob-
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lems. McBride recommended that Lawrence resign but never
offered to give him a good recommendation. Finally,
McBride terminated Lawrence’s employment for poor per-
formance.
Analysis and Conclusions
I do not credit the uncorroborated testimony of Darren
Lawrence for many reasons. It was obvious that the witness
was biased against the Company, specifically McBride for
having given him written warnings which he considered un-
justified and for discharging him. Moreover, his testimony,
regarding crucial elements of evidence was contradicted or
omitted from his sworn affidavit. It should also be noted that
the testimony of Pienkowski and Tenuta does not corroborate
Lawrence’s testimony because they were not present during
the alleged October 30 conversation with McBride. In fact
their testimony weakens Lawrence’s credibility the same way
that Lawrence’s affidavit does. Neither witness mentioned a
letter concerning strikes and, for that matter, never men-
tioned anything but the decertification book, omitting all of
McBride’s comments which Lawrence testified to. Even
Pienkowski’s testimony contradicts Lawrence’s on the ques-
tion of where he and Lawrence had their conversation.
McBride denies having the October 30 conversation with
Lawrence and I credit his denial. Furthermore, I can find no
evidence to support the alleged promise of benefits or co-
erced resignation allegation.
Accordingly, I recommend dismissing all the 8(a)(1) alle-
gations.
C. Alleged 8(a)(5) Conduct
The facts concerning the negotiations were largely stipu-
lated by the parties. The remaining evidence is contained in
documents or was admitted. In short, there is no dispute over
the facts the parties referred to in the stipulation and docu-
ments are as follows:
John Pollard—Company Attorney, Sheldon Cherone—
Union Attorney, Dan Ligurotis—Union Secretary Treas-
urer, Sam Tenuta—Union Business Agent.
The first meeting occurred November 21, 1989. Because
of a dispute in the evidence presented at the unfair labor
practice hearing regarding the Union’s position, the Company
asked if the Union wished negotiations to resume at the point
where they had stopped or whether it wished to begin with
a full contract proposal. The Union suggested the latter
course and gave the Company its current Joint Area Cartage
Agreement and stated that was the Union’s proposal for a
contract.
The Company asked if there were any significant changes
in the new Cartage Agreement from the one proposed ini-
tially in 1982. The Union stated there were probably such
changes but could not point to any specific ones without a
careful study of the two documents. Therefore, the Company
suggested that negotiations adjourn so that it could study the
proposal. The Union suggested the parties adjourn and meet
again the following week. This was agreed to.
The parties next met on November 29, 1989. Because of
the intervening holidays, the Company had not been able to
prepare and present its full contract proposal. However, there
was considerable discussion of the impending federally re-
quired drug testing, average annual wages for truckdrivers,
the Company’s hospitalization and medical insurance plans,
and the sick leave plan. The Union also advised that it was
implementing a new health and welfare plan on December 1,
1989, and would send a copy of it to the Company.
The parties agreed to meet again on December 14, 1989,
but this was postponed at the Company’s request because of
a conflicting court appearance by Overnite’s counsel. The
parties then met again on January 5, 1990. At the third meet-
ing on January 5, 1990, the Company presented its counter-
proposal for a contract. Thus, as to the 29 articles contained
in the Union’s initial proposal, the Company expressed a
willingness to agree (in whole or in part) to over half of
them. With regard to those portions of the proposal the Com-
pany was opposed to, it explained its position as follows.
Article I, sections 1 and 2. The Company expressed its un-
willingness to belong to any multiemployer bargaining units
or to deal with any units other than Local 705, the Union
certified as the employee’s representative. Rather, the Com-
pany believed that the proper parties to the collective-bar-
gaining agreement should be Local 705 and Overnite. The
Union expressed no opposition to that position.
Article I, section 3. The Company stated that while it had
no objection to giving notice of the existence of an agree-
ment to any successors or purchasers, it did not believe it
was proper to bind, in advance, any such entity to the agree-
ment, because that might impede or prevent a sale of the
Company. Instead the Company believed that any future rela-
tionship or obligations between Local 705 and a successor or
purchaser should be worked out between those parties. The
Union expressed no opposition.
Article II, section 1. The Company stated that it believed
the proper ‘‘recognition’’ language should specify the Union,
and bargaining unit certified by the Board, and not other
union or employee units. The Union expressed no opposition.
The Company next stated that it was opposed to a ‘‘union
shop’’ arrangement because it believed that employees
should have the right to join and/or financially support a
union (or to refrain from such action) as they saw fit, free
from any threat of loss of employment, and felt the Company
should remain strictly neutral in the eyes of its employees in
that regard. That is, the Company believes it would be inap-
propriate for it to encourage or discourage any bargaining
unit employee in his individual decision on whether to join
or support the Union. And, the Company expressed concern
that if it were to agree to a ‘‘union shop’’ provision, employ-
ees would perceive that as an expression by the Company of
encouraging employees to join or support the Union. In
short, being a party to an agreement, where under the Com-
pany would be obligated to discharge employees who failed
to join or financially support the Union, would be wholly in-
consistent with the Company’s desired image of strict neu-
trality in such matters, at least in the eyes of the employees.
The Company expressed a similar concern about its par-
ticipation in the so called ‘‘check off’’ of union dues and
fees. That is, such participation in the process would signal
to the employees, not neutrality, in such matters, but rather
a notion that the Company favored the payment of such
moneys. Overnite then stated its belief that the best way to
be sure all employees clearly understood the Company’s po-
sition of neutrality in this regard was to include in the con-
669OVERNITE TRANSPORTATION CO.
tract the language set forth in article II, section 1(b) of the
Company’s counterproposal.
The Company also stated another reason for its opposition
to dues checkoff—mainly, that it was concerned such a pro-
vision would result in increased dissatisfaction with wages
by employees and the corresponding demands for more
money. The Company pointed out that employees tended to
look not at the gross wages but, rather, their actual take-
home pay in assessing the adequacy of their compensation.
Consequently, any payroll deductions inherently caused dis-
satisfaction with pay and demands for more. In that respect,
the Company viewed ‘‘dues check off’’ an economic matter.
The Union responded that the ‘‘union shop’’ and ‘‘dues
check off’’ provisions were standard in all their contracts and
that it felt very strongly that it should be included in the con-
tract with Overnite.
The Union also questioned whether the Company made
payroll deductions for other purposes and the Company re-
plied that it made deductions only for taxes as required by
law and for employee contributions to health insurance pre-
miums which were required by the Company’s insurance
provisions. In short, where the Company had a choice, it did
not make deductions for precisely the reasons it had just stat-
ed. The Company also made payroll deductions for uniforms
where applicable.
Article I, section 4. The Company stated its belief that the
agreement should pertain only to the Bedford Park employ-
ees. The Union took the position that any agreement reached
should extend to the local drivers at the Company’s Palatine,
Illinois terminal as well.
Article II, section 2. The Company stated it was in agree-
ment with the notion of a probationary period but believed
a 90-day period was more appropriate in terms of truly as-
sessing new employees’ abilities and work habits. The Union
expressed no opposition.
Article II, section 3(a). The Company stated it would
agree not use casual employees, thus obviating the need for
the Union’s language concerning such use. The Union ex-
pressed no opposition.
Article III, sections 1, 2, 5, and 6. The Company pointed
out that with the Union’s concurrence, it had 3 months ear-
lier instituted a 40-cent wage increase and believed this
would be adequate for the duration of the 1-year contract
Overnite proposed. This similarly obviated the need for a
cost-of-living provision. The Union expressed no opposition.
The Company also stated that it was opposed to paying
premium pay for overtime work, pointing out that such pay
operated as a deterrent to work employees beyond 40 hours
per week. That is, if the Company were required to pay a
premium for overtime work, it would restrict employees to
40 hours per week. Without premium pay employees would
expect to work approximately 50 hours per week thus in-
creasing their total earnings. The Union’s position was that
it had premium pay in all its contracts and this was very im-
portant to it.
Article III, sections 3 and 4. The Company stated that no
bargaining unit employees were scheduled to commence
work during the stated hours and only rarely did such em-
ployees work over into that time period. Therefore, the Com-
pany did not believe a ‘‘night shift or after midnight’’ pre-
mium provision was applicable to its operation. The Union
was still asking for a 20-cent night differential.
Article III, section 8(b). The Company pointed out that be-
cause all paychecks were cut at the home office in Rich-
mond, it would be impossible to pay discharged employees
on the next day. The Union expressed no opposition.
Article III, section 12. The Company noted that while the
Company’s existing funeral leave plan provided for only 2
days of paid leave, it afforded leave in the event of death
of more persons (10 versus 6) than the Union’s proposed
plan. Therefore, the Company proposed to continue its
present plan and the Union agreed.
Article IV. The Company pointed out that because of the
nature of its operation, and the need to vary work schedules
to fit customers’ needs, it was opposed to the establishment
of rigid work hours, shifts, and meal periods. The Union
wanted a fixed work schedule for purposes of determining
premium pay for overtime.
Article V, sections 1, 2, 3, 4, and 4(a). The Company stat-
ed that since its customers did not guarantee the availability
of freight, it was opposed to extending guarantees of work
to its employees. The Union still wanted its guarantees.
Articles VI and VII. The Company expressed its belief that
its existing holiday and vacation packages were adequate to
attract and keep employees, consequently, saw no need to
improve them at the present time. The Union expressed no
opposition.
Article VIII, sections 1, 3, and 4. The Company pointed
out that under its existing seniority procedures, laid-off em-
ployees could return to work without loss of seniority if they
were recalled within a period of time equal to their length
of service as opposed to the fixed 3-year period in the
Union’s proposal. Moreover, under that system, bargaining
unit employees could bump employees from nonbargaining
unit positions if they had sufficient seniority. Thus, the Com-
pany’s existing seniority provisions were superior to those
proposed by the Union. The Union acknowledged that recall
rights under the Company’s plan were superior but stated it
did not want bargaining unit employees to bump—or be
bumped by—nonunit employees. The Union did not acknowl-
edge that the recall rights under the company plan were su-
perior to those contained in the Union’s proposal.
Article II, section 2, sentence 2. The Company stated it be-
lieved it unwise to agree to hold the Union harmless for a
breach of contract simply because that might occur through
the action of a steward. The Union expressed no opposition.
Article XII. The Company stated it would agree not to use
owner-operators for the duration of the contract thus obvi-
ating the need for article XII. The Union expressed no oppo-
sition.
Article XIII. The Company stated that while it was willing
to agree that it would not subcontract work to evade its obli-
gations under the contract, it felt it needed the flexibility to
subcontract work whenever that proved economically desir-
able and not only in the limited circumstances set out in the
Union’s proposal. The Union expressed opposition to sub-
contracting.
Article XV. The Company stated its belief that there should
be a commitment by the Company and the Union not to lock
out or strike during the term of the contract. Further, the
Company stated, it viewed the Union’s article XV as a
‘‘loophole’’ to the ‘‘no strike’’ provision and, therefore, was
opposed to it. The Union expressed no opposition.
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Article XVI. The Company pointed out that under the
Union’s proposed plan employees could leave Overnite and
go to work for other signatory companies without risking
loss of insurance benefits, conversely Overnite employees
who might be covered by the Union’s plan could not transfer
to other terminals (or other jobs at the Bedford Park ter-
minal) without some loss of benefit. Thus, the Company
viewed having one health and welfare plan for its Chicago
local drivers and another plan for all other Overnite employ-
ees is very impractical.
More importantly, however, since Overnite presently
shares the premium cost with its employees, and under the
Union’s plan the Company would be obligated to pay the en-
tire premium, that would be a major cost item to the Com-
pany. The Union responded that it would insist on the Com-
pany’s agreement in its health and welfare plan.
Article XVII. Similarly, to the Company’s position on the
Union’s health and welfare plan, it expressed opposition to
having one pension plan for Chicago drivers and another for
all other Overnite employees. The Union stated its pension
plan was very important.
Article XVIII. The Company expressed its agreement that
the Union should have access to company premises but be-
lieved it was reasonable that it receive 24 hours’ advance no-
tice and that such access should not interfere with its oper-
ations. Further, the Company believed that the employees
should not be discriminated against because they chose to re-
frain from union membership or activities. The Union ex-
pressed no opposition.
Article XIX. The Company expressed its concern that
under the Union’s proposal for all unsettled grievances to
culminate in binding arbitration, the Company could be the
recipient of a devastating, adverse arbitration award. Recog-
nizing, on the other hand, how important arbitration was to
the Union, the Company proposed that some grievances—
those not involving discipline, safety, or claims in excess of
$1000—could be arbitrated at the request of either party. All
other grievances would be subject to arbitration only by the
agreement of the parties on a case-by-case basis. The Union
stated that it would insist on final and binding arbitration of
all grievances.
Article XXII. The Company stated that it occasionally
found it necessary to utilize city drivers as dockworkers or
on over-the-road runs and this greatly enhanced the effi-
ciency of its operations. Consequently, it was opposed to the
limitation on such utilization set forth in article XXII of the
Union’s proposal. The Union was opposed to the use of local
drivers to do other than driving work.
Article XXIII, section 1. The Company stated it was op-
posed to a ‘‘maintenance of standards’’ clause and preferred
a so-called ‘‘zipper clause’’ because of the certainty provided
by the latter language in determining what its contract obli-
gations would be once a complete agreement was reached.
The Union was opposed to the proposed ‘‘zipper clause.’’
Article XXIII, sections 12 and 13. The Company pointed
out that its existing sick leave and jury duty plans were far
superior to those proposed by the Union. The Union, there-
fore, agreed to the Company’s proposals in that regard.
Article XXIII, section 14. The Company pointed out that
it didn’t plan to institute a profit sharing plan thus obviating
the need for such language. The Union expressed no opposi-
tion.
Article XXIII, section 15. The Company stated that it be-
lieved there should be other conduct than that listed in the
Union’s proposal that would warrant discharge and proposed
that employees be discharged only for legal cause. The
Union expressed no opposition.
Article XXIV. The Company expressed a willingness to
agree that it would not move its terminal for the purpose of
evading the contract and the Union expressed no opposition.
Article XXIX. The Company expressed its view that be-
cause of the current uncertainties in the trucking industry and
in the economy as a whole, a more appropriate contract term
would be 1 year. The Union expressed no opposition.
At this point, the Union suggested that the parties adjourn
and meet again at a time when Ligurotis could be present.
The Union also suggested that the parties next schedule 2
consecutive days to meet. The earliest such 2-day period mu-
tually convenient to the parties was January 30 and 31, and
agreement was reached to meet at that time.
On January 30, after considerable discussion of union se-
curity, dues checkoff, health and welfare, and premium pay
for overtime, the Union stated it would give up its demands
on all other articles if the Company would agree to the fol-
lowing:
1. The Union’s health and welfare plan.
2. Premium pay for overtime after 40 hours per
week.
3. Dues check off.
4. A contract expiration date of March 31, 1991.
5. A wage re-opener in six months.
6. The Union’s seniority language with regard to lay-
offs and recalls (the Union was willing to accept the
Company’s provisions regarding the length of time an
employee was entitled to recall without loss of senior-
ity, but objected to employees bumping into and out of
the bargaining unit), and
7. Mandatory arbitration of all grievances.
The parties agreed to caucus overnight and meet again the
next day.
On January 31, the Company made the following counter-
proposals:
1. The company still believed that its current health
and welfare plan was more advantageous to it and was
opposed to paying the additional cost of the total pre-
mium for the Union’s plan.
2. The company would agree to pay premium pay
for all hours worked after 52 per week.
3. The company was still opposed to dues check off
but was willing to allow Union representatives access
to company property on payday for the purpose of col-
lecting dues, and provide funds with which to cash em-
ployee checks.
4. The company would agree to a wage reopener but
counterproposed that it be in nine months instead of
six.
5. The company would agree to a longer than one
year contract but wanted it to expire on March 1, 1991
so that bargaining for a new contract would occur at a
time prior to the Union negotiations for a new national
contract.
671OVERNITE TRANSPORTATION CO.
6. The company would agree to the Union’s seniority
proposal, and
7. While the company was still opposed to arbitra-
tion of all grievances (at the request of either party), it
stated it would be willing to modify its earlier proposal
to provide that more grievances could go to arbitration
either by raising the monetary limits of liability or by
exploring whether some categories of discipline or safe-
ty grievances might be susceptible to arbitration without
the prior consent of the company.
Counsel for the Charging Party does not believe the Com-
pany offered to explore whether some categories of dis-
cipline or safety grievances could go to arbitration without
the prior consent of the Company.
The Union caucused and came back with the following
counterproposal:
1. Insistence on the Union’s health and welfare plan,
dues check off, and arbitration of all grievances.
2. Agreement on the company’s counterproposal for
a contract expiration date and a wage reopener after
nine months.
3. Premium pay for overtime after 45 hours.
The Company caucused and then took the following posi-
tion:
1. It was still opposed to the Union’s health and wel-
fare plan, dues check off and arbitration of all griev-
ances. However the company again expressed its will-
ingness to provide facilities and procedures on company
property to make it easier for the Union to collect its
dues. The company also reminded the Union of its offer
to modify its arbitration proposal.
2. The company would agree to pay premium pay
after 50 hours of work.
Because Ligurotis was not present at either of these two
meetings, the Union requested an adjournment to consult
with him. The parties next agreed to meet on March 26,
1990.
At this meeting the Union advised that its position re-
mained unchanged as to health and welfare and arbitration.
However, as to premium pay for overtime, the Union indi-
cated a willingness to compromise somewhere between 45
and 50 hours. The Union also expressed a willingness to give
up dues checkoff if the Company would agree to the union-
shop provisions in its proposal.
The Union also stated that the benefit level of its health
and welfare plan was far superior to that of Overnite and was
cheaper—$62 per week as opposed to $66 per week. The
Company expressed doubt about that but agreed to make a
detailed benefit comparison of the two plans before the next
meeting. The parties agreed to meet again on April 18.
On that date, the parties met and the Company pointed out
that the Union’s health and welfare plan was inferior to the
Company’s in terms of the amounts paid for the following
services:
In patient medical, maternity, surgical and mental—
physician and other charges, out-patient surgery—Facil-
ity, physician, radiologist, anesthesiologist, and other
charges; out-patient mental; home health care; when
plan pays 100% for medical expenses; maximum life-
time benefits; and injury caused by operating motor-
cycle, sky diving or similar activity.
Moreover, the plans were equal as to preadmission tests,
lab and X-ray, outpatient emergency and accident, physician
visits, hospice care, prescription drugs, and other expenses.
Only as to the deductible amount and the provision for legal
services was the Union’s plan better than that of the Com-
pany. This, the Company pointed out, was a further reason
it was opposed to changing to the Union’s plan.
Finally, the Company stated its position with regard to
overtime, dues checkoff, union shop and arbitration remained
unchanged from that expressed to the Union in the previous
meetings.
The Union agreed to consider this and the parties met
again on March 26 and April 18, 1990, at which time their
positions remained largely unchanged except that the Union
expressed some willingness to compromise on the overtime
premium pay question.
On July 24, the Union stated it had a new proposal as fol-
lows:
1. Instead of a wage reopener, an immediate increase
of $1 per hour.
2. A weekly guarantee of 40 hours per week to the
first 90% of drivers put to work in any given week.
3. A four hour guarantee to drivers who reported to
work on Saturday and found no work available.
4. An eight hour guarantee to any driver reporting to
work on Sunday.
5. Either the Union’s health and welfare plan, or a
significant reduction in the portion of the premium paid
for Overnite’s plan.
In addition, the Union asked that the Company reconsider
its positions on dues checkoff, union security, and arbitration.
Following a caucus, the Company indicated it believed
there were portions of the Union’s proposal to which it could
agree but requested some time in which to determine the
wages being paid to drivers in the Chicago area by smaller
trucking companies. This was agreed to but prior to adjourn-
ment, the parties discussed two other matters.
First, as to arbitration of grievances, the Union asked if the
Company might agree to the appointment of a permanent ar-
bitrator to hear all grievances. The Company again pointed
out that while it might be willing to agree to arbitration of
some—or many—grievances, it was unwilling to give blan-
ket agreement, in advance, that every grievance would go to
arbitration if the Union so chose.
The Union next suggested that the Company agree that all
discipline and discharge grievances involving employees with
more than 1 year of service be arbitrated. The Company
pointed out that it was more concerned with the conduct of
discharged employees than their length of service. And, in
that connection, the Company stated that it would be willing
to compromise its previous position on arbitration to auto-
matically include employees who had been terminated for
poor work performance as opposed to those who had been
discharged for misconduct. Counsel for the Charging Party
does not believe the Company offered to permit arbitration
of grievances involving employees terminated for poor per-
formance as opposed to those discharged for misconduct.
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Union next asked if the Company would allow Busi-
ness Agent Sam Tenuta to come into the terminal premises
one or two mornings a month and have meetings with the
drivers before they departed on their runs. The Company
agreed to consider this and the meeting adjourned.
The parties next met on September 6, 1990. At this meet-
ing, the Company responded to the Union’s proposal as fol-
lows:
1. The company counterproposed a 40 cent imme-
diate increase with no wage reopener during the term
of the contract.
2. The company was opposed to reducing the em-
ployee share of health and welfare contributions but
was working on keeping premium increases down.
3. The company would agree to the Union proposal
for a four hour guarantee [reporting pay] for Saturday
and counterproposed a four hour guarantee for Sunday
work, provided the drivers were willing to perform
whatever work might be available.
4. Because of the uncertain economy and rising fuel
costs, the company was opposed to a guarantee of 40
hours per week to any driver.
5. The company did not have a proper facility to per-
mit meetings with the drivers and was, therefore, op-
posed to the Union’s proposal in that regard. The com-
pany pointed out that the only space for such meetings
would be either in the drivers room or in the canteen,
both of which are shared by other, unrepresented em-
ployees and, therefore, unsuitable to the types of meet-
ings envisioned by Tenuta. The company also pointed
out that it ordinarily rented off-premises rooms for its
own meetings with employees.
The Union then asked where the Company intended to
allow Tenuta to collect union dues under its proposal. The
Company pointed out that it had proposed to put a table near
the timeclock but that would not be a suitable place for
union meetings. Finally, the Company reiterated that it had
never sought to keep Tenuta off its property provided it had
advance notice of his visits and that they did not disrupt the
Company’s business.
The Union then asked if the Company would agree to af-
ford it a bulletin board on company property for posting no-
tices of meetings and other ‘‘official union business.’’ The
Company expressed its willingness to provide such bulletin
board but reserved the right to monitor the contents of all
postings to ensure that they did not degrade the Company or
contain inflammatory propaganda. The Union assured the
Company it had no such intentions. While the parties did
agree that the bulletin board would not contain materials that
degraded the Company or contained inflammatory propa-
ganda, the Union did not agree that the Company could mon-
itor the contents of all postings.
At that point, the Union stated it appeared the parties were
getting close to a full agreement but stated it still would in-
sist on some movement from the Company on dues checkoff
and arbitration. The Company reminded the Union that it al-
ready had expressed a willingness to compromise further on
arbitration and would carefully consider any new proposals
the Union wished to make on dues checkoff. The Union then
caucused.
On returning, the Union made the following proposal:
1. Daily overtime premium pay after nine hours.
2. Weekly overtime premium pay after 45 hours.
3. 50 cents immediate wage increase.
4. 20 cents night differential pay.
5. Nine paid holidays—the day after Thanksgiving
plus one to be determined.
6. A freeze at present levels of the employees share
of health and welfare premiums and
7. A contract expiration date of March 31, 1991.
The Union then stated that if the Company would agree
to these seven items it would agree to all the other company
proposals including those concerning dues checkoff and arbi-
tration. The Company asked for time to compute the cost of
this proposal and the parties agreed to adjourn until Sep-
tember 19, 1990.
On that date, the Company responded to the Union’s pro-
posals as follows:
1. The Company still felt that it should offer pre-
mium pay only after 50 hours per week.
2. The company would agree to a 50 cent immediate
wage increase.
3. The company was still opposed to night differen-
tial pay because only one or two drivers ever worked
during that period—and then irregularly—and the com-
pany was concerned that such a differential would
cause morale problems among those employees who
worked just as many hours, but at different times.
4. The company felt that its current seven day holi-
day package was adequate.
5. The company would agree to a contract expiration
date of March 31, 1991 and
6. The company would agree to freeze the employees
health and welfare levels but counterproposed that such
a freeze only extend to the Union’s proposed contract
expiration date.
The Union then announced that it was withdrawing the
proposal of September 6 in its entirety and was reverting to
its original contract proposal of November 21, 1989, except
that it proposed a new contract expiration date of April 1,
1994, with wage reopeners of April 1, 1991, April 1, 1992,
and April 1, 1993. The Union also proposed an 18-month
freeze on health and welfare contributions by employees plus
a reopener on such contributions at that time. The parties
then adjourned indefinitely pending trial of this case.
Regarding the Union’s allegation that the Company agreed
to a 50-cent increase for its represented drivers but imple-
mented a 60-cent increase for its unrepresented drivers, that
simply is not so.
By way of background, around September or October of
each year for the last several years, the Company has given
a general wage increase. In each case, the Company has pro-
posed that such increases be implemented immediately for
the Chicago drivers (currently, the only Union-represented
employees in Overnite’s system) without prejudice to the
Union in negotiating for a better increase when the parties
agree on a full contract. While the parties have been bargain-
ing about a collective-bargaining contract over the years, the
Company has from time to time proposed to the Union com-
panywide annual wage increases for the local drivers with
the understanding that agreement by the Union to the imple-
673OVERNITE TRANSPORTATION CO.
mentation of these increases would not in any way prejudice
the Union’s right to demand still further increases in the on-
going contract negotiations, nor would such agreement pre-
clude the Company from giving full consideration to such
demands.
In the meeting of September 6, 1990, when the Company
offered an immediate 40-cent increase, the Union asked if
the Company was planning on implementing such an in-
crease systemwide. Company negotiators responded that a
decision on whether to give a general increase and, if so,
how much or when, had not been made by Overnite’s top
management.
Then, on September 19 when the Company agreed to the
Union’s proposal to an immediate 50-cent increase, the
Union raised the same question and was again informed that
no decision had been made.
Such a decision was made—60 cents effective October 1,
1990—on September 22, 1990. That fact was communicated
by telephone to Cherone when the Company proposed imple-
mentation of a 60-cent increase for the Chicago drivers on
October 1 as well, without prejudice to further bargaining on
the subject. Cherone immediately agreed and that was ac-
complished.
Thereafter, on September 28, 1990, the Company received
from the Union a telefaxed document reporting to be a
‘‘summary of bargaining with Overnite’’ along with a re-
quest that the Company post it on the bulletin board the
Company had agreed to provide for the Union.
John Pollard testified that in January 1990 he offered to
modify his arbitration proposal either by raising the monetary
limit or exploring with them (Union) some way that more
cases than what they had provided for could go to arbitra-
tion. The Union wanted all cases to go to arbitration. On
September 6, the Union demanded that all discharge cases
should automatically go to arbitration. Pollard countered by
saying that he would be willing to raise the liability level in
allowing arbitration on some discharge cases. Cherone of-
fered to limit arbitration on discharge cases to employees
with over a year service and to forego arbitration on theft
cases. Pollard stated that there were other offenses as serious
as theft and he didn’t see any other way but to list all of
them. Pollard then offered to arbitrate discharge cases involv-
ing poor work performance. The Union was not receptive to
this proposal. On September 6, the Union proposed that all
grievances be arbitrated except theft and those cases involv-
ing employees with less than a year’s service. Finally the
Union abandoned arbitration if the Company accepted its
package outlined in the stipulation of events on September
6.
With respect to the bulletin board issue the Union sent a
Summary of Bargaining with Overnite to the Company for
posting on September 28, 1990. In the summary the Union
stated in part:
After many meetings with Overnite, the only changes
in the Company’s position are:
1. An offer of a sixty cent (60) increase.
2. Overtime after fifty (50) hours and
3. Freeze employees contributions to the health
plan until March 31, 1991.
We told the Company that we wanted more. A one
dollar ($1) per hour increase, but we would take the
sixty cents (60 cents) increase, which is effective Octo-
ber 1, 1990 and continued to bargain for more money.
The Company in a letter to the Union dated October 2,
1990, refused to post the summary stating in part:
We have received the attached Summary of Bar-
gaining with Overnite which Mr. Ligurotis sent by
telefax to Mr. Knight to be posted on the Chicago ter-
minal bulletin board. Since the notice contains numer-
ous inaccuracies and was totally misleading in many
other respects, it is not suitable for posting under the
standards agreed to by the Company and the Union at
the bargaining table.
For example, as you well know, in the many meet-
ings between the Company and the Union, Overnite has
changed its position in an effort to reach agreement
many more times than the three enumerated in the first
paragraph of the notice. Similarly, in the second para-
graph, the fact that the Union makes no mention of its
counterproposal for a fifty cent wage increase makes
that paragraph grossly misleading. There are many
other such examples.
If the Union wishes to prepare a full and accurate
summary of the various proposals, counterproposals,
positions taken, and reasons given therefore by both the
Company and the Union during the collective bar-
gaining that has taken place between them, we will be
happy to post such a document.
On February 18, 1991, the Union sent the Company a Re-
port on Negotiations for posting on the company bulletin
board. The report stated in pertinent part:
We had our last meeting on September 6, 1990 with
the Company insisting on keeping all of its present
terms, working conditions and their own health and
welfare and pension plans. The Company’s offer of a
40 cent per hour increase we rejected. Our demands for
daily overtime after nine hours, weekly overtime after
45 hours, 50 cents per hour wage increases, 20 cents
night differential, nine holidays instead of 7, freeze of
health and welfare contributions for 18 months, as well
as an agreed list of arbitrators, with the contract expir-
ing March 31, 1991 were all rejected.
In respect to arbitration, the Company insisted on the
right to reject any arbitration with Local 705 having the
right to strike and the Company the right to perma-
nently replace any strikers. We rejected this proposal.
The NLRB has petitioned the Court of Appeals for
the 7th Circuit to enforce the Board’s order and to
order Overnite to cease its unfair labor practices and
bargain in good faith with Local 705. The Company is
seeking to set aside the Order. We shall keep you in-
formed when the court decides this case. If the court
enforces the Board’s order, Overnite will have to bar-
gain in good faith and can not continue to insist on
keeping all of its conditions, wages and working rules
by rejecting all of the employees’ demands.
The Company in a letter to the Union dated March 1,
1991, refused to post this notice stating a pertinent part:
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We have received your letter of February 18, 1991,
requesting that we post a notice for Local 705 at
Overnite’s Chicago terminal. We certainly are willing
to do so; however, we know there are several inaccura-
cies in the notice that are objectionable.
First Overnite has not insisted on keeping all of its
present terms and working conditions, as you know, we
have offered several concessions that differ from those
presently in existence.
Second, the Company did not reject the Union’s de-
mand for a 60 cent per hour wage increase but agreed
to it.
Third, and similarly, the Company did agree to a
contract expiration date of March 31, 1991 and agreed
to freeze health and welfare contribution until that time.
Reasonable people could disagree with your state-
ment about the the consequences of a Court of Appeals
decision favorable to the Union so, we believe the no-
tice should plainly indicate that the statement made in
the last sentence of the fourth paragraph is your opin-
ion, not a fact.
Analysis and Conclusions
General Counsel alleges that Respondent reneged on its
agreement to permit the Union to post notices on its bulletin
board. The stipulated facts refute this allegation. The Re-
spondent agreed to provide a bulletin board but reserved the
right to monitor the contents of all postings to ensure that
they did not degrade the Company or contain inflammatory
propaganda. The Union did not agree with this company pro-
posal, objecting to the monitoring.
It appears from the above stipulated facts that Respondent
never reneged on any agreement because there was no agree-
ment. Consistent with its position, Respondent agreed to post
the Union’s notices if it corrected certain inaccuracies which
were set forth in Respondent’s letters to the Union.
Based on the above evidence, I find that Respondent did
not violate Section 8(a)(5) of the Act by reneging on its
agreement.
The 8(a)(5) allegations in the complaint, paragraph VII (1–
4) with the exception of the bulletin board allegation are fatal
on their face because they do not allege a violation of the
Act. It is one thing to use lack of agreement with union pro-
posals in assessing totality of conduct, but quite another to
allege failure to agree as a violation of the Act. Section 8(b)
of the National Labor Relations Act clearly states that such
obligation (to bargain in good faith) does not compel either
party to agree to a proposal or require the making of a con-
cession. This section has been applied by the Board in many
cases, Atlanta Hilton & Towers, 273 NLRB 87 (1984), and
has been recognized and upheld by the Supreme Court.
NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131 (1st Cir.
1953), cert. denied 346 U.S. 887 (1954); NLRB v. American
National Insurance Co., 342 U.S. 395 (1952). It seems obvi-
ous that if merit to allegations—paragraph VII (1–4) were
found, it would require ordering Respondent to agree to the
Union’s proposals. This was clearly not the intent of Section
8(d).
The complaint allegations are very specific and relate to
only four areas where the Company refused to agree to the
Union’s proposals: dues checkoff, union security, health and
welfare, and binding arbitration. No other indicia of bad-faith
bargaining is alleged unless one considers, ‘‘overall acts and
conduct.’’
In reviewing all the evidence including the stipulated facts
and the unrefuted testimony, it becomes apparent that the Re-
spondent did not bargain in bad faith. The record indicates
that Respondent met with the Union. It accepted many of the
Union’s initial proposals and where it rejected proposals; it
gave explanations.
Respondent made concessions, retreating from its earlier
position. For example, it conceded on a wage increase,
reached agreement on a wage reopener in 9 months, changed
its position on nonpayment of overtime, and agreed to assist
the Union in the collection of union dues and offered a lim-
ited form of grievance arbitration.
In April, the Respondent insisted on retaining its health
and welfare plan over that of the Union’s with a detailed ex-
planation as to why its plan was better. The Union eventually
abandoned its proposed health and welfare plan. Respondent
further agreed to pay premium pay after 50 hours.
In September, the Union indicated that the parties were
close to agreement but needed some movement from the
Company. It proposed seven items and indicated that if the
Company agreed to those seven items, it would agree to all
other company proposals including arbitration and dues
checkoff. The Company countered with an offer of: (1) pre-
mium pay after 50 hours per week, (2) immediate wage in-
crease of 50 cents per hour, (3) no night differential, (4)
same holiday package, (5) contract expiration date of March
31, 1991, and (6) freeze in present levels of employment
contributions to health and welfare.
At this point in time, the parties were in total agreement
on three items. Five hours apart on weekly overtime and 2
days apart on holidays. They were in disagreement on daily
overtime and night differential.
After these negotiations, the Union withdrew its September
offer and offered its original contract proposal of November
21, 1989, with some exceptions.
Notwithstanding the Board’s decision in a prior case, I
cannot find sufficient evidence of bad-faith bargaining to
support the complaint allegations. Accordingly, they are dis-
missed. Eltec Corp., 286 NLRB 890 (1987).
Based on the above findings and conclusions, I rec-
ommend dismissing the complaint in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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 following unit constitutes a unit appropriate for col-
lective bargaining within the meaning of Section 9(b) of the
Act:
All local drivers employed by the Respondent at its fa-
cility located at 7526 Southstate Road, Bedford Park,
Illinois, but excluding all office clerical employees,
guards and supervisors as defined in the Act, and all
other employees.
4. Respondent has not engaged in any violations of Sec-
tion 8(a)(1) and (5) of the Act.
675OVERNITE TRANSPORTATION CO.
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The complaint is dismissed.