Teamsters Local 85

National Labor Relations Board - Board Decisions

Oct 19, 1973

206 N.L.R.B. 500 (N.L.R.B. 1973)

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters Union Local No. 85, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America and Tyler Bros. Drayage Co.
Case 20-CB-2757
October 19, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On May 7, 1973, Administrative Law Judge Henry
S. Sahm issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief. The General Counsel and the Charg-
ing Party filed briefs supporting the Decision of the
Administrative Law Judge and answering the excep-
tions and brief of Respondent.
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, findings,' .and
,conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order ofthe Administrative Law Judge and hereby
orders that the Respondent, Teamsters Union Local
No. 85, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
San Francisco, California, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order.
i The 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 credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find
no basis for reversing his findings.
DECISION
Introduction
HENRY S. SAIRM, Administrative Law Judge: This case was
heard in San Francisco, California, on December 20, 21,
and 22, 1972,' pursuant to a charge filed the preceding
October 2, and a complaint issued November 10. The com-
plaint alleges that Respondent Union 2 violated Section
8(b)(3) of the National Labor Relations Act, as amended,
in that it had reached complete accord with two freight
companies on the terms of an agreement by which 'T'yler
Bros. Drayage, a trucking company, would perform Air
Land Freight Consolidators, Inc., pickup and delivery air
freight services, but that the Union not only later refused to
reduce to writing the oral agreement previously reached by
the parties, but also allegedly withdrew its prior approval
which it had given to this arrangement between Air Land
and Tyler. The Respondent Union filed its answer denying
generally the commission of any unfair labor practices and
alleged affirmatively that the averments referred to in the
complaint are properly the subject of the grievance proce-
dure contained in the said collective-bargaining agreement,
and therefore the Board should not entertain jurisdiction of
the within matter. At the hearing, Respondent contended
that a binding agreement was never reached whereas the
General Counsel argues that the negotiations between the
parties had culminated in a verbal agreement between the
employers and Union.
Upon the entire record, including observation of the wit-
nesses, and after due consideration of the briefs filed by all
parties on February 20, 1973, there are made the following:
FINDINGS OF FACT
Jurisdiction
Tyler Bros. Drayage Co., herein called Tyler, a partner-
ship with a place of business in San Francisco, California,
is engaged in the transportation of cargo by motortruck. In
the course and conduct of its business operations, during the
past 12 months, Tyler received gross revenue in excess of
$50,000 for transporting cargo in interstate commerce.
Air Land Freight Consolidators, Inc., hereinafter referred
to as Air Land, a California corporation, has been engaged,
at all times material herein, in the business of forwarding air
freight in interstate commerce and foreign commerce. Dur-
ing the past year, Air Land in the course and conduct of its
business operations provided service valued in excess of
$50,000 to customers located outside the State of California.
At all times material herein, Tyler and Air Land have
been, and are, members of the California Trucking Associa-
tion, a voluntary association of employers engaged in the
transportation of cargo, which has represented Tyler and
Air Land in collective-bargaining negotiations with Re-
spondent Union.
No jurisdictional issue is involved as Respondent Union
does not deny the allegations in the complaint, averring that
Tyler and Air Land are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. It is found,
accordingly, that Tyler and Air Land are engaged in com-
merce within the meaning of the Act.
i All dates herein refer to the year 1972, except where otherwise indicated.
2 See Teamsters, Chauffeurs, Warehousemen and Helpers, Local 85, Interna- ,
ttana! Brotherhood of Teamsters, Chauffeurs, .Warehousemen and Helpers elf
America, 186 NLRB 462, fn. I of the Board's Decision.
206 NLRB No. 59
TEAMSTERS LOCAL 85 501
The Respondent Union
Teamsters Union Local No. 85 is a labor organization
within the meaning of Section 2(5) of the Act.
The Testimony
As to whether there was or was not an oral agreement
arrived at by the conferees depends on the precise language
employed by those witnesses who testified with respect to
what occurred at a meeting which was held on or about
September 15, at the offices of the Union, when it is claimed
by the General Counsel that agreement was reached. The
testimony of those negotiators who attended this meeting
has been quoted in haec verba copiously because
Respondent's counsel based virtually his entire defense on
the testimony of Andrade and Leonard, the union business
representatives, and Riddiough, the union shop steward for
Air Land Freight's employees who were represented by
Teamsters Local 85, the Respondent Union. The same con-
sideration applies also to the witnesses of the General Coun-
sel, whose almost exclusive reliance for his case depends on
the testimony of Raymond Reeves and Richard Carlson,
officials of Air Land Freight and Tyler Bros. Drayage Com-
pany, respectively. In the interests of accuracy, all those
witnesses' testimony has been quoted in extenso to avoid the
ambiguities and impreciseness created by paraphrasing. In
fact, the flavor and nuances of all the union witness unique
manner of testifying, which was indeed colorful, if not easily
comprehensible, are incapable frequently of literal transla-
tion or interlineal rewording so that even a metaphrase
might be considered imprecise and too loose.
Raymond Reeves, district manager for Air Land Freight
Consolidators, testified that it operates under a permit is-
sued by the Civil Aeronautics Board,' consolidating air
freight for shipment throughout the United States and the
world. In early 1972, Air Land officials decided because of
economic considerations that it would be necessary to dis-
continue their pickup and delivery service in the San Fran-
cisco area, where they operated five leased trucks and
employed seven drivers, members of the Respondent
Union.
Before effectuating their intention to dispose of their local
freight operation, Reeves met in July with Air Land' s seven
truckdrivers and explained to them the losses the Company
was incurring in their local delivery service and the possibil-
ity that it might be necessary to discontinue it unless operat-
ing costs could be reduced.
Reeves then met in early August with Gordon Kirby,
general Manager of labor relations for the California Truck-
ing Association, of which Air Land is a member . Reeves
inquired of Kirby how Air Land could discontinue its mon-
ey-losing freight delivery operation and have it taken over
by a trucking company. Kirby advised Reeves that two air
freight carriers, Domestic Air Express and Schullman Air
Freight, operating out of the San Francisco Airport, whose
truck drivers had been members of Teamsters Local 85, had
discontinued in the past few years their local pickup and
-1 This permit granted authority to Air Land to pick up and deliver air
freight within a radius of 25 miles from the San Francisco International
Airport.
delivery service because of financial difficulties. Kirby sug-
gested to Reeves that he ask the officials of Local 85 wheth-
er they would agree to Air Land discontinuing its local
delivery service and employing a trucker to take it over.
Reeves contacted various trucking operators and requested
them to submit bids for handling Air Land's pickup and
delivery service in the San Francisco area. Air Land award-
ed the contract to Tyler Bros. Drayage Company, subject to
the approval of the Respondent Union!
Pursuant to its plan to have Tyler assume its pickup and
delivery operations, Reeves arranged for a meeting with
Local 85's officials on August 15. Present for the Union
were Adam Thomas Andrade, "Business Agent or Business
Representative," Andrew Leonard, recording secretary and
business manager for the employers; Reeves for Air Land;
and John Tyler and Russell Carlson, partners in Tyler Bros.
Drayage Company. Reeves advised the union conferees of
Air Land's intention to discontinue its local pickup and
delivery service because of economic reasons and their plan
to have Tyler take over this operation. Reeves testified that
Andrade stated, "he didn't anticipate any problems, but he
couldn't make a decision for the Union until such time as
formal notice was [given] by Air Land" of its intention to
have Tyler take over its pickup and delivery service.
By letter dated August 31, 1972, addressed to Brother-
hood of Teamsters, Local 85, the following notice was
mailed by Air Land:
This is to advise you of our intent to discontinue our
inside cartage operation effective September 25, 1972.
We intend to sub-contract all local pick-up and deliver-
ies to Tyler Bros. Drayage. If there are any areas to this
agreement you care to discuss with us, we would be at
your disposal.
Very truly yours,
/s/ Ray Reeves
Ray Reeves
District Manager
cc: Tyler Bros.
Approximately September 15, another meeting was held
at the union offices .5 The same representatives were present
for Air Land and Tyler; for the Union, Andrade and Rich-
ard Riddiough, union steward for Air Land's seven truck-
drivers. Leonard was unable to be in attendance, explained
Andrade, because he had to attend a funeral but, according
to Reeves, Andrade stated that "he would represent the
Union at the meeting."6
Reeves' version of what occurred at this second meeting
is as follows: The conferees first discussed Air Land's plan
to discontinue its trucking operation and turn it over to
Tyler. In this regard, Reeves agreed to pay all its truckdri-
vers severance pay computed at the rate of $100 for each
year of employment by Air Land. Andrade then raised the
question of how many of Air Land's seven truckdrivers
Tyler would be willing to employ. Carlson estimated that
they could probably hire between two and four of Air
Land's seven drivers, and that they would retain their "ben-
" See G C. Exh. 3, which was executed "the early part of September" and
effective as of September 25.
5 It was stipulated that this meeting was held between September 10 and
15, September 10 was a Sunday.
5 On cross-examination, Reeves phrased it as , Andrade "would handle it
for the Union."
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
efit seniority" acquired while working for Air Land? This
was acceptable to Andrade who then voiced his views with
respect to the seniority rights of Air Land's drivers: his
suggestions was these employees should be placed at the
bottom of Tyler's seniority list in the order of their re-
spective seniority for a period of 3 years. Any additional
drivers, stated Andrade, that Tyler might need in that 3-year
period would have to be hired from that seniority list. It was
then, Reeves testified, that "Mr. John Tyler at that time
jumped up and said `it's a deal,' and Mr. Carlson said it was
something he could live with." ... "I said that could be
agreeable to us, also."
Reeves' testimony continues as follows: "It was then sug-
gested by Mr. Andrade that we should not conclude the
matter, the meeting, then, until such time as we could dis-
cuss, have another meeting, to contact the legal department
from both Air Land and from the Union to work out the
possible wording of any agreement in order to prevent any
back claims in the future. . . . Mr. Andrade gave me the
name and phone number of the lawyers representing Local
85, and he suggested'that I contact Mr. Beeson , and make
an appointment for another meeting with Air Land's coun-
sel and Local 85's legal counsel. "8
After the meeting concluded and Reeves had returned to
his office, two of Air Land's seven truckdrivers, Reasler and
Head, came to his office and told him that Riddiough, their
union steward, had phoned them to relate what had oc-
curred at the meeting. Reeves confirmed that Air Land had
received the Union's approval to discontinue their pickup
and delivery service as of September 25, and that Tyler
would take over and Air Land's seven truckdrivers would
be placed at the bottom of Tyler's seniority list. Reeves
advised them, however, that he did not know the number of
drivers that "were going to be laid off." Later that same day,
another driver, Jack Krahn, expressed his unsolicited dis-
pleasure to Reeves at Air Land discontinuing its truck oper-
ation. Also, testified Reeves, the owner of EFL
Transportation Company, named Palmer, came to his office
a few days later and inquired if Air Land was going out of
the trucking business . When Reeves asked him where he
had received his information, Palmer disclosed that "sever-
al" of Air Land's drivers "had approached him to apply for
a job."
Within 3 days after the above meeting, Reeves met with
four drivers "individually . . . [of the other three] two were
on sick leave, and one was on disability" and notified them
that Air Land's truck operation was being taken over by
Tyler. Reeves testified that he advised them, he "hoped we
could take on as many as we could; that we planned on
paying severance pay, but the final wordings on how many
7 At this point, Riddiough, a truck driver for Air Land, and the Union's
shop steward, interjected that this would mean he no longer had a job, as he
was listed fifth on the seniority roster of Air Land's seven truck drivers
According to Reeves, when "Mr. Riddiough complained ... about him
being number five in seniority, Mr. Andrade said, `that's the way it's going
to be"'
S When Reeves was being examined by counsel for the Charging Party, he
stated that at the conclusion of the meeting Andrade "told me that he thought
it would be advisable that Air Land contact their legal counsel, and in turn
get a hold of the Union 's legal counsel to arrange for another meeting to work
out the wording on the things we agreed to."
drivers and everything had not been worked out with Tyler
Brothers yet."
Based upon the agreement reached with the Union at the
meeting held on or about September 15, Reeves testified
that Tyler expended approximately $16,000 in the week
between the mid-September meeting and the meeting of
September 22 to purchase and install mobile radio-tele-
phone equipment in its office and in all of its trucks. Radio-
telephone transmission and receiving equipment was also
purchased in order for Tyler's dispatcher and truckdrivers
to communicate with one another.
Sometime in September, Air Land gave 30 days' notice to
Avis Truck Rental Company that the contract it had with
Avis for the rental of five trucks for 5 years would be res-
cinded and cancelled.9
The day following the mid-September meeting with the
Union, Reeves testified that in accordance with Andrade's
request, he contacted Duane Beeson, the Union's attorney,
"to go over the legal wording of the matters that we dis-
cussed in the previous meeting. [Beeson] said that he was
aware of the meeting; that he would have a representative
of his firm contact me. . . . He did say that he had talked
to Tom Andrade and was aware of the fact that I was going
to call him.... He just asked me what we had to meet
about and I explained to him . . . that we were planning on
closing down our operation and turning over the freight to
a common carrier."
On or about September 19, Reeves met at Tyler's terminal
with Tyler Bros. truck drivers to advise them of the impend-
ing takeover by Tyler of Air Land's freight operation and
to explain Air Land's procedures so as to familiarize them
as to how Air Land's pickup and delivery service would
mesh into that of Tyler's operation after the transfer on
September 25.10
A day or so later, Attorney Kovach, one of counsel for
the Union, telephoned Reeves stating the Air Land matter
had been assigned to him by his colleague Beeson, and that
he would meet with both the employers and the Union's
representatives on September 22.
The conferees met on September 22. In addition to Attor-
ney Kovach, the following were present: Andrade, Leonard,
Riddiough, Carlson, Tyler, and Reeves. Kovach opened the
meeting by reading various provisions of the current Na-
tional Master Freight Agreement. Reeves' testimony reads
as follows:
Mr. Kovach opened the meeting by reading various
sections of the contract, the National Master Freight
Agreement, that would pertain to what we were talking
about: our going out of business and Tyler Brothers
taking over. He read various sections from the contract,
and he then stated that the contract allowed for agree-
ments to be reached between the Union and the em-
ployers if it was mutually agreed upon by the Employer
9 Under the terms of this contract, the trucks were returned to Avis which
sold them and applied the proceeds to the amount owing on the rental
contract There was a deficit of $3,000 on the resale price which Air Land
paid Avis.
10 Carlson (who was present at this meeting) stated Reeves met with Tyler's
drivers "in order to fanuliarize [them] with the paperwork and procedures of
Air Land in picking up and delivering the freight... "
TEAMSTERS LOCAL 85 503
and the Union. And then he said that his only purpose
for being there was to get an interpretation of the con-
tract and excused himself. . . . I do not know what
sections he read. . . . I did not understand everything
he was saying, why he was reading these various sec-
tions.... Well, from what he said as he left, he said
that whatever we worked out, if it was agreed upon
between the Employer and the Union, that he did not
feel there would be any legal problems involved in it
. . . .it When he [Kovach] left, Mr. Leonard then took
over the meeting and stated that Air Land had seven
men on the seniority list at the airport, and that he had
no intention of these seven men being out of work; that
the men would retain their jobs, or else pay claims
would be filed [against Air Land Freight]. 2
Then Mr. Tyler jumped up and said that's not what we
agreed on before. Mr. Leonard said you have no agree-
ment. And then I [Reeves] asked Mr. Leonard, I said
that it was my understanding that we would have two
to four men of [Air Land] go to work [for Tyler Broth-
ers], why all of a sudden it's changed and we need all
seven of them. Mr. Leonard said "I have nothing fur-
ther to say," and left the room. . . . Mr. Carlson ...
asked Mr. Andrade what had happened, why the
.change from what we talked about last time. Andrade
... said nothing, except to state I guess you'll have to
go back to the drawing board.
On October 13, Leonard phoned him , testified Reeves,
and stated he would like to have another meeting but
Reeves told him that he was going to be out of town the
following day, and that he would call him back as soon as
he returned and arrange for such a meeting. When Reeves
returned on October 17, he called Leonard and Leonard,
according to Reeves, "told me that his position hadn't
changed at all. He didn't want another meeting."
On November 9, Air Land terminated its seven truckdri-
vers as of the close of business, although their last day of
work was September 9, and they were paid through Novem-
ber 9, but received no severance pay. As of November 9,
Tyler was unable to hire any of Air Land's truck drivers
because the Union refused them permission to accept jobs
with Tyler.
Russell Carlson, a partner in Tyler Bros. Drayage Com-
pany, which operates under a license issued by the Interstate
Commerce Commission, was present at the August 15, mid-
September, and September 22 meetings. He corroborated
Reeves' testimony. After the second meeting ended, Carlson
testified, "We had an agreement as far as we were con-
11 While he was under cross-examination , the undersigned asked Reeves
what his understanding was of what Kovach was reading and his answer was,
that he was "assuming that we were going to be working out an agreement
that had already been reached."
12 On cross-examination, Reeves worded this incident as follows "Mr.
Leonard then stated that-we had seven men at the barn; it was his position
that this was subcontracting ; that all our people would retain their jobs, or
he would ... file claims for any day they were off ... and that all the
matters that had been agreed upon at the last meeting , they didn't mean a
thing.... "
cerned.13 Tom [Andrade] suggested getting our attorneys
and bringing them in, just for wording the agreement legally
so there wouldn't be any repercussions at a further meet-
ing." He continued that their agreement to take over Air
Land's trucking operation as of September 25, was delayed
until November 8, because of the Union's refusal to honor
the agreement reached at the second meeting on or about
September 15. At the September 22 meeting, testified Carl-
son, Kovach "said that anything that was agreeable be-
tween both parties . . . was all right according to the
provisions in the contract [National Master Freight Agree-
ment]."
Carlson credibly testified that Local 85, Respondent
Union', had approved an agreement in the past 18 to 24
months between Domestic Air Express (which has a termi-
nal at San Francisco International Airport) and Tyler,
whereby the latter "took over the drayage for Domestic Air
Express."14 Carlson continued that Andrade "was the busi-
ness agent handling the operation of their [Domestic Air
Express] going out of business for the Union, but we actual-
ly didn't have any meetings like this. We didn't have any
problems with it. We didn't take any of the-drivers. And
Andrade negotiated the whole thing with Domestic Air Ex-
press." Carlson stated that he negotiated the entire matter
solely with Andrade; no other union official participated.
It might be well before discussing the testimony of the
Union's witnesses to point out that there emerges from the
testimony of the General Counsel's witnesses the salient
issue in this proceeding: namely, what the conferees did or
did not agree upon at the second meeting on or about Sep-
tember 15. In order to make this determination, it will be
necessary to quote the testimony of the Union's witnesses
extensively as their obfuscated language, in some instances,
is difficult if not impossible, to paraphrase.
Adam Thomas Andrade, who referred to himself as both
business agent and business representative of the Respon-
dent Union, has held this position for approximately 14
years. He acknowledged he was "an experienced" business
agent. He testified that he first learned in April or May "out
in the street" that Air Land was "anticipating on going out
of the trucking business."
The following is Andrade's version of what occurred at
the second meeting held between September 11 and 15:
Tyler . . . told me he wanted to discuss the possibility
of finding out how they could turn around and go
about taking over Air-Land's pickup and delivery busi-
ness . . . . I told Mr. Tyler that under the letter they
sent to us by Air Land, the letter stated that they want-
ed to subcontract their inner-cartage or drayage to Tyl-
er Brothers. And I told him that this could not be done
under the way the letter was written. Mr. Carlson
turned around, and he had the Joint Council 7'Book,
Local Pickup and Delivery Book, in his hankerchief
coat pocket, Mr. Carlson said that he couldn't see why
they couldn't do it, and I told Mr. Carlson that under
13 Carlson explained that the parties had reached agreement at the second
meeting and that the purpose of the September 22 meeting was to put it into
"Ie&al wording" and incorporate it into a written contract.
Andrade estimated Domestic Air Express gave up their local delivery
service about 3 years ago.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
the letter and under the subcontracting, that they
couldn 't do it. He "said show me where in this agree-
ment it says that I can't do it." . . . I told Mr. Carlson
that he didn't know what he was talking about. I got
up from the table, went into the front office and got a
Master Freight Agreement. . . . The first thing that I
read to the three parties and directly to Mr. Carlson,
was the subcontracting clause. . . . Carlson said that
he couldn 't see where this was subcontracting and him
and I debated this back and forth. Then Mr. Tyler .. .
says to Mr. Carlson for him to keep quiet , and he asked
me that if Mr. Tyler did, he says, "Tom, what if we
done it under the merger, sale , and acquisition part of
the agreement?" I told Mr. Tyler, I says, "Mr. Tyler,
this is not what you're asking. You people already told
us- that you were not buying anything; you were not
merging; and therefore I cannot turn around and tell
you anything about a merger or a sale or anything
else." Then Mr. Carlson interrupted again, and he says,
"Well, what if we do go to the merger?" And I told Mr.
Carlson that if they went to a merger or applied the
merger, that there was certain paragraphs under this
agreement, under the article of the merger , which spells
it out more in the Master Freight Agreement. And
that's when I read to them the merger , sale, acquisition,
bankruptcy clause out of the Master. . . . After I read
that to them, then Mr. Reeves spoke up, and he says,
"We can 't use that article for the simple reason that
we're not selling ; we're not merging anything." Then
Mr. Tyler turned around and said to me, "Tom," he
says, "but what if we did merge, or if there was a
possibility that we bought anything? How would it
work?" And I read to him again how it would work
.. I read to him that if they were to merge, the
people on the Air Land seniority list would have the
right to go over to Tyler Brothers on work availability
.... It means that if at the time of the merger, if Tyler
Brothers needed a driver, he would have to turn around
and take the first top man , and insert him into the
seniority list for the sole purpose of layoff seniority,
vacation seniority , and health and welfare , or all bene-
fits under the contract.
Mr. Carlson . . . says, "We cannot live with that
because we've got ten good men employed . They've
been good people , and we want to maintain them. We
don't want them to get laid off. . . . I turned around
and told the parties involved , that is directing all three
of them , that if this is what they were going to do, that
this is the way that the merger turns around and works.
The seniority clause-this is the way it does. You can't
do it no other way. . . . Mr. Tyler turned around, and
again asked Mr . Carlson to keep quiet , that he says,
"Tom, if that's the only way that we can turn around
and accomplish getting Air Land's business , then this
is the way we'll eventually have to go." What Mr. Tyler
... told me, he says, "Whatever way we go, we have
to turn around and get this account in order to stay in
business ."- And I told Mr. Tyler at that time that this
was his own internal problem and not the Union's
problem. . . . I turned around and told Mr . Reeves
just before we adjourned that the best thing that Air
Land could do would be to turn around and get ahold
of our attorney, and let them go from there... .
Andrade 's version of the September 22 meeting is as fol-
lows:
When we went in, Mr. Kovach opened the proceedings
by asking the parties involved, which I think he direct-
ed to Mr. Reeves , where his counsel was. I think Mr.
Reeves stated . . . that the Company didn't-see fit
where they needed any counsel or not. And Mr. Ko-
vach turned around and opened up-I think he had
both agreements. . . . Local Pickup and Delivery
Agreement . And he started to quote the subcontracting
section; that as far as the legal advice , as far as the
Union was concerned , that this was subcontracting.
And Mr. Leonard interrupted and says, "I stated my
position before . I'm going to state it again , that as far
as the Union is concerned, this is subcontracting
.... " Then Mr. Kovach stated that there was-un-
der the agreement-that a company [Air Land] and the
Union could turn around and agree to negotiate.. ; .
Under the contract, the Local Pickup and Delivery
Agreement-that if the Company Air Land, and the
Union wanted to agree to sit down and negotiate, that
there was room under the agreement to negotiate. And
if I remember correctly, I think at that time he [Ko-
vach] quoted such as severance pay. . . . At that point,
Mr. Kovach excused himself , and Mr. Leonard repeat-
ed himself again by saying that his position was clear
that it was subcontracting, and he walked out of the
conference room. . . . At that point we adjourned.
When Andrade was asked on direct examination whether
he represented to the officials of Tyler and Air Land at the
second meeting that he "had authority to represent the
Union," his answer was he did not.
Andrew Leonard has been recording secretary and busi-
ness manager of Teamsters Local 85 since April 16, 1971.
Prior to that he was dispatcher for 18 months and an "or-
ganizer" since 1967. The Union's contracts with both Air
Land and Tyler Bros. he stated, are "identical," and effec-
tive until June 30, 1973 . When mention was made of Air
Land's desire to dispose of its local pickup and delivery
service and engage Tyler to take it over, Leonard testified
that the question involved was one of "subcontracting."
When he was asked to explain this, he stated that Air Land
had no right to "subcontract" their trucking operation and
consequently, they were not only required to continue to
operate it , but if they should dispose of it, resulting in their
seven truckdrivers losing their jobs, Air Land would be
liable for paying them their wages up until the expiration on
June 30 , 1973, of the current collective-bargaining agree-
ment.
Richard Riddiough, truckdriver for Air Land and shop
TEAMSTERS LOCAL 85 505
steward for the drivers represented by Local 85, testified
that he learned in July that Air Land was planning to dis-
pose of their trucking operation. Riddiough's version of the
second meeting added nothing to what Andrade testified.
He appeared to imply that agreement had been reached by
the conferees as to how seniority would be determined for
Air Land's drivers when its trucking operation was taken
over by Tyler. In this regard, Riddiough stated he remons-
trated with Andrade because, under Andrade's formula for
determining the drivers' seniority, he would lose his job.
When he was asked by Respondent's counsel if Andrade
responded to this complaint of his at the meeting, Rid-
diough said: "No, he didn't " Riddiough also testified that
Andrade told Reeves, Carlson, and Tyler at this second
meeting, at which Leonard was not present, that "he was
representing Mr. Leonard or the Union to fulfill the Union
meeting, because Mr. Leonard was not there."
Respondent's counsel called both Carlson and Reeves to
testify as "adverse witnesses." They both testified that they
did not recall any mention of "subcontracting" by any of
the participants at the second meeting held between Sep-
tember 11 and 15.
Charging Party's Exhibit I is attached to this Decision as
Appendix B. It states Air Land's understanding of the
agreement reached by the parties.
Credibility
The witnesses for the General Counsel and Respondent
are in conflict as to the salient issues in this case. Neverthe-
less, after observing the witnesses, analyzing the record and
inferences to be drawn therefrom, this conflict in testimony
is resolved in favor of the versions told by the General
Counsel's witnesses. Based upon the foregoing recital of the
facts in this case, the demeanor of the witnesses in testifying,
and upon the substantial evidence on the record appraised
as a whole, and on the straightforward testimony of the
General Counsel's witnesses, the testimony of Andrade and
Leonard, the union officials, is not credited. Their turbid
and turgid recital, often incomprehensible and lacking plau-
sibility, 5 vague and equivocal denials, self-contradictions,
and disposition to fence with counsel, militate against as-
cribing credence to their version of what occurred with
respect to the issues in this proceeding. The cross-examina-
tions of both the General Counsel and counsel for the
Charging Party were mostly unsuccessful at breaking
through the opacity of Respondent's witnesses' answers be-
cause of the ambiguous nature of their testimony.
Moreover, many of Andrade's answers were voiced in
response to leading and suggestive questions propounded
by Respondent's counsel which also militates against the
weight to be given his testimony. Furthermore, as the vice
in counsel asking his witness leading questions is that they
suggest the desired answers, which the witness will merely
adopt, it may seem futile to object once such a question has
been asked and the desired answer suggested. Little proba-
tive value has been given to such testimony thus elicited,
15 As for example, Andrade's denial that the seniority of Air Land's driv-
ers, and their severance pay was discussed at the mid-September meeting or
the number of Air Land's drivers that Tyler estimated it would hire.
particularly in view of the cogent fact that counsel persisted
in, asking leading and suggestive questions although request-
ed by the undersigned to desist from continuing to do so.16
Conclusions
Section 8(b)(3) of the Act provides that it shall be an
unfair labor practice for a union "to refuse to bargain col-
lectively with an employer.... " The duty to bargain col-
lectively is defined by Section 8(d) of the Act and includes,
inter alia: "the execution of a written contract incorporating
any agreement reached if requested by either party." Thus,
it is well settled that the failure and refusal of either an
employer or a labor union to execute, upon request, an
agreement reached by all the parties thereto constitutes a
refusal to bargain in violation of the Act.t7
The legislative history of Section 8(b)(3) indicates that
Congress intended thereby to place upon unions the same
duty to bargain in good faith which it had imposed upon
employers. As the Supreme Court observed in N.L.R.B. v.
Insurance Agents' Union, 361 U.S. 477, 487 (1960):
Unions obviously are formed for the very purpose of
bargaining collectively; but the legislative history
makes it plain that Congress was wary of the position
of some unions, and wanted to ensure that they would
approach the bargaining table with the same attitude of
willingness to reach an agreement as had been enjoined
on management earlier. It intended to prevent employ-
ee representatives from putting forth the same, "take it
or leave it" attitude that had been condemned in man-
agement.
Since the union officials admit their refusal to execute a
contract, as there was no meeting of the minds, the determi-
native issue is whether a final agreement had been reached
by the Union and Companies at the second meeting on or
about September 15. Based upon the reasons hereinafter
explicated, it is found that Respondent Union Local 95 of
the Teamsters and the two Companies reached full accord
and when the Union subsequently withdrew its prior p-
proval, it thereby violated Section 8(b)(3) of the Act. Sup-
port for this finding is provided by the events during and
following the mid-September meeting, as delineated below.
When Reeves returned to his office after this mid-Sep-
tember meeting with Andrade, Reasler and Head, two of
Air Land's seven truckdrivers, came to his office and told
him that Riddiough, their union steward, had telephoned
them to relate what had occurred at the meeting. Reeves
confirmed what they had heard from Riddiough, namely
that Air Land had received the employees' Union's approv-
al to discontinue its pickup and delivery service as of Sep-
tember 25, and that Tyler would take over, and Air Land's
seven truckdrivers would be placed at the bottom of Tyler
16 See Liberty Coach, 128 NLRB 160.
"H H J. Heinz Co v. N L R. B., 311 U.S. 514, 523-526; NLRB. v.
Warehousemen 's Union Local 17, International Longshoremen's &
Warehousemen 's Union, 451 F.2d 1240 (C.A. 9, 1971); N.L.R B. v. Internation-
al Union of Elevator Constructors, Local No 8,465 F.2d 974, 975, (C.A . 9, 19);
Standard Oil of Ohio v. N.L R B., 322 F.2d 40, 45 (C.A. 6, 1963); N.L R.B.
v Ogle Protection Service, 375 F 2d 497, 500 (C.A. 6, 1967), cert. denied 389
U.S. 843 (1967).
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brothers' seniority list. Jack Krahn, an Air Land driver, the
same day as the mid-September meeting, also indicated to
Reeves his displeasure of the agreement to phase out Air
Land's delivery operation. Further support for this finding
that agreement was reached is an incident involving Palmer,
the owner of EFL Transportation Company, advising
Reeves a few days later that several Air Land drivers had
applied for jobs with his company. Corroborative also of
this finding that agreement was reached at the second meet-
ing in mid-September is the investment by Tyler of approxi-
mately $16,000 in communications equipment. Also Air
Land's disposal at a loss of $3,000 of its rental delivery
trucks. Probative also of this finding that it was agreed Tyler
would take over Air Land's delivery operation, is Reeves'
meeting with Tyler's drivers on or about September 19, to
familiarize them with Air Land's pickup and delivery re-
quirements.
Moreover, at no time during the negotiations at the sec-
ond meeting or at any time between that meeting on or
about September 15, and the one on September 22, did
Andrade inform Reeves, Carlson, or Tyler that he did not
consider agreement was reached. His failure to do so lends
credence to the finding that agreement was reached at this
second meeting. Notwithstanding this obvious agreement
between the parties, Respondent argues that only a tentative
agreement was reached and that it was not final and binding
until their attorneys approved. Andrade's words and actions
undermine the validity of this contention as the record
clearly shows that the purpose of the September 22 meeting
was merely for counsel to draft legalistic language in reduc-
ing the parties' previously arrived at oral agreement to wast-
ing. Corroborative of this finding is Andrade, at the
conclusion of the meeting, giving Reeves the telephone
number of Attorney Beeson , the Union's lawyer.
As mentioned above, Andrade, who attended all the ne-
gotiating sessions , never once voiced any disagreement with
the proposals presented by the conferees. In fact, it was
Andrade who served to bung the negotiations to a fruitful
conclusion, for as the record shows, his plan for resolving
the seniority status of Air Land's drivers clinched agreement
on the part of the Companies thereby settling all substantive
terms and giving rise to full agreement. It will be recalled
that the parties agreed on severance pay of $100 per year
and Air Land's drivers being placed at the bottom of Tyler's
seniority roster for 3 years with their retaining the benefits
of seniority which they had acquired while in the employ of
Air Land. When John Tyler at this point accepted along
with Carlson and Reeves, there can be no doubt that a
meeting of the minds was reached whereby the Union
agreed to each of the provisions necessary for Tyler to take
over Air Land's drayage operations. Conclusive of this find-
ing is Union Shop Steward Riddiough's uncontradicted tes-
timony that when agreement was reached at the meeting, he
complained to Andrade that because of insufficient seniori-
ty, this meant he no longer had a job, to which Andrade
made no response. 18 It is not too unreasonable to infer that
18 Reeves' version of this incident is that when Riddiough complained,
Andrade said- "[Tlhat's the way it is going to be " Carlson' s testimony
regarding this incident is that Andrade told Riddiough, "Well, that's the way
it is, you know, and that's the way it stands "
Andrade's silence in failing to respond to Riddiough's com-
plaint is cogently probative of the fact that his silence re-
flects that he, too, considered agreement had been reached
for Tyler to take over, thereby resulting in Riddiough's pos-
sibilities of being hired by Tyler being lessened because of
insufficient seniority.19
Andrade's contention that he did not possess the requisite
authority to enter into an agreement with Reeves, Tyler and
Carlson, and that the reason for his presence at the mid-
September meeting was for him merely to listen to the
Company's Proposals, is not only contrary to the evidence,
but also strains, if not shatters, one's credulity. Later, he
inconsistently testified: " . . . I am the Business Agent rep-
resenting the airport when Mr. Leonard could not be in
attendance" [at the second meeting]. Andrade, after much
fencing with counsel, reluctantly admitted he is responsible
exclusively for the interests of approximately 1,500 union
members at San Francisco International Airport, who are
employed by 10 airport companies with whom the Union
has collective-bargaining agreements. The record discloses
that if any of these union members had a problem or a
grievance to be processed, it was Andrade who handled it.
Respondent contends that Leonard held the highest posi-
tion in Local 85's hierarchy. Leonard's testimony, however,
reveals a paucity of knowledge regarding the internal func-
tioning of the Union. Carlson testified that Leonard said
nothing of a substantive nature at the Press Club meeting
on August 15. The record reveals that Andrade did virtually
most of the talking on behalf of the Union at this meeting.
Then, too, Leonard absented himself from the crucial sec-
ond meeting. This is indicative that his role was not only
titular but that his presence was not necessary for agreement
to be reached by Andrade. In point of fact, Andrade never
indicated to the conferees at the second meeting that he did
not have the requisite negotiating authority. Moreover, this
claim of lack of authority is negated by the company offi-
cials' reliance on the substantive proposals presented and
accepted on behalf of the Union by Andrade. He described
himself as "an experienced business agent" of 14 years'
duration, whereas it appears that Leonard's advent as an
official of the Union occurred as recently as April 16, 1971,
when he became recording secretary and business manager.
In this context, Riddiough's nubilous testimony that An-
drade at the outset of the mid-September meeting assured
Air Land's and Tyler's officials that "he was representing
Mr. Leonard or the Union to fulfill the Union meeting,
because Mr. Leonard was not there," lends light to the
conclusion that Andrade was authorized to negotiate and
enter into this agreement. Equally cogent, if not dispositive
of the extent of Andrade's authority, is the credited testimo-
ny of Carlson that Andrade was the sole negotiator for
Respondent Union about 2 years before when, in an identi-
cal situation, Carlson on behalf of Tyler, negotiated an
agreement whereby Tyler took over the local pickup and
delivery service of Domestic Air Express, a competitor of
Air Land 20
It would seem , moreover, that if Andrade did not have
19 It will be recalled that Carlson estimated Tyler would hire two to four
of Air Land's drivers.
20 See above
TEAMSTERS LOCAL 85 507
authority to negotiate an agreement, the natural thing
would have been for him to notify the company representa-
tives. For him to continue with the meeting, without disclos-
ing that he lacked authority, would not only have been
deceitful but also a waste of time as well as an exercise in
futility. In this posture, if is not too unreasonable to con-
clude that Andrade did have the requisite authority. This
finding is supported by Reeves' credited testimony that An-
drade announced at the outset of the second meeting that
"he would represent the Union at the meeting."']
To paraphrase what the Court of Appeals for the Ninth
Circuit stated in N.L.R.B. v. Industrial Wire Products Co.,
455 F.2d 673, 679 (1972): To hold otherwise, would be
tantamount to raising to dignity the argument proffered by
the union and thus sanction the investiture of ostensible
authority without any consequences resulting therefrom.
Neither can negotiators charged with the ultimate responsi-
bility of approving or rejecting collective-bargaining agree-
ments be permitted to remain mute in the presence of a
negotiated accord and to later let them catch their tongues
at a moment they deem most likely to frustrate the progress
that has culminated in agreement.
The evidence for the reasons stated above belies
Respondent's defense that Andrade did not have the requi-
site authority to negotiate the agreement in issue.
Respondent's lack of authority defense rings hollow in the
face of Andrade's actions which show he was in complete
charge of the negotiations despite his protestations to the
contrary. Moreover, it is not believed, based on the realities
of the situation here present, that all Local 85's agreements
entered into with employers must bear the imprimatur of
Leonard as the evidence reveals his role in the negotiations
here was minimal as contrasted to that of Andrade. Under
the circumstances here revealed, where Andrade's authority
is clearly established, despite his assertion that he was not
authorized to enter into the agreement with Reeves, Carl-
son, and Tyler, might be considered questionable after-the-
fact rationalization, insufficient to explain Respondent's
conduct in repudiating the agreement previously made. This
may properly be regarded with some suspicion and cause
one to conjecture whether the union representatives' disa-
vowal might be explained in terms of ,their having second
thoughts about their previously made commitment to Air
Land and Tyler whereby they agreed to Tyler taking over
Air Land's delivery operation. Not only does substantial
evidence warrant this conclusion, but it is also well settled
that the "withdrawal by a [party] of contract proposals,
tentatively agreed to by [the parties] in earlier bargaining
sessions, without good cause, is evidence of lack of good
faith bargaining by the [Union] in violation of Section
8(b)(3) of the Act.... "22
Section 2(2) of the Act holds a labor organization respon-
sible for the acts of its agents just as it holds an employer
responsible for the conduct of his agents. The test for de-
termining such responsibility is the law of agency as it has
been developed at common law.23 It is a familiar rule of
agency that a principal is responsible for the acts of his
agent done in furtherance of the principal's interest and
within the scope of the agent's general authority. It is
enough if the principal has empowered the agent to repre-
sent him in the area in which the agent acted 24 In fact,
Congress specifically provided in Section 2(13) of the Act
that in determining the agent's authority, "the question of
whether the specific acts performed were actually author-
ized or subsequently ratified shall not be controlling."
Based on these principles, it is found that Andrade had the
authority to enter into the agreement with the officials of
Air Land and Tyler.
Finally, Respondent argues that consideration of this
proceeding should be deferred until such time as resort is
had to the contractual grievances provided for in the collec-
tive-bargaining agreement to which all parties herein are
signatories. The basis for this contention, states Respon-
dent, are the holdings in Collyer Insulated Wire, 192 NLRB
837, and Brotherhood of Teamsters & Auto Truck Drivers
Local No. 70, 198 NLRB No. 4.
In Collyer, the company had made certain changes in the
wages and working conditions of its employees. When the
union charged that the company's actions were in violation
of Section 8(a)(5) and (1) of the Act, the company asserted
that its actions were sanctioned by the parties' collective-
bargaining agreement and course of dealing. The company
further contended that any of its actions in excess of con-
tractual authorization should properly have been remedied
by grievance and arbitration proceedings, as provided in the
contract. Thus, the company urged the Board to withhold
its processes, and defer to the arbitration procedure.
The Board agreed that this procedure would be appropri-
ate under the circumstances there presented. In so doing, it
recognized that where "a set of facts . . . presents not only
an alleged violation of the Act but also an alleged breach
of contract," the decision whether to defer to the contractu-
al remedy agreed upon by the parties involves an accommo-
dation between "the statutory policy reflected by Congress'
grant to the Board of exclusive jurisdiction to remedy unfair
labor practices" and `,`the statutory policy favoring the full-
est use of collective bargaining and the arbitrary process."
In making that accommodation the Board observed that, in
its view, "disputes such as these can better be resolved by
arbitrators with special skill and experience in decidingmat-
ters arising under established bargaining relationships than
by the application by this Board of a particular provision of
our statute."
The Board then concluded that it should defer to the
arbitral process contained in the parties' contract because
(1) the "dispute arises within the confines of a long and
productive collective-bargaining relationship," (2) "no
claim is made of enmity by [the Company] to employees'
exercise of protected rights," (3) the Company "has credibly
asserted its willingness to resort to arbitration," and (4) "the
dispute is one eminently well suited to resolution by arbitra-
21 See fn. 6 above 23 See H. Rep 245 on H R. 3020, 80th Cong., 1st Sess., p. 11, Conf. Rep.22 American Seating Company v. N LR B, 424 F 2d 106, 108 (C A. 5, 1970), 510 on H.R. 3020, 80th Cong., 1st Sess , p 36, Senator Taft, Supplementary
enfg. 176 NLRB 850; N.L.R B. v. A. W. Thompson, Inc, 449 F.2d. 133 (C A. Analysis of the Act, 93d Cong Rec 6858-6859
5, 1970), enfg. 184 NLRB 119. 24 Restatement of Agency, §§ 219, 228, 230, 233, 234
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion." Concerning this last factor, the Board elaborated as
follows: -
The contract and its meaning . . . he at the center of
this dispute. In contrast, the Act and its policies be-
come involved only if it is determined that the agree-
ment between the parties examined in the light of its
negotiating history and the practices of the parties
thereunder, did not sanction [the company's] right to
make the disputed changes, subject to review if sought
by the Union, under the contractually prescribed pro-
cedure. That threshold determination is clearly within
the expertise of;'a mutually agreed-upon arbitrator. In
this regard, we note, especially that here . . . the dis-
pute between these parties is the very stuff of labor
contract arbitration. The competence of a mutually
selected arbitrator to decide the issue and fashion an
appropriate remedy, if needed, can no longer be gain-
said. (192 NLRB at 842.)
Teamsters Local 70, 198 NLRB No. 4, cited by Respon-
dent, involved an alleged violation of Section 8(b)(3), in that
the union refused to be bound by provisions of a contract
requiring National Biscuit Company drivers of bakery
trucks to make cash collections and by unilaterally altering
terms and conditions of employment by directing and re-
quiring its member-drivers to cease making cash collections.
The union justified its actions, stating that after a number
of armed robberies and related beatings which victimized
delivery drivers, it had requested Nabisco and two competi-
tors that they have their drivers stop collecting cash and
post signs on their trucks indicating the drivers did not carry
any money. However, Nabisco continued to require its driv-
ers to pick up cash on delivery.
A Board majority decided the dispute in that case to be
essentially a dispute over terms and meaning of a contract
between the employer and the union, in that the resolution
of the dispute depends upon a determination of the correct
interpretation of the contract, and for that reason, the
Board found merit in union exceptions to the Trial
Examiner's unfair labor practice findings and dismissed the
complaint. However, jurisdiction was retained by the Board
for the limited purpose of entertaining an appropriate and
timely motion for further consideration upon proper show-
ing that the dispute has not, with reasonable promptness,
after issuance of the Board's decision, been resolved by
amicable settlement under the grievance procedure or sub-
mitted to arbitration. The Board also stated that it retained
jurisdiction, in the event that the grievance or arbitration
procedures should reach a result repugnant to the Act or the
decision of the arbitrator and not be wholly dispostitive of
the issues in this proceeding.
Chairman Miller and Members Kennedy and Penello
noted that underlying the complaint was the premise that
the existing contract required drivers to make cash collec-
tions, and the further premise that there was an established
practice of making cash collections which was preserved
intact by the established past practice provisions of the
contract. Thus, concluded the majority, resolution of the
dispute necessarily depends on a determination of the cor-
rect interpretation of a contract, and as in Collyer, held the
majority, it is this type of dispute which can better be re-
solved by an arbitrator than by the Board. The majority
pointed out that although the contractual provisions in this
case, unlike those in Collyer, do not compel arbitration,
unless both parties agree, the contract does provide for
mandatory submission to a bipartite panel of union and
employer representatives, which makes final determination
as to whether arbitration may be invoked. Moreover, stated
the majority, the Board has deferred to same bipartite provi-
sions in appropriate cases where the issue before the Board
was whether to accept a determination already made.
Dissenting Members Fanning and Jenkins observed that
the majority decision represents another extension of its
Collyer doctrine and is detrimental to sound labor relations.
The dissenting Members pointed out that not only does the
collective-bargaining agreement clearly eschew arbitration
as the required method of interpreting their contractual
commitment, but also the majority decision does not en-
courage the use of arbitration in the resolution of labor
disputes, but rather, as indicated in the parties' supplemen-
tal agreement, is encouraging the parties, who have not
mutually agreed to use an arbitrator, to engage in a strike
or lockout to settle the dispute. The minority decision also
took note that the employer had not attempted to have the
dispute resolved through the parties' contractual machinery
and that the time limit for use of that machinery has ex-
pired. Further, the dissenters continued, arbitration is not a
necessary element of that machinery and is specifically re-
jected if the, parties are deadlocked.
Not only are the two cases, Collyer and Teamsters Local
70, supra, cited by counsel for the Respondent, inapposite,
but also his defense that inasmuch as the collective-bargain-
ing agreement between Air Land and the Union provides
for a grievance procedure to resolve "all grievances or ques-
tions of interpretation arising under the Master Agreement
or Supplemental Agreements...... that the Board should
defer to that procedure is without merit, for the reasons
hereinafter indicated.25 Moreover, contends Respondent,
the Union, in the case at bar, filed a grievance, under the
provisions of the contract, alleging it was "improper" for
Air Land to have Tyler take over its drayage.26
In Collyer, supra, the Board noted that "Although Section
10(a) of the Act clearly vests the Board with jurisdiction
over conduct which constitutes a violation of Section 8,
notwithstanding the existence of methods of `adjustment or
prevention that might be established by agreement,' nothing
in the Act intimates that the Board must exercise jurisdic-
tion where such methods exist." The Board in Collyer did
defer to arbitration. However, unlike the present case, the
Collyer case involved a situation where the resolution of the
dispute turned on the interpretation of specific contractual
provisions. The prerequisites for the application of Collyer
do not exist here because here there is no issue involved
which relates to the very essence of the collective-bargaining
25 Resp. Exh 1, 8, 31, et seq., and Resp. Exh. 2, Art. 44, p. 12, et seq.
26 The grievance, which was heard by the labor-management committee on
December 7, 1972, resulted in a deadlock At the time of this hearing in
December, the matter had been appealed to the joint committee, as provided
in the collective-bargaining agreement, and was scheduled to be heard the
second week in February 1973
TEAMSTERS LOCAL 85 509
agreement and the interpretation to be made therefrom. In
the instant case, the problem presented is not one of con-
tract but whether the parties reached agreement. As it has
already been found that such an accord was reached on or
about September 15, this new agreement would necessarily
be supplemental to the parties' 1970 collective-bargaining
agreement.
However, the grievance machinery under the existing col-
lective-bargaining agreements (Resp.Exh. 1 and 2) have no
provisions capable of deciding the salient issue here, name-
ly, whether the parties mutually agreed on a new, supple-
mental contract provision. Sec. 7, art. 44, p. 18 of the
supplemental agreement of Joint Council No. 7 limits the
arbitrator's authority "to the matter submitted to him and
he shall have no authority to amend, alter or change any
provision of this Agreement in any manner."27 Therefore,
Respondent's refusal to reduce the oral accord to writing
and to execute a written agreement incorporating the sup-
plemental agreement reached with Air Land and Tyler on
or about September 15 is an unfair labor practice and a
violation of Section 8(b)(3) of the Act 28
Inasmuch as the question of whether agreement was
reached is beyond the arbitrator's competency, because it is
not within the scope of the contract grievance provision, nor
encompassed by the deferral to arbitration holding of the
Board in Collyer, in that the unfair labor practice found
herein is not so "intimately entwined" with matters of con-
tract interpretation as to warrant such deferral.29 Accord-
ingly, the new supplemental agreement reached by the
parties is beyond the competency of the arbitrator to con-
sider as the arbitrator's authority by the terms of the con-
tract does not permit him "to amend, alter or change any
provision" of said contract 30
The Board has held, under circumstances similar to those
here present, that it will assert its jurisdiction under Section
10(a) of the Act which provides, in pertinent part, that "The
Board is empowered ... to prevent any person from engag-
ing in any unfair labor practice. . . . This power shall not
be affected by any means of adjustment or prevention that
has been or may be established by agreement, law or other-
wise.... " Thus, it is well settled by virtue of this provision
that the Board may exercise its jurisdiction in any case
where unfair labor practices have arguably been committed,
notwithstanding the concurrent jurisdiction of other fo-
rums, including arbitration.31 Thus, the Supreme Court in
construing Section 301 of the Act, which provides in rele-
vant part that "Suits of violation of contracts between an
employer and a labor organization . . . may be brought in
any district court of the United-States having jurisdiction of
the parties . . . held that in enacting Section 301, Congress
had not precluded the Board from asserting jurisdiction
over contractual disputes which also involved unfair labor
practices.32 In Carey v. Westinghouse, 375 U.S. 261, 271
(1963), the Court stated: "There is no question that the
Board is not precluded from adjudicating unfair labor prac-
tice charges even though they may have been the subject of
an arbitration proceeding and award." Section 10(a) makes
this plain, and the courts have uniformly so held.33
A study of Board decisions reveals that in determining
whether to defer or not, the Board screens the cases in order
to insure that the parties' rights are safeguarded. For in-
stance, the Board will not defer to arbitration when the
nature of the contractual issues makes it unlikely that their
arbitral resolution will also determine those posed in the
unfair labor practice proceeding.34 Furthermore, since the
Collyer doctrine of deferral is based upon the likelihood that
arbitration will satisfactorily resolve the parties' underlying
dispute, the Board deems deferral inappropriate when the
alleged labor practices threaten the integrity of the collec-
tive-bargaining relationship itself, or the grievance-arbitra-
tion machinery underlying the policy of deferral.35 The
Board, in a recent case, which is dispositive of the deferral
matter here, held that when the dispute clearly cannot be
arbitrated under the provisions of the collective-bargaining
agreement, as is the situation in the instant case, the Board
will not withhold its processes.36 The validity of this conclu-
sion is confirmed by the Board's holding in Ryerson, supra,
that "In our series of decisions adumbrating the Board's
policy to defer to a contractual forum where a dispute might
properly be resolved either by us or under contract proce-
dures, we have required as a condition of such abstention
that the dispute presented in our proceeding be cognizable
in the contractual forum.... However, it has never been the
practice of this Board, and it is not now, to abstain from
action in cases which present issues which are irresolvable
in an alternative forum." (Emphasis supplied.)
Thus, none of the reasons which led the Board to with-
hold its processes in Collyer are present here. Moreover, the
contract violation here involves a statutory violation as well.
Therefore, in order to insure that the rights of all concerned
are fully and adequately protected, and inasmuch as the
Respondent Union's commission of independent violations
of Section 8(a)(3) of the Act are not cognizable under the
collective-bargaining agreements herein, it is concluded that
jurisdiction should be exercised in this proceeding.37
27 Resp. Exh. 2.
21 Hemz Co. v NLRB., 311 U.S. 511, 523.
29 Teamsters Local No. 70, supra.
30
C. & S. Industries, Inc., 158 NLRB 454, 457-460. See also C & C Plywood
Corp., 148 NLRB 414, enforcement denied 351 F.2d 224 (C.A. 9, 1965),
reversed 385 U.S. 421 (1967). See N L.R.B v. Huttig Sash & Door Co, 377
F.2d 964, 970 (C.A. 8, 1967), where it was stressed that the presence or
absence of an arbitration clause in the contract is not a pivotal factor in a
determination of the Board's jurisdiction to interpret a contract The court
stated "[T]here is no necessary or automatic mutual exclusiveness as be-
tween the contract remedy and the unfair labor practice remedy."
31
N.L.R.B. v. Huttig Sash & Door, supra at 969-970; Office and Professional
Employees Union, Local 425 v. N L.R.B., 419 F.2d 314, 317-320 (C A D.C.,
1969)
32 N.L R.B v Strong, 393 U.S. 357, 360-361 (1969). See N.L R.B. v C &
C Plywood Corp., supra.
33 See fn. 26.
34 Sheet Metal Workers, Local 17, 199 NLRB No. 26. The Board in declin-
ing to defer to the arbitration provisions stated: "When an entire dispute can
adequately be disposed of under the grievance and arbitration machinery, we
are favorably inclined toward permitting the parties an opportunity to do so.
One of our reasons for so doing is to avoid litigating the same issues in a
multiplicity of forums But here, since we must perforce determine a part of
the dispute, there is far less compelling reason for not permitting the entire
disute to be resolved in a single proceeding "
Jos T Ryerson & Sons, Inc., 199 NLRB No. 44.
36 Machinists, District 10, 200 NLRB No. 165, fn. 4
37 See above, where the arbitrator's limited authority is cited.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Remedy
Having found that Respondent has engaged in unfair
labor practices prohibited by Section 8(b)(3) of the Act, it
shall be recommended that it be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Air Land Freight Consolidators, Inc.38 and Tyler Bros.
Drayage Company are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Teamsters Union Local No. 85, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America is a labor organization within the meaning of
Section 2(5) of the Act.
3. All truck drivers and helpers employed by employer-
members of the Association, including Tyler and Air Land,
excluding all other employees, guards and supervisors as
defined in the Act constitute an appropriate bargaining unit
within the meaning of Section 9(b) of the Act.
4. At all times material thereafter , the Union was and
now is the exclusive representative of the above-designated
Employers' employees in the said appropriate units for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By failing and refusing to execute the oral agreement
of the parties, as agreed upon about September 15, 1972, the
Respondent has engaged and is engaging in unfair labor
practices within the meaning of Section 8(b)(3) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law and upon the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that there issue the
following:
Act:
(a) Upon request, bargain collectively in good faith with
Air Land Freight Consolidators, Inc., and Tyler Bros. Dray-
age Company as the exclusive representative of all the em-
ployees in the units described above and heretofore found
appropriate and embody any understanding which may be
reached in a signed agreement.
(b) If requested by Air Land Freight Consolidators, Inc.,
and Tyler Bros. Drayage Company, execute the contract on
which agreement was reached with the said employers on or
about September 15, 1972.
(c) Post at all its business offices and meeting halls, co-
pies of the attached notice marked "Appendix." Copies of
said notice, on forms provided by the Regional Director for
Region 20, after being duly signed by a duly authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in con-
spicuous places, including all such places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced or covered by any other material.
(d) Notify the Regional Director for Region 20 in writ-
ing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.
38 The General Counsel in par. 11(c) of his complaint refers to "Air-Land
Freight Consolidators, Inc.," C.P. Exh. I is captioned "Air Land Air Freight,
Inc.," and at various other places in the record reference is made to "Air
Land Freight Forwarders."
39 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Section
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.
40 In the event that the Board's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
ORDER39
Respondent, Teamsters Union Local No. 85 , Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, its officers, agents, representatives,
successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with Air
Land Freight Consolidators, Inc., and Tyler Bros . Drayage
Company as to wages, hours, and other terms and condi-
tions of employment covering employees in the units herein
found to be appropriate, by refusing to sign the collective-
bargaining agreement upon which the parties have agreed,
or from engaging in any like or related conduct in deroga-
tion of the statutory duty to bargain.
(b) Cancel, withdraw, and rescind the ban on its union
members from accepting jobs, offered them by Tyler Bros.
Drayage Company, and immediately notify the former
truck drivers of Air Land Freight Consolidators, Inc., in
writing that such action has been taken.
2. Take the following affirmative action, which appears
necessary and appropriate to effectuate the policies of the
APPENDIX A
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
TO ALL EMPLOYEES OF: AIR LAND FREIGHT
CONSOLIDATORS, INC., and TYLER BROS. DRAY-
AGE CO.
TO ALL MEMBERS OF: TEAMSTERS UNION LOCAL
NO. 85, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
& HELPERS OF AMERICA
After a trial before an Administrative Law Judge, at which
all sides had the chance to give evidence, it has been decided
that we, Teamsters Union Local No. 85, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, have violated the National Labor Rela-
TEAMSTERS LOCAL 85
tions Act, and we have been ordered to post this Notice.
We hereby notify you that:
WE WILL NOT refuse to bargain collectively in good
faith with Air Land Freight Consolidators, Inc., and
Tyler Bros. Drayage Co., as the exclusive representa-
tive of the said Employers' employees in the appropri-
ate unit described below by refusing to sign the written
collective-bargaining agreement to which we agreed,
on or about September 15, 1972, and we will not engage
in any like or related conduct in derogation of our
statutory duty to bargain, provided we remain the rep-
resentative of the employees in the appropriate unit, as
prescribed in Section 9 of the Act.
WE WILL, if requested by Air Land Freight Consolida-
tors, Inc., and Tyler Bros. Drayage Co., execute the
oral contract on which we reached agreement with the
said Employers on or about September 15, 1972. The
appropriate unit is:
All truck drivers and helpers employed by employ-
er-members of the Association, including Tyler and
Air Land, excluding all other employees, guards and
supervisors as defined in the Act, constitute an ap-
propriate bargaining unit within the meaning of Sec-
tion 9(b) of the Act.
The Union has no objection to those drivers who were
terminated by Air Land on November 9, 1972, accepting
jobs offered them by Tyler Bros. Drayage Co.
TEAMSTERS UNION LOCAL No
85, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELP.
ERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 13018 Federal Building, Box 360
511
47, 450 Golden Gate Avenue, San Francisco, California
94102, Telephone 415-556-0335.
APPENDIX B
AIR LAND AIR FREIGHT, INC.
299 Lawrence Avenue
South San Francisco, California 94080
November 7, 1972
Andrew Leonard, Secretary-Treasurer
International Brotherhood, of Teamsters
Local 85
459 Fulton
San Francisco, California 94102
Dear Mr. Leonard:
Our letter dated August 31, 1972, advised you that Air
Land Air Freight, Inc., intended to go out of the cartage
business effective September 25, 1972. This action was not
taken on the announced date and will now become effective
November 8, 1972.
It is our understanding that Tyler Bros. Drayage will be
performing the drayage work now done by our drivers.
Pursuant to an oral agreement reached with your union, any
additional manpower needed by Tyler Bros. will be hired
from the Air Land seniority list during a three-year period
running from September 25, 1972, to September 24, 1975.
The Company stands ready to meet with you again re-
garding the details of our going out of business, and is ready
to cooperate with you so that this transition can be accom-
plished with minimum hardship to all concerned. It is our
position, however, that a final oral agreement was reached
during a negotiating session with the union which was held
the second week of September. We will comply with that
agreement.
We deeply regret that it is economically impossible to
provide employment for all of our drivers.
MK: evs
cc:
Kenneth Silbert, Esq.
John V. Tyler
Russell G . Carlson
Yours very truly,
Mack Kykendall