Taurus Waste Disposal, Inc.

National Labor Relations Board - Board Decisions

Aug 12, 1982

263 N.L.R.B. 309 (N.L.R.B. 1982)

TAURUS WASTE DISPOSAL, INC
Taurus Waste Disposal, Inc. and Private Sanitation
Union Local 813, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 29-
CA-8501
August 12, 1982
DECISION AND ORDER )
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 5, 1982, Administrative Law Judge
Steven Davis issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging
Party filed a brief in opposition to Respondent's ex-
ceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
AMENDED REMEDY
We adopt the Administrative Law Judge's rec-
ommended remedy requiring Respondent to make
the employees whole by paying all insurance fund,
severance fund, and pension fund contributions, as
provided in the expired collective-bargaining agree-
ment, which have not been paid, and which would
have been paid absent Respondent's unlawful uni-
lateral discontinuance of such payments, and to
continue such payments until such time as Re-
spondent negotiates in good faith with the Union
to a new agreement or to an impasse. However, we
note that he failed to provide for the possibility of
interest or to take into account the potential extent
of a "make-whole" remedy concerning an employ-
er's failure to contribute to benefit funds. Thus, be-
cause the provisions of employee benefit fund
agreements are variable and complex, the Board
does not provide at the adjudicatory stage of the
proceeding for the addition of interest at a fixed
rate on unlawfully withheld fund payments, or
other losses attributed to such conduct. Instead, it
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Srandard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
263 NLRB No. 28
leaves to the compliance stage the question of
whether a respondent must pay any additional
amounts into benefit funds in order to satisfy our
"make-whole" remedy. These additional amounts
may be determined, depending upon the circum-
stances of each case, by reference to provisions in
documents governing the funds at issue and, where
there are no governing provisions, to evidence of
any loss directly attributable to the unlawful with-
holding action, which might include the loss of
return of investment of the portions of funds with-
held, additional administrative costs, etc., but not
collateral losses. Merriweather Optical Company, 240
NLRB 1213 (1979). We modify the remedy and the
recommended Order accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Taurus Waste Disposal, Inc., Sayville, New York,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
Substitute the following for paragraph 2(b):
"(b) Make its employees whole by paying all in-
surance, severance, and pension fund contributions,
as provided in the expired collective-bargaining
agreement, which have not been paid, and which
would have been paid absent Respondent's unlaw-
ful discontinuance of such payments, and continue
such payments, in the manner described in the sec-
tion of the Board's Decision and Order entitled
'Amended Remedy,' until such time as Respondent
negotiates in good faith a new agreement or to an
impasse."
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge: This case
was heard before me at Brooklyn, New York, on August
10 and November 5, 1981.
On December 10, 1980, Private Sanitation Union
Local 813, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, filed a charge in Case
29-CA-8501 based upon which' a complaint was issued
on January 19, 1981, alleging violations of Section 8(a)(1)
and (5) of the Act. Specifically, the complaint alleges
that Taurus Waste Disposal, Inc., herein called Respond-
ent, violated Section 8(a)(1) and (5) of the Act by (a)
The charge also alleged the discharge of William Larberg. That part
of the charge alleging the discharge was withdrawn before the hearing
and is not before me for decision
309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failing and refusing, since on or about August 6, 1980, to
meet and bargain with the Union as the exclusive collec-
tive-bargaining representative of its employees; (b) with-
drawing benefits from its employees on or about Septem-
ber 1, 1980, by ceasing to make payments on behalf of
the unit employees into contractual fringe benefit funds
since the expiration of the collective-bargaining agree-
ment on August 31, 1980; and (c) withdrawing, on or
about December 8, 1980, its recognition of the Union as
the exclusive collective-bargaining representative of the
employees.
Briefs have been filed by all parties and have been
duly considered. Based upon the entire record,2 the
briefs, and my observation of the demeanor of the wit-
nesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, having its prin-
cipal office and place of business at 38 Easy Street, Say-
ville, New York, is engaged in the business of the remov-
al of rubbish, cinders, ashes, waste materials, building
debris, and similar products within Suffolk County, New
York. It annually derives gross revenues in excess of
$500,000 from its business operations and also annually
purchases and receives goods and materials valued in
excess of $50,000 which are delivered directly to its fa-
cility from other States. Respondent admits, and I find,
that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent and the Union have been parties to collec-
tive-bargaining contracts since 1975. The original recog-
nition of the Union by Respondent in 1975 was based
upon a card showing by the Union. At that time Re-
spondent did not negotiate the terms of the contract but
rather accepted and signed a contract containing the
same terms and conditions as that negotiated by an em-
ployer association known as the Corrigan group.3 Re-
spondent had not been and is not a member of that em-
ployer association. Respondent's contractual relationship
with the Union had, therefore, always been upon an indi-
vidual basis. The first contract between Respondent and
the Union was effective from March 17, 1975, to August
31, 1977.
There was apparently much bitterness between the
parties, historically. Thus, at the expiration of the first
contract in August 1977 the then president of Respond-
C.P. Exhs. I and 2. received in evidence at the hearing, were appar-
ently lost thereafter, and copies thereof could not be obtained. All parties
have agreed that I not consider those exhibits in the determination of this
case, and I have not considered them.
s Corrigan is the name of the man who represents the employer ausoci-
ation. The Corrigan group consists of about 80 to 90 employers.
ent, John (Jack) Montesano,4 along with other employ-
ers formed an independent employer association s and an
independent union in an attempt to avoid continuing to
deal with the Union.6 Apparently nothing came of those
organizations since Respondent signed a renewal collec-
tive-bargaining contract which was effective from Sep-
tember 3, 1977, to August 31, 1980. Again, as to this con-
tract, as had occurred with respect to the first contract,
Respondent did not negotiate the terms of the contract
with the Union but rather accepted and signed a contract
containing the same terms and conditions as that negoti-
ated by the Corrigan group.
In the period 1975 through 1979, apparently Respond-
ent was not reporting the names of all of its employees
to the Union and not making proper contributions to the
union funds according to their contract. The Union ac-
cordingly filed for arbitration claiming that it was owed
$40,000. The matter was settled, sometime in 1974, for
$23,000. 7
B. The Events Surrounding the Expiration of the
Contract on August 31, 1980
On June 10, 1980,8 the Union sent a certified letter to
Respondent, advising it, inter alia, that the Union wished
to amend and modify the terms of the contract which
was to expire on August 31. The Union further advised
that its proposals for a new contract would be sent to
Respondent at a later date.
On June 17, the Union sent a letter to Respondent by
regular mail, which contained the Union's proposals for
a renewal contract with a request that Respondent con-
tact the Union to arrange an appointment to negotiate
the renewal agreement. The Union received no response
to this letter.
On June 26, the Union's letter of June 10 was returned
to it marked "unclaimed." The following day, on June
27, the Union sent copies of its June 10 letter and pro-
posals to Respondent. That letter was not returned to the
Union and the Union received no response to it.
On July 30, the Union sent a letter to Respondent and
other employers who deal on an individual basis with the
Union, advising them of a meeting to be held in the
Union's New York City office on August 12 for the pur-
pose of negotiating the terms of the renewal contract.
On August 6, Jack Montesano sent a letter to the
Union advising it that he was unable to attend the
August 12 meeting because he had to appear in traffic
court and requesting that the meeting be held on Long
Island. He added that he had not received the Union's
demands for the new contract.
' There are two persons named John P. Montesano in this Decision.
The father, known as Jack, will be referred to as Jack Montesano, and
the son will be referred to as John Montesano.
a The association was known as the Suffolk County Solid Waste Insti-
tute. The Union was known as the Brotherhood of Cartmen and Haulers
Union of North America.
a This information is according to the uncontradicted testimony of
Union Representative Bernard Adelstein.
7 This according to the uncontradicted testimony of Union Representa-
tive Bernard Adelstein.
a All dates hereafter are in 1980 unless otherwise stated.
310
TAURUS WASTE DISPOSAL, INC.
On August 8, the Union replied, offering Respondent
August 13 at the Union's office as a date for the meeting.
The Union also enclosed a copy of its proposals. The
Union received no response to its letter, and apparently
Respondent did not attend the meetings on August 12 or
13.
Union business agent Michael Fleischer visited Re-
spondent on August 11 to discuss the discharge of an
employee. Fleischer asked Jack Montesano if the Union
is "going to have a rough time with the contract' with
you again this time around as well as last time." Jack
Montesano replied that there would be no problems.9
In or about July or August, negotiations began be-
tween the Union and the Corrigan group. On August 31,
the contract expired.
Respondent and the Union stipulated that, on or about
September 1, Respondent ceased making payments on
behalf of its drivers and helpers into the insurance, sever-
ance, and pension funds that were provided for in its
contract which expired on August 31. It was also stipu-
lated that Respondent created its own pension fund with-
out consultation with the Union.
On September 1, the Union struck because of the Cor-
rigan group's refusal to grant retroactivity of the con-
tract's terms to September 1. All of the Union's members
were told to strike, including those employed by Re-
spondent. On September 4 the strike was settled and on
or about September 15 the formal contract was signed by
the Corrigan group. Copies of the contract were mailed
to employers, including Respondent, which had con-
tracts with the Union. The Union received no reply from
Respondent to its mailed contract.
C. The Attempt To Have Respondent Sign the
Contract and the Charges Against the Union
1. The meeting of October 13
Michael Fleischer, the Union's business agent, testified
that on October 13 he and union representative Billy
Harris visited Jack Montesano at Respondent's facility.
Also present was Thomas Ronga, the owner of Detail
Cargo, another garbage removal company. Fleischer tes-
tified that he gave Jack Montesano a copy of the con-
tract and asked him if he was going to sign it. Jack Mon-
tesano replied: "Yes, I will sign it, I just want to look it
over." He then asked Fleischer to return in 3 days to
pick it up. Fleischer then left.
John Montesano testified that Fleischer told Jack
Montesano that Union Representative Bernard Adelstein
wanted him to sign the contract. According to John, his
father said: "To be honest with you fellows if you still
got that hot cargo clause in there I am not going to sign
it, there are a lot of things I want to talk to you about."
Jack Montesano also said that he had to give the con-
tract to his attorney.
Fleischer was not asked specifically if John Montesano
was present during that meeting. Neither Harris nor
Ronga testified.
0 This according to the uncontradicted testimony of Fleischer. Jack
Montesano died on April 13, 1981, and thus did not testify at the hearing.
Fleischer phoned Jack Montesano on October 16, and
asked him if he could pick up the contract. Jack Monte-
sano replied that the contract was "okay" with him but
he wanted his attorney to look at it before he signed it.
Jack Montesano added that his attorney was then in
Israel and would return on November 14. Fleischer re-
ported this conversation to Adelstein.
2. The Union's action against Jet Sanitation
Shortly after Adelstein was told by Fleischer that Re-
spondent claimed an inability to sign the contract due to
its attorney's absence, union attorney Richard Weinmann
told Adelstein that in fact Respondent's attorney, Reuben
Kaufman, had not gone to Israel when it was alleged
that he had. Adelstein then decided that, as a response to
Respondent's misstatements or falsely stating the unavail-
ability of counsel, he would investigate whether Re-
spondent was a party to any violations of the terms of its
recently expired contract with the Union.
Accordingly, Adelstein learned that Jet Sanitation
Service Corp. was subcontracting work to Respondent in
violation of the contract."' On October 31, Adelstein
sent a letter to Jet so advising it, and also directing that
it cease the violation immediately. I
Jet complied with the Union's request, and refused to
permit Respondent to pick up work from it. For 2 to 3
weeks Respondent's trucks were not used at all.
In early November, union attorney Weinmann re-
ceived a phone call from Respondent attorney Kaufman.
Weinmann was asked by Kaufman to arrange a meeting
regarding the work lost by Respondent from Jet Sanita-
tion pursuant to the Union's demand for compliance with
the subcontracting clause. Weinmann agreed to set up
the meeting and asked Kaufman whether Respondent
was ready to sign the contract. Kaufman replied that
there were "a few little things" that would have to be
"ironed out" first. A meeting was arranged for Novem-
ber 14.
On November 14, Kaufman called and canceled the
meeting because he was in a doctor's office with his wife
who was ill. Weinmann offered to meet later that eve-
ning. Kaufman declined saying that he could not leave
his wife, but added that he was leaving for Israel on No-
vember 17, and would be returning on December 10.
Weinmann then offered to meet on November 16 or 17.
Kaufman again refused, saying that he could not leave
his wife. Weinmann then said that he would not wait for
Kaufman's return from Israel on December 10 and he
would do whatever was necessary to protect the Union.
1o The subcontracting clause of the contract, which was later the sub-
ject of a charge against the Union, to be discussed infra, states:
SUB-CONTRACTING
No work or services presently performed or hereafter assigned to
employees in the collective bargaining unit will be sub-contracted,
transferred, leased, assigned or conveyed in whole or in part to any
other person, firm, partnership or corporation which is not a party
to this Agreement.
l Apparently, the Union's theory was that Jet, which was a signatory
to the union contract, had subcontracted work to Taurus which was not
a party to the contract because it had not yet signed the 1980-83 agree-
ment
311
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The meeting of November 17
Union agent Fleischer testified that on November 17
he again visited Respondent's premises. The same people
were present then who were present at the October 13
meeting, with the addition of John Montesano, who en-
tered the room in the middle of the conversation, but
was not present for the material part of the conversation,
according to Fleischer.
Fleischer testified that Jack Montesano said that he
would not sign the contract, adding that he was going to
decertify the Union. Ronga told Jack Montesano that he
(Montesano) made a commitment to sign the contract.12
Jack Montesano then told Fleischer that he did not like
him, showed him a pistol in his desk drawer, told him
that he would blow Fleischer's brains out, and ordered
him out of his office. Fleischer then left.
John Montesano testified that he was present for half
the meeting, during which Jack Montesano said: "This is
why I didn't want to sign it to begin with. It proves the
fact about the hot cargo clause, now I am out of work,
he't took half my business." Fleischer replied: "All your
problems will be over. All you got to do is sign...."
Jack Montesano then said: "I told you before. I am not
signing with that clause in it. There is a lot of other
things I want to talk to Bernie about." Jack Montesano
also asked Fleischer: "Why are you trying to crucify me
like Jesus Christ?" Ronga also asked Jack Montesano to
sign the contract. Jack Montesano replied that he could
not sign because the Union was trying to take his busi-
ness from him. Fleischer asked: "Don't you think the
benefits are good in the Union?" There was no reply.
John Montesano, while admitting that his father owned a
pistol, denied that he (Jack) threatened Fleischer or even
kept the pistol in his office.
4. The charges against the Union
On November 19, Respondent filed an 8(e) charge 14
against the Union in which it alleged that, since October
31, the Union has entered into a contract or agreement
with Jet Sanitation Service Corp. whereby Jet has ceased
doing business with Respondent in violation of Section
8(e) of the Act.
On November 21, Weinmann phoned Jack Montesano
and asked for a meeting for November 24, 25, or 26.
Montesano agreed to meet on November 26 at the office
of the commissioner of labor.
On November 25, Gloria Rosenblum, an associate of
Kaufman, called Weinmann and told him that Montesano
could not attend the meeting because he was serving on
jury duty. Weinmann offered to meet in the evening,
after jury duty was completed. Rosenblum agreed but
said that she would have to check with Jack Montesano.
The following morning, November 26, Rosenblum
called Weinmann and told him that Jack Montesano
would not meet. Rosenblum asked Weinmann in either
this conversation or the one on November 25 whether
" This apparently refers to the October 13 meeting at which Jack
Montesano said that he would sign the contract, but needed time to ex-
amine it.
I3 Apparently referring to Bernard Adelstein.
" Case 29-CE-53.
there was "any room to alter the contract." Weinmann
replied that the contract had already been agreed to, but
that, if there were some "minor problems" regarding it,
the contract could be signed and the parties could then
have a side letter agreement clarifying certain points.
5. The calls of November 28 and 30
Weinmann phoned Kaufman on November 28 and
asked tr have a meeting regarding the contract. Kauf-
man replied that he would be seeing Montesano the fol-
lowing day. Weinman said that, although he and Bernard
Adelstein were leaving for Puerto Rico that day, Union
Representative Martin Adelstein would be available in
New York to meet.
Weinmann testified that on November 30 he phoned
Kaufman from Puerto Rico and asked him for the status
of the matter. Kaufman replied that he and Jack Monte-
sano would not be meeting wvith Martin Adelstein. Kauf-
man also asked whether there had ever been an election
among Respondent's employees. Weinmann replied that
he believed that the original recognition was based upon
a card showing. Kaufman then said: "Well, we are going
to file a petition." The conversation then ended. Wein-
mann testified that no counterproposals were ever of-
fered by Respondent to the Union's demands or to the
contract which had been tendered. Weinmann also
denied that Kaufman or any agent of Respondent offered
to accept the contract if the subcontracting clause or any
other provision was altered or removed. Weinmann fur-
ther stated that the issue of the subcontracting clause as
it related to the proposed contract was never raised with
him by Respondent prior to the instant hearing.
Kaufman testified regarding Weinmann's November 30
call. Kaufman stated that Weinmann asked that the 8(e)
charge be withdrawn, s5 and also asked to negotiate the
contract upon his return from Puerto Rico. Kaufman re-
fused to withdraw the charge, and told Weinmann that
Respondent would not sign the contract containing the
subcontracting clause, and there would be no agreement
unless the clause was removed. Kaufman did not recall
asking Weinmann whether there had been an election
among Respondent's employees, but significantly he ad-
mitted telling Weinmann on November 30 that "the em-
ployees had filed a petition for election." ' 6
D. Subsequent Events
On December I, the Union executed a settlement
agreement in settlement of the 8(e) charge. 7
On December 8, a decertification petition was filed by
an employee of Respondent.
On December 10 the Union filed the instant charge.' 8
"5 Previously, on November 25, the Board agent sent withdrawal re-
quest forms to Respondent. They were not executed.
'e As will be discussed, infra, a decertification petition was filed on
December 8.
"7 By the terms of the settlement agreement, the Union agreed to
notify all parties to the collective-bargaining agreements that the subcon-
tracting clause is void and unenforceable, insofar as it prohibits subcon-
tracting to anyone who "is not a party to the agreement."
IL The petition was dismissed on May 15, 1981, subject to an applica-
tion by the petitioner for reinstatement of the petition after the final dis-
position of the instant case (29-CA-8501)
312
TAURUS WASTE DISPOSAL, INC.
E. The Unit
The unit description alleged in the complaint is as fol-
lows:
All full-time and regular part-time drivers and driv-
ers' helpers employed by the Respondent at its Say-
ville, New York facility, exclusive of all other em-
ployees, and all supervisors as defined in Section
2(11) of the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
Respondent's answer denied the above description but
the unit issue was given no attention by the parties
during the hearing. The subject was addressed by coun-
sel for the General Counsel in her brief, but was not ad-
dressed by Respondent or the Union in their briefs. The
two contracts honored by Respondent, which were ef-
fective from 1975 to 1977, and from 1977 to 1980, and
the contract at issue herein, which runs from 1980 to
1983, describe the unit as "all chauffeurs and helpers at
all locations of the Employer, except those employees
not eligible for membership in the Union in accordance
with the provisions of the Labor Management Relations
Act of 1947, as amended...." Accordingly, I find that
the correct unit description is that alleged in the com-
plaint, as set forth above. "Such unit is consistent with
that recognized by the parties in their collective bargain-
ing agreements and these agreements described the bar-
gaining unit with sufficient clarity."19
111. ANALYSIS AND CONCLUSIONS
A. The Alleged Refusal To Meet and Bargain With
the Union; the Alleged Withdrawal of Recognition of
the Union
The General Counsel alleges that Respondent violated
Section 8(aX1) and (5) of the Act by failing and refusing,
since on or about August 6, 1980, to meet and bargain
with the Union. The General Counsel also alleges that
Respondent violated Section 8(a)(1) and (5) of the Act
by withdrawing its recognition of the Union on or about
December 8, 1980.
Respondent raises certain affirmative defenses in its
answer and at hearing essentially as follows: (1) The
Union refused to negotiate with it. 20 (2) The Union re-
fused to negotiate with Respondent until the Union ne-
gotiated a contract with the industry association, and
thereafter attempted to coerce Respondent to execute the
same contract without any negotiation. (3) The contract
contained an illegal and void hot cargo clause which
rendered the entire proposed contract illegal. (4) Re-
spondent is excused from bargaining because a decertifi-
cation petition had been filed by its employees.
The Board has long held that a collective-bargaining
agreement, lawful on its face, raises an irrebutable pre-
sumption that the union's majority status continues
through the end of the contract. This presumption con-
1 Henry Cauthorne, an Individual, it/a Cauthorne Trucking, 256 NLRB
721, fn. 8 (1981); Dial Tuxedos Inc., 250 NLRB 476, 481 (1980).
'o No charge alleging a refusal to bargain had been filed against the
Union.
tinues beyond the expiration of the contract, but becomes
rebuttable. The burden of rebutting this presumption is
upon the party that would do so. 21 The question then is
whether the respondent has rebutted the presumption
that the union represents a majority of the employees in
the unit in question. In defending its refusal to bargain
with the union, it is incumbent upon the respondent to
demonstrate either that the union did not enjoy majority
support at the time of the refusal to bargain or that it has
reasonable doubts based on objective considerations for
believing that the union had lost its majority status when
it refused to bargain. As noted, such presumption contin-
ues following the expiration date of the contract. More-
over, before refusing to bargain, it was incumbent upon
Respondent herein to rebut that presumption either by
showing (1) that at the time of the refusal the Union no
longer enjoyed majority representative status, or (2) that
its refusal was predicated on a good-faith and reasonably
grounded doubt of the Union's continued majority
status.2 2 Respondent has not met its burden.
The mere filing of a decertification petition does not
destroy the presumption of continued majority status that
a recognized union enjoys. 2 a No other evidence was ad-
duced concerning the Union's alleged lack of majority
support or of Respondent's reasonable doubts based upon
objective considerations for believing that the Union had
lost its majority status. Moreover, I note that the decerti-
fication petition was filed on December 8, which was
more than 3 months after Respondent's admitted cessa-
tion of its payments to the Union's contractual fringe
benefit fund immediately upon the expiration of the con-
tract on September 1, 1980.24
Respondent alleges that the contract is not lawful on
its face because of the existence of the alleged unlawful
hot cargo subcontracting clause which thereby relieved
it of its obligation to bargain. However, I find that Re-
spondent never asserted this defense to the Union prior
to the instant hearing.2 5
Moreover, the subcontracting clause in the contract2 6
has not been determined to be unlawful.2 7 This identical
. . . provision was contained in two prior contracts
immediately preceding the current collective-bar-
gaining agreement. The Respondent not only signed
but also honored each of these agreements without
complaining about the illegality of this provision.26
It was only after Respondent filed a charge on No-
vember 19 alleging the unlawfulness of the clause that it
sought to avoid its obligation to bargain with the Union
A" Henry Cauthorne. t/a Cauthorne Trucking, supra: Eastern Washington
Distributing Company, Inc., 216 NLRB 1149 (1975).
2a Impressions Inc., 221 NLRB 389, 403 (1975).
s Lammert Industries a division of Componetrol. Inc.. a subsidiary of I-
T-E Imperial Corporation, 229 NLRB 895, 932 (1977), and cases cited
therein.
"4 That issue will be discussed, infra
'a Canterbury Gardens and Manchester Gardens, Inc., 238 NLRB 864,
865 (1978).
'6 The clause is set forth, supra.
27 Respondent's charge alleging its unlawfulness was settled by the
Union.
" Central Plumbing Company, 198 NLRB 925, 929-930 (1972).
313
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by asserting the illegality of the subcontracting clause.
These circumstances cause me to conclude that Respond-
ent raised the issue of the allegedly unlawful subcontract-
ing clause as an afterthought. As a result of the settle-
ment of the case against the Union on December 1, the
subcontracting clause of the contract has been modified,
but nevertheless Respondent had not met with the Union
to negotiate a contract prior to the instant hearing.
Moreover, as the agreement contains a separability
clause and the subcontracting provision is independent of
other sections of the contract, the document as a whole
is not rendered invalid by the alleged illegality of that
clause. 29
Accordingly, I find and conclude that the Union con-
tinued to represent a majority of the employees of Re-
spondent upon and after the expiration of the contract on
August 31, 1980.
Section 8(d) of the Act sets forth the bargaining obli-
gation of the parties:
. . . to bargain collectively is the performance of
the mutual obligation of the employer and the rep-
resentative of the employees to meet at reasonable
times and confer in good faith with respect to
wages, hours, and other terms and conditions of em-
ployment, or the negotiation of an agreement or any
question arising thereunder, and the execution of a
written contract incorporating any agreement
reached if requested by either party ....
The test of good faith in collective bargaining is
whether a party to negotiations conducted itself during
the entire negotiations so as to promote rather than
defeat an agreement. 3 0
The evidence establishes, as set forth above, that the
Union requested bargaining for a new contract on June
10, 17, and 27, and advised Respondent of its demands.3 '
The Union repeatedly thereafter, in its letters of June 17,
July 30, and August 8, offered to meet with Respondent
for the purpose of negotiating a renewal agreement,3 2
but received no reply except for a letter dated August 6
in which Respondent's president replied that he was
unable to meet on August 12 due to a traffic court ap-
pearance. The Union immediately offered to meet on
August 13, but Respondent did not respond to that offer.
Union agent Fleischer, whose testimony I credit,33
stated that on October 13 Jack Montesano agreed to sign
9 Id.
30 N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131
(Ist Cir. 1953), cert. denied 346 U.S. 887.
l Although the evidence shows that Respondent stated that it had not
received the Union's demands by August 6, this was cured by the
Union's sending another copy of its demands on August 8. Moreover, at
a meeting on August II11, Respondent did not raise this issue.
32 The Union thus made repeated offers to "negotiate" a renewal
agreement with Respondent. Respondent's argument that the Union did
not want to negotiate with it but rather demanded that it sign the agree-
ment already negotiated by the Corrigan group is therefore without
merit.
aS Fleischer impressed me as a credible, forthright witness. I do not
credit John Montesano's testimony that his father refused at that meeting
to sign the contract because of the presence of an allegedly illegal hot
cargo clause in the contract. The issue of the hot cargo clause did not
arise until October 31 when the Union invoked it against Jet Sanitation
and Respondent. Thus the clause could not have been an issue on Octo-
the contract which had been negotiated between the
Corrigan group and the Union, but wanted 3 days to
look it over. Three days later, on October 16, Jack Mon-
tesano told Fleischer that the contract was "okay" with
him but that he wanted his attorney to look at it.
On only one occasion prior to the hearing, Respondent
requested a meeting to discuss the contract. Thus, a
meeting was arranged for November 14 but was then
canceled due to the illness of the wife of Respondent's
attorney. Union attorney Weinmann's repeated offers to
meet thereafter were rejected by Respondent.
Respondent's attitude toward bargaining with the
Union was illustrated by the November 17 meeting be-
tween Fleischer and Respondent. Jack Montesano re-
fused to sign the contract, adding that he would "decer-
tify" the Union.3 4
It is further observed that Respondent's president
agreed to meet with the Union on November 26 but then
canceled that meeting because he was scheduled to serve
on jury duty that day. The Union's further offer to meet
at the conclusion of jury duty was rejected by Respond-
ent.
The Union further advised Respondent in late Novem-
ber that it was available to meet, but Respondent again
rejected that offer.3 5 The parties thereafter did not meet
to negotiate a contract prior to the hearing.3"
Respondent's failure to respond to communications
from the Union requesting bargaining, its failure to agree
to meet with the Union, the agreement to meet with the
Union and then the cancellation of such me.atings 37
without further proposing any additional mee, -gs, its
failure to make any counterproposals to the Union's pro-
posed contract, 3 8 all convince me that Respondent's
ber 13. Moreover, I note that Respondent signed without objection two
prior contracts containing the identical clause. Furthermore, Jack Monte-
sano's affidavit dealing with the October 13 conversation made no men-
tion of his alleged refusal to sign the contract because of the subcontract-
ing clause.
a4 Although Jack Montesano's affidavit as to that incident given on
November 19 states that he refused to sign the contract because the
Union took half his business from him, etc., he did not expressly state
that the reason for his refusal to sign the contract was the presence of an
allegedly illegal hot cargo clause in the contract. I do not credit John
Montesano's testimony that his father refused to sign the contract because
of the alleged hot cargo clause. John Montesano was present for only
half the meeting and Fleischer denied that John was there for the critical
conversation.
35 I credit union attorney Weinmann's testimony that at no time prior
to the instant hearing did Respondent raise the hot cargo clause issue as it
related to the contract, and that Respondent never stated that it would
refuse to sign the contract unless the clause was removed. Even if Re-
spondent's attorney, Kaufman, told Weinmann, as he testified he did, on
November 30, that Respondent would not sign the contract unless the of-
fensive clause was removed, the following day, December I, the Union
executed a settlement agreement in which it agreed to do just that.
"I It is noted, however, that subsequent to the opening of the instant
hearing the parties met twice to negotiate a contract but failed to reach
agreement.
97 I note that one of these meetings was canceled due to the illness of
Respondent counsel's wife. While I sympathize with the reason for the
cancellation, nevertheless, "the fact that the Respondent's chosen bar-
gaining representative may have had no time available to discharge the
client's statutory duty is not a defense that is available to the Employer."
Imperial Tile Company, 227 NLRB 1751, 1754 (1977), and cases cited
therein.
9" B. F. Goodrich General Products Company. etc., 221 NLRB 288, 290
(1975).
314
TAURUS WASTE DISPOSAL, INC.
entire course of action throughout the period after
August 6, 1980, was lacking in a good-faith desire to
arrive at a final agreement with the Union.3 9 Moreover,
by its actions, specifically in stating on November 17 that
it would decertify the Union, in flatly stating on Novem-
ber 30 that it would not meet with the Union, and also in
refusing to bargain pending the resolution of the decerti-
fication petition, Respondent has withdrawn its recogni-
tion of the Union. ,
I, therefore, find and conclude that, by refusing to
meet and bargain with the Union from August 6, 1980,
and by withdrawing recognition from the Union on No-
vember 17, Respondent has violated Section 8(a)(1) and
(5) of the Act.
B. The Alleged Failure 7b Make Fringe Benefit
Payments
The General Counsel alleges and Respondent admits
that, on September 1, Respondent ceased making pay-
ments on behalf of its unit employees into the insurance,
severance, and pension funds provided for in the con-
tract which expired on August 31.
Respondent's argument is that inasmuch as the con-
tract expired it was no longer under an obligation to
make contributions to the funds. Moreover, Respondent
also admitted, apparently in justification of its ceasing
making payments to the Union's funds. that it created its
own pension fund.4 0
[Tihe Board has held that health and welfare and
pension fund plans which are part of an expired
contract constitute an aspect of employee wages
and a term and condition of employment which sur-
vives the expiration of the contract. .... Thus, an
employer may not unilaterally alter payments into
such plans unless: (1) the changes are made subse-
quent to the parties' reaching a bargaining impasse
9 .ntihony Carilh, d/b/a Antonmo's Re.taurant. 246 NLRB 833, 841
(1979); Imperial file Company, supra.
40 It was stipulated by the parties that Respondent created its own
pension fund without prior consultation with the Union. Despite the fact
that this admission and stipulation were made in the first day of hearing,
even before any testimony was taken, counsel for the General Counsel
did not move to amend her complaint until just prior to the last day of
hearing after all parties had rested their cases just prior to the close of
the hearing. Her motion was firstl made in the form of a motion to amend
the complaint to conform the pleadings with the evidence. When ques-
tioned by me, she moved to amend the complaint to allege as a separate
independent allegation of the complaint that Respondent unilaterally es-
tablished its own pension fund in late 1980. Respondent's attorney object-
ed to the motion to amend on the grounds that it was not timely made
and that he would have to adduce evidence from representatives of the
New York State Labor Department. I denied the motion to amend the
complaint on the grounds that it was not timely made and the issue had
not been fully litigated. Counsel for the General Counsel, in her brief,
renewed her motion to amend the complaint. I reaffirm my denial of the
motion to amend the complaint. The motion was not timely made, Re-
spondent was not apprised that it would have to defend against this alle-
gation, and the issue was not fully litigated. Weather Tamer, Inc., 253
NLRB 293, 304 (1980); Kern's Bakeries Inc., 227 NLRB 1329, fn. 1
(1977). Moreover, 'he remedy for this allegation, if proven, would not
add anything to the Order that it cease and desist from making unilateral
changes inasmuch as such an Order would not require that Respondent
discontinue the pension plan granted the employees. Mountaineer Exca-
vwting Co., Inc., 241 NLRB 414, 417-418 (1979). For all of the above rea-
sons, I reaffirm my ruling denying the General Counsel's motion to
amend the complaint.
and the union has rejected the changes prior to the
impasse, (2) the employer demonstrates that, at the
time the changes were made, the union did not rep-
resent a majority of the unit employees or that the
employer had a good-faith doubt, based on objec-
tive considerations, of the union's continuing major-
ity status, or (3) the union has waived its right to
bargain regarding the changes.4 '
It is clear that no impasse occurred. During the hear-
ing, Respondent argued that an impasse had been
reached as to the subcontracting clause because the
Union insisted on its inclusion and Respondent wanted
its exclusion. As set forth in detail above, I find and con-
clude that no impasse occurred as to the subcontracting
clause or as to any issue. Moreover, not only was there
no impasse-there was no bargaining. The parties had
not met even once to negotiate a contract prior to the
instant hearing. 42 As found above, the failure of the par-
ties to meet and bargain was due to Respondent's avoid-
ance of its bargaining obligation. Furthermore, as set
forth above, there was no evidence that the Union did
not represent a majority of the unit employees or that
Respondent had a good-faith doubt, based on objective
considerations, of the Union's continuing majority status.
There was similarly no evidence that the Union had
waived its right to bargain regarding the changes.
Accordingly. I find and conclude that by ceasing
making payments on September 1, in behalf of its unit
employees into the insurance, severance, and pension
funds provided by the parties' contract, Respondent vio-
lated Section 8(a)(l) and (5) of the Act. 43
CONCLUSIONS OF LAW
1. Respondent, Taurus Waste Disposal, Inc., is, and at
all times material herein has been, an employer engaged
in commerce within the meaning of the Act.
2. Private Sanitation Union Local 813, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor orga-
nization within the meaning of the Act.
3. All full-time and regular part-time drivers and driv-
ers' helpers employed by the Respondent at its Sayville,
New York facility, exclusive of all other employees, and
all supervisors as defined in Section 2(11) of the Act,
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
4. At all times since in or about 1975, the Union has
been the exclusive collective-bargaining representative of
the enployees in said unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By refusing, since August 6, 1980, to meet and bar-
gain with the Union, by withdrawing recognition from
the Union on November 17, 1980, as the representative
4i Henry Cauthorne, an Individual t/a Cauthorne Trucking, 256 NLRB
271, and cases cited therein.
4 Union business agent Fleischer's visits to Respondent on October 13
and November 17 were not for the purpose of negotiating a contract. He
was not authorized to negotiate contracts in behalf of the Union.
43 Ilarold W Hinson, d/b/a Hen House Market Na 3, 175 NLRB 596
(1969), enfd. 428 F.2d 133 (8th Cir. 1970).
315
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employees in the appropriate unit, and by unilater-
ally ceasing payments into the Union's insurance, sever-
ance, and pension funds upon the expiration of the 1977-
80 collective-bargaining agreement between Respondent
and the Union, Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(aXl) and (5) of the
Act.
6. The above-described unfair labor practices are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall order Respondent to cease and
desist therefrom, and to take certain affirmative action
designed to effectuate the policies of the Act. I shall rec-
ommend that Respondent make the employees whole by
paying all insurance fund, severance fund, and pension
fund contributions, as provided in the expired collective-
bargaining agreement, which have not been paid and
which would have been paid absent Respondent's unlaw-
ful unilateral discontinuance of such payments, and that
it continue such payments until such time as Respondent
negotiates in good faith with the Union to a new agree-
ment or to an impasse.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER44
The Respondent, Taurus Waste Disposal, Inc., Say-
ville, New York, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to meet and bargain collectively with Pri-
vate Sanitation Union Local 813, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive rep-
resentative of its employees in the appropriate unit de-
scribed as follows:
All full-time and regular part-time drivers and driv-
ers' helpers employed by the Respondent at its Say-
ville, New York facility, exclusive of all other em-
ployees, and all supervisors as defined in Section
2(11) of the Act.
(b) Withdrawing recognition from the Union as the ex-
clusive representative of the employees in the above-de-
scribed appropriate unit.
(c) Unilaterally ceasing payments into the insurance
fund, severance fund, and pension fund provided for in
the collective-bargaining agreement between Respondent
and the Union, which expired on August 31, 1980.
" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
fmdings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Bargain in good faith with Private Sanitation
Union Local 813, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of its
employees in the appropriate unit described as follows:
All full-time and regular part-time drivers and driv-
ers' helpers employed by the Respondent at its Say-
ville, New York facility, exclusive of all other em-
ployees, and all supervisors as defined in Section
2(11) of the Act.
(b) Make its employees whole by paying all insurance,
severance, and pension fund contributions, as provided in
the expired collective-bargaining agreement, which have
not been paid, and which would have been paid absent
Respondent's unlawful unilateral discontinuance of such
payments, and continue such payments until such time as
Respondent negotiates in good faith to a new agreement
or to an impasse.
(c) Post at its Sayville, New York, place of business
copies of the attached notice marked "Appendix." 45
Copies of said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by Re-
spondent's representative, shall be posted by Respondent
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 Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
41 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE WILL NOT unilaterally cease making pay-
ments into the Union's insurance, severance, and
pension funds.
316
TAURUS WASTE DISPOSAL, INC.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section 7
of the Act.
WE WILL make our employees whole by paying
all insurance, severance, and pension fund contribu-
tions, as provided in the expired collective-bargain-
ing agreement, which have not been paid, and
which would have been paid absent our aidlateral
discontinuance of such payments, and continue such
payments until such time as we negotiate in good
faith to a new agreement or to an impasse.
WE WILL bargain collectively in good faith with
the Private Sanitation Union Local 813, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive representative of the employees
in the following unit:
All full-time and regular part-time drivers and
drivers' helpers employed by us at our Sayville,
New York facility, exclusive of all other employ-
ees, and all supervisors as defined in Section
2(11) of the Act.
TAURUS WASTE DISPOSAL, INC.
317