Teamsters Local 272 (Metropolitan Garage)

National Labor Relations Board - Board Decisions

Sep 30, 1992

308 N.L.R.B. 1132 (N.L.R.B. 1992)

1132
308 NLRB No. 164
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In adopting the judge’s decision, we find no merit in the Re-
spondent’s exception that the judge ‘‘preclud[ed] Local 272 from
presenting its defense,’’ nor in the General Counsel’s argument that
the judge’s decision to end a line of questioning was in any way
based on a conclusion that the Respondent’s witness could not be
credited. The record clearly discloses that the Respondent entered
evidence concerning the factual bases surrounding the allegations of
the complaint as well as a legal rationale for its defense. At the point
where the Respondent’s testimonial evidence invoked potential anti-
trust and price fixing liability in defense of its alleged unlawful re-
fusal to provide information relevant to its contractual ‘‘Most Fa-
vored Nations’’ clause, however, the judge correctly stated that those
contentions were not properly cognizable before the Board and they
would not be further entertained. Thus, his ruling disallowing the
Respondent from pursuing questions related to the merits of an anti-
trust defense to a refusal to provide information allegation is entirely
appropriate and is not suggestive of prejudgment of the merits of the
case apart from that defense.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 Unless indicated otherwise, all dates referred to herein relate to
the year 1992.
Garage Employees Union Local 272, International
Brotherhood of Teamsters, AFL–CIO and Met-
ropolitan Garage Owners Association, Inc.
Case 2–CB–14031
September 30, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 7, 1992, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. Thereafter, the
Respondent filed exceptions and a supporting brief,
and both the General Counsel and the Charging Party
filed reply briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Garage Employees Union
Local 272, International Brotherhood of Teamsters,
AFL–CIO, New York, New York, its officers, agents,
and representatives, shall take the action set forth in
the Order.
Nancy Schneider, Esq. and Larry Singer, Esq., for the Gen-
eral Counsel.
Bruce S. Cooper, Esq. (Dublirer, Haydon, Straci & Victor),
for the Respondent.
Fred S. Sommer, Esq. (Arent, Fox, Kintner, Plotkin & Kahn),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on May 20, 1992,1 in New York, New
York. The complaint, which issued on February 25, and was
based on an unfair labor practice charge filed on January 9
by Metropolitan Garage Owners Association, Inc. (the Asso-
ciation), alleges that Garage Employees Union Local 272,
International Brotherhood of Teamsters (Respondent) vio-
lated Section 8(b)(3) of the Act by failing and refusing to
furnish the Association with information it requested on
about December 16, 1991, and January 2.
On the entire record, including the briefs received, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Association, with its office and place of business lo-
cated in New York City, is an organization composed of var-
ious employer-members that own and operate parking facili-
ties in New York, New York. Its purpose is to represent
these employer-members in negotiating and administering
contracts with Respondent. Annually, in the course and con-
duct of its business operations, the employer-members of the
Association collectively derive gross revenue in excess of
$500,000 and collectively purchase and receive at their re-
spective facilities goods and materials valued in excess of
$50,000 directly from points outside of the State of New
York. Respondent admits, and I find, that the employer-
members of the Association are now, and have been at all
times material, employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that it is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. FACTS AND ANALYSIS
The Association and Respondent have been parties to a se-
ries of collective-bargaining agreements, the most recent of
which is for the period February 6, 1989, through February
5, covering, basically, all the employees at garages owned by
employer-members of the Association. Article II, section 6 of
this agreement contains what the complaint refers to as a
‘‘More Favorable Conditions’’ clause, but is more often re-
ferred to as a ‘‘Most Favored Nations’’ clause. This provi-
sion, basically, provides that if Respondent enters into a con-
tract with a garage in New York City, or in the four bor-
oughs and within six blocks of an employer-member of the
1133TEAMSTERS LOCAL 272 (METROPOLITAN GARAGE)
2 The sole support for this defense is Haydon’s testimony about the
Association’s oral request for the information. This testimony is con-
tradictory and confusing. He testified that the Association representa-
tive said that they wanted to be sure that there is no competition and
that prices were fixed. He also testified that they wanted the infor-
mation in order to be competitive and ‘‘that the prices that are ob-
tained in this industry do not hurt our people.’’ Further, he testified
that when he said that the Association wanted the information in
order to fix prices, they responded: ‘‘No, that’s not so.’’ Based on
this, I would discredit Haydon’s testimony that they said that they
wanted the information in order to fix prices.
Association, and that contract contains a more favorable (for
the employer) rate of pay, benefits, or working conditions
than the Association’s contract, or contains fewer job classi-
fications than the Association’s contract, the Association
must be notified of these terms and they will become effec-
tive for the Association’s contract 48 hours later.
By letter dated December 16, 1991, Allen Siegel, labor
counsel for the Association, wrote to Eugene Bennett, sec-
retary-treasurer of Respondent, inter alia:
Finally, in order that MGOA [the Association] may de-
termine compliance with the current collective bargain-
ing agreement and prepare for further negotiations to-
wards a new agreement, we reiterate our request that
Local 272 provide to us immediately copies of all col-
lective bargaining agreements or other agreements or
arrangements and describe any oral agreements or ar-
rangements, entered into or in effect since February
1989, between Local 272 and any employer which op-
erates or operated a parking establishment or location
within the City of New York.
Having received no answer to this letter, Siegel again wrote
to Bennett by letter dated January 2:
By letter dated December 16, 1991, we requested
that you provide to us copies of all collective bargain-
ing agreements and describe any oral agreements or ar-
rangements, entered into or in effect since February
1989, between Local 272 and any employer which op-
erates or operated a parking establishment or location
within the City of New York. To date, however, we
have received no response to this request.
Because we are currently in negotiations for a con-
tract that expires slightly over a month from now, it is
imperative that we receive the requested information
immediately as we previously indicated. Should we not
receive a response by the close of business on Monday,
January 6, 1992, we will have no choice but to take
whatever steps are necessary to enforce the Associa-
tion’s right to obtain this information.
Siegel testified that at the negotiation session held on Jan-
uary 16 he asked Charles Haydon, counsel for Respondent,
if Respondent intended to supply the Association with the re-
quested information. Haydon answered that they would not.
Siegel said that the Association wanted the information in
order to learn whether Respondent was giving the Associa-
tion’s competitors a better deal. Haydon responded that Re-
spondent wouldn’t supply the information because it would
result in price fixing and would violate antitrust laws. Subse-
quently the Respondent asked that the request be narrowed
and the Association agreed to narrow the request to a certain
geographic area. Admittedly, Respondent never provided the
Association with the requested information.
Haydon testified that Siegel first requested this information
at a bargaining session in November 1991; he said that he
wanted to be certain that the rates don’t hurt the Associa-
tion’s members. Haydon responded that because the Associa-
tion was asking them to fix prices the Respondent would not
give them the information to further this activity. At the
meeting on January 16 Siegel asked him if the Respondent
was going to give them the information they asked for.
Haydon responded that the Association was asking them to
participate in a violation of antitrust laws and, for that rea-
son, they would not supply the information.
The issue is clear: did Respondent violate Section 8(b)(3)
of the Act by refusing to supply the Association with the in-
formation requested by it on December 16, 1991, January 2
and, apparently, in November 1991. The information re-
quested by the Association is clearly relevant and necessary
to the Association as the bargaining representative of its em-
ployer-members. Oakland Press Co., 233 NLRB 994 (1977).
In fact, it is difficult to imagine information that is more rel-
evant. Pursuant to the agreement between the Association
and Respondent, 48 hours after learning of a covered em-
ployer to whom Respondent has granted more favorable con-
ditions, these more favorable conditions attach to the em-
ployees of the employer-members of the Association. The
nature of the information requested makes it most likely that
it be obtained from the Respondent, voluntarily or through
a demand from the Association. Because Respondent did not
provide the information voluntarily, it was left to the Asso-
ciation to demand it, as it did here on December 16, 1991,
and January 2.
Respondent defends that by supplying this information it
would be participating in an anti-trust, price fixing violation
of some sort. In its brief, counsel for Respondent states that
‘‘to comply with the Association’s request would involve the
Respondent in an anti-trust conspiracy with the Association
to drive out of business and otherwise competitive disadvan-
tage the employers who are not members of the Associa-
tion.’’ I find no merit in this defense, and for that reason I
cut off Respondent’s attempt to continue further with this de-
fense at the hearing herein.2 First, the Board has previously
rejected this defense in Hotel & Restaurant Employees Local
355 (Doral Beach Hotel), 245 NLRB 774 (1979), where it
stated at fn.1:
Absent a determination by a tribune of competent juris-
diction that the relevant MFN [Most Favored Nations]
clause is unlawful under the antitrust laws, we will not
find that Respondent was privileged under the antitrust
laws to ignore its contractual obligation to provide in-
formation necessary to administer the MFN clause.
Further, the evidence establishes that in New York City,
where the employer-members of the Association operate their
parking garages, there is a law requiring all garages to post
their parking rates conspicuously at the entrance to the ga-
rage. If these employers wanted to fix prices, all they would
have to do is walk over to their competitor’s facility to see
what his rates were. What the Association was requesting
was wage rates and other terms and conditions of employ-
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ment. I fail to see how providing this information could re-
sult in price fixing or antitrust violations. As was stated by
counsel for the Charging Party in its brief: ‘‘MGOA lawfully
sought information that would enable it not to fix prices but
to eliminate any competitive cost disadvantage that would re-
sult to its members from more favorable agreements entered
into by the Union with non-MGOA members.’’
I therefore find that by failing and refusing to provide the
Association with the information it requested on December
16, 1991, and January 2, Respondent violated Section 8(b)(3)
of the Act. Electrical Workers IBEW Local 1186 (Pacific
Electrical), 264 NLRB 712 (1982); Laborers (Heavy Con-
tractors), 285 NLRB 688 (1987).
CONCLUSIONS OF LAW
1. The employer-members of the Association are now, and
have been at all material times, employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(b)(3) of the Act by fail-
ing and refusing to supply the Association with the informa-
tion it requested on December 16, 1991, and January 2,
1992.
REMEDY
It having been found that Respondent violated the Act by
failing and refusing to provide the Association with the infor-
mation it requested on December 16, 1991, and January 2,
1992, it is recommended that Respondent be ordered to cease
and desist therefrom and to promptly supply said information
to the Association.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Garage Employees Union Local 272,
International Brotherhood of Teamsters, AFL–CIO, New
York, New York, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Failing and refusing to provide the Association with in-
formation it requested by letters dated December 16, 1991,
and January 2, 1992, the information being relevant and nec-
essary to the Association as the bargaining representative of
its employer-members.
(b) Engaging in like or related conduct in derogation of its
statutory duty to bargain.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Supply the Association with copies of all collective-
bargaining agreements or other agreements or arrangements
and describe any oral agreements or arrangements entered
into or in effect since February 1989, between Respondent
and any employer which operates or operated a parking es-
tablishment or location within the City of New York.
(b) Post at its business office and meeting places copies
of the attached notice marked ‘‘Appendix.’’4 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees and members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial.
(c) Forward to the Association, for posting at its premises
and the premises of its employer-members, if they wish, cop-
ies of such notices duly signed by Respondent’s representa-
tive.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with Metro-
politan Garage Owners Association, Inc. (Association) by re-
fusing to supply information relevant and necessary for the
bargaining process.
WE WILL NOT engage in any like or related conduct in
derogation of our statutory duty to bargain.
WE WILL furnish the Association with the following infor-
mation: copies of all collective bargaining agreements or
other agreements or arrangements and describe any oral
agreements or arrangements, entered into or in effect since
February 1989 between Local 272, and any employer which
operates or operated a parking establishment or location
within the City of New York.
GARAGE EMPLOYEES UNION LOCAL 272,
INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, AFL–CIO