Teamsters Local 85Download PDFNational Labor Relations Board - Board DecisionsOct 19, 1973206 N.L.R.B. 500 (N.L.R.B. 1973) Copy Citation 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, ยงยง 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 Copy with citationCopy as parenthetical citation