Teamsters Local 70 (Emery Worldwide)

National Labor Relations Board - Board Decisions

Jul 31, 1989

295 N.L.R.B. 1123 (N.L.R.B. 1989)

TEAMSTERS LOCAL 70 (EMERY WORLDWIDE) 1123
Brotherhood of Teamsters & Auto Truck Drivers,
Local No. 70, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO and Emery
Worldwide. Case 32-CB-2917
July 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
HIGGINS AND DEVANEY
On December 21, 1988, Administrative Law
Judge Timothy D. Nelson issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief, and the General Counsel and Charg-
ing Party filed cross-exceptions and supporting
briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions , to modify his remedy , and to adopt
the recommended Order as modified.
THE REMEDY
The judge recommended, inter alia , that the Re-
spondent be ordered to make whole Oakland unit
employees , with interest , for any losses they suf-
fered by virtue of the Respondent's failure timely
to execute its responsibilities under the May 11,
1987 modified WTWT agreement. We agree.' The
General Counsel and the Charging Party also re-
quested that the Respondent make Emery whole
for any expenses it incurred in providing its Oak-
land employees health and welfare coverage under
the Local 85 plan instead of the contracted-for
WTWT coverage. The judge denied Emery this
make-whole relief, finding neither case support for
this remedy nor evidence that reimbursing Emery
was necessary to vindicate employee rights. The
judge further found that Emery could have avoid-
ed its loss by unilaterally tendering payments to the
WTWT fund, and speculated that reimbursing
Emery might run afoul of Section 301 contract ac-
tions. Contrary to the judge, we agree with the
General Counsel and the Charging Party that the
Respondent should be required to reimburse Emery
for any losses it incurred in continuing Local 85
' Interest will be computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
health and welfare coverage for its Oakland driv-
ers.2
In Plumbers Local 420 (Paragon Mechanical), 254
NLRB 445 (1981 ), the Board faced a similar factual
situation. There the union agreed that an employer
could apply the national collective-bargaining
agreement on a particular jobsite . Subsequently, the
union demanded that the employer instead comply
with a local agreement and coerced the employer
into signing that agreement . The Board found that
the union violated Section 8(b)(3) both by failing to
provide the employer with the required 8(d) notice
and by striking to coerce the employer to abandon
the agreed-to national agreement . In remedying
these 8(b)(3) violations , the Board ordered the
union "to make [the employer] whole for any ex-
penditures it incurred pursuant to the local agree-
ment which it would not have incurred under the
[national agreement]."s Quoting the Ninth Circuit
in NLRB v. Longshoremen ILWU Local 17, the
Board stated that "If a party who unlawfully re-
fuses to bargain is permitted to retain the fruits of
unlawful action , the Act is rendered meaningless,
and defiance of the Board 's orders is encouraged."4
The Board's rationale in Plumbers Local 420 is
equally applicable here. As found by the judge,
Emery and the Respondent reached a final and
binding agreement on May 11, 1987, covering Oak-
land drivers. This agreement expressly provided
for employee health and welfare coverage under
the WTWT plan.5 In late September , shortly
before Emery 's scheduled opening of its Oakland
facility, the Respondent notified Emery that it
would not be allowed to participate in the WTWT
plan. The Respondent also threatened to harass
Emery and shut down its Oakland operation if
Emery sought WTWT coverage. Also, Local 85
informed Emery that its members would be in-
structed not to report to Oakland unless there was
agreement on health and welfare coverage. Be-
cause of these pressures , and the imminence of its
scheduled Oakland opening , Emery executed a
"Letter of Understanding" on September 30 agree-
ing to continue Local 85 coverage for Oakland em-
ployees until the health and welfare dispute was re-
solved . Thereafter, Emery made contributions into
the Local 85 plan for its Oakland drivers, at a cost
2 Excluded from this make -whole remedy are those transferring drivers
nearing retirement for whom Emery agreed to continue Local 85 cover-
age.
9 Under the local agreement , the employer incurred additional costs,
including higher overtime and premium pay
4 254 NLRB 445, quoting NLRB v. Longshoremen IL WU Local 17, 451
F.2d 1240, 1243 (9th Cir. 1971).
5 As also found by the judge, the parties further agreed that Oakland
drivers within 24 months of retirement would continue to be covered
under Local 85's health and welfare plan.
295 NLRB No. 137
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in excess of WTWT coverage .6 This increased cost
to Emery was the direct result of the Respondent's
repudiation of its May 11 WTWT agreement. Ac-
cordingly, to prevent the Respondent from reaping
"the fruits of [its] unlawful action," we shall order
it to make Emery whole for any expenditures it in-
curred in contributing into the Local 85 health and
welfare plan for its Oakland drivers that it would
not have incurred under the WTWT plan.7
Finally, we do not agree with the judge that
Emery should be denied make-whole relief on the
ground that this remedy is not necessary to vindi-
cate employee rights or that it would conflict with
Section 301 . It is well settled that the Board is em-
powered to remedy unfair labor practices by re-
quiring compliance with contractual requirements.
See, e.g., Indiana & Michigan Electric Co., 284
NLRB 53 fn. 8 (1987). Moreover, Section 301 does
not supplant the Board's authority to remedy con-
tract breaches. NLRB v. Strong Roofing Co., 393
U.S. 357 (1969).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Brotherhood of Teamsters & Auto Truck
Drivers, Local No. 70, a/w International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , AFL-CIO, Oakland , Califor-
nia, its officers, agents, and representatives, shall
take the action set forth in the Order as modified.
1. Insert the following as paragraph 3 under the
affirmative action section of the recommended
Order and renumber the subsequent paragraphs.
"3. Make Emery whole for any expenditures
made pursuant to the September 30, 1987 Letter of
Understanding which it would not have been obli-
gated to make under the WTWT provisions of the
May 11 , 1987 collective-bargaining agreement."
s Contrary to the judge, we would not deny Emery make -whole relief
merely because it made health and welfare contributions for Oakland
drivers to the Local 85 fund instead of tendering payments to WTWT.
When Emery attempted to obtain information from the Respondent on
the proper language and amount of WTWT contributions so that it could
incorporate this language into the collective-bargaining agreement, the
Respondent refused , and threatened to harass and shut down Emery's
Oakland operations . And, within days of Emery 's scheduled Oakland
opening , Local 85 said it would instruct its employees not to report to
Oakland unless the health and welfare dispute was resolved . Under these
circumstances , where the Respondent coerced Emery to capitulate to its
contract breach , we will not penalize the Employer because the Re-
spondent 's tactics were successful.
7 Further support for this remedy can be found in Longshoremen ILWU
Local 17 (Los Angeles By-Products), 182 NLRB 781 (1970), enfd 451 F.2d
1240 (9th Cir 1971); Electrical Workers IBEW Local 1186 (Pacific Electri-
cal), 264 NLRB 712 (1982), enfd . 113 LRRM 3816 (9th Cit. 1983); and
Graphic Arts Union Local 280 (Barry Co .), 235 NLRB 1084 (1978), enfd.
596 F . 2d 904 (9th Cir. 1979)
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX 2
NOTICE To EMPLOYEES AND MEMBERS
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT repudiate the May 11, 1987
WTWT agreement, or refuse to cooperate with
Emery in preparing and signing the documents
necessary to ensure that employees are properly
covered by the WTWT.
WE WILL NOT in any like or related manner seek
to prevent Emery from participating in the
WTWT.
WE WILL immediately, on Emery's request, co-
operate in the preparation and signing of the docu-
ments necessary to execute our agreement for
WTWT coverage.
WE WILL, if necessary, make any Oakland unit
employees whole, with interest, for any losses they
may have suffered as a result of their failure to be
enrolled in WTWT from the date they first became
employed in the Oakland unit.
WE WILL make Emery Worldwide whole for
any expenditures made pursuant to the September
30, 1987 Letter of Understanding which Emery
would not have been obligated to make under the
modified WTWT provision of the May 11, 1987
contract.
BROTHERHOOD OF TEAMSTERS &
AUTO TRUCK DRIVERS , LOCAL No.
70, A/W INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL-CIO
Jeffrey L Henze and George Velastegui, Esqs., for the
General Counsel.
Kenneth N . Silbert, Esq. (with limited appearance
through Marie Rongone, Esq.) (Beeson , Taylor, Silbert &
Bodine), of San Francisco , California, for Respondent
Local 70.
Thomas N. Seger, Esq. (Elliot S. Azoff and Edwina A.
Wilson, Esqs., on brief) (Baker & Hostetler), of Cleve-
land, Ohio, for Charging Party Emery Worldwide.
TEAMSTERS LOCAL 70 (EMERY WORLDWIDE) 1125
DECISION
I. STATEMENT OF THE CASE
A. General
TIMOTHY D. NELSON, Administrative Law Judge.
This 8(b)(3) case involves at bottom whether a labor
agreement for a new unit of employees reached on May
11, 1987, between Teamsters Local Union No. 70 (Re-
spondent) and Emery Worldwide (Emery) included a
certain "WTWT" health and welfare plan. Although the
contracting parties have otherwise implemented the
overall agreement concluded on May 11, the prosecuting
parties claim-and Respondent denies-that WTWT
coverage was a necessary feature of the negotiated bar-
gain.
The case emerged from an unfair labor practice charge
filed by Emery against Respondent on March 4, 1988
(dates in this section are in 1988). After investigating, the
Regional Director for Region 32 issued a complaint and
notice of hearing against Respondent on April 21, adopt-
ing the view that WTWT had been part of the May 11
agreement and that Respondent had unlawfully refused
to bargain by refusing to sign necessary documents and
by otherwise blocking WTWT's implementation. Re-
spondent 's answer denied wrongdoing.
I heard the case in trial on the merits in Oakland, Cali-
fornia, on June 9; I conducted a limited supplemental
hearing on November 17, triggered by Respondent's
motion, dated October 10, to reopen the record to re-
ceive a grievance decision , a motion which contemplated
also that these proceedings be terminated in deference to
the grievance decision.
B. Respondent's June 9 Motions to Defer or
Alternatively to Postpone Trial
Respondent , through counsel , made only a special ap-
pearance at the beginning of the trial on June 9, for the
limited purpose of filing two motions: One was for defer-
ral of the case while a related grievance was pending
before the National Grievance Committee (NGC), asser-
tedly a body contractually empowered by the parties to
resolve their underlying dispute. Alternatively, Respond-
ent sought a 2-month trial postponement , based on cer-
tain professional and vacation conflicts which assertedly
made it impossible for its regular attorney , Silbert, or
anyone else in his firm, to participate in the scheduled
trial.
As is reflected in the exhibits , the Regional Director
had only recently denied similar motions by Respondent;
counsel for the General Counsel and Emery 's counsel
vigorously opposed the renewed motions . I denied the
postponement request . As to the deferral request, I ex-
pressed my belief that deferral would not be appropriate
in a "contract-existence" case, as this one appeared to
be.' I formally withheld ruling on the deferral request,
"Me question whether a labor agreement was reached on May 11,
1987 (more precisely , what was that agreement) was implicated insofar as
the pleadings alone revealed that the parties are plainly at odds over a
major term and condition of employment (health and welfare coverage).
Normally (and no record was before me indicating that this case was ex-
however, pending litigation and written briefs .2 When I
directed that litigation proceed, Respondent's motion
counsel left the proceedings. Respondent did not other-
wise appear through any agent or witness, nor present a
defense after the prosecuting parties rested their cases-in-
chief.
All parties filed posttrial briefs, but Respondent's brief
limited itself to rearguing the deferral motion , 3 reassert-
ing that a continuance should have been granted,4 and
objecting to the remedies proposed by the General
Counsel. As to the unfair labor practice merits, briefing
counsel avers that "Respondent is unable to brief the
merits of this case because it has been deprived of an op-
portunity to examine and cross-examine witnesses and to
present evidence on its own behalf."
C. Respondent's October 10 Motion to Reopen
By motion dated October 10, Respondent sought a re-
opening of the record for the limited purpose of admit-
ting into evidence a copy (which was not yet available
to moving counsel) of a September 22 decision of the
ceptional), disputes about whether the parties reached agreement-as op-
posed to disputes over the interpretation of an acknowledged agree-
ment-are not deferrable, since the former questions are central matters
of statutory concern, not within the unique competence of an arbitrator
or arbitration panel . Moreover , absent an independent agreement by the
parties to submit to "interest arbitration ," contract-existence questions are
not normally within the contractual charter of arbitrators or arbitration
panels. Naccarato Construction Co., 233 NLRB 1394, 1400 ( 1977), see also
Consolidation Coal Co., 253 NLRB 789 fn . 2 (1980).
2 Respondent 's motion counsel was unfamilar with the case and espe-
cially unprepared to argue the deferral motion. The record (including
Respondent 's motions) did not then include (nor did it when I closed it
on June 9) any copies of any other enabling documents which might con-
tain such descriptions. Necessarily , the record did not afford a basis for
determining whether the grievance in question was within the scope of
the contract grievance system , much less how the NGC was composed,
how it worked , and whether , or when, the NGC might hear or decide
the grievance . I was in doubt, moreover , about the applicability of the
specific authorities cited by the General Counsel and Emery in their
orally expressed oppositions to deferral
s Although it is seemingly a moot point , I record here my judgment
that the case should not have been deferred on June 9 based solely on
Respondent 's unsupported motion representing that a vaguely character-
ized grievance remained in an uncertain state of pendency before a dis-
putes-resolution panel of uncertain contractual authority or disposition to
hear it . It was Respondent 's threshold burden to establish these minimal
particulars and it was therefore fatal to its request that it failed to do so.
MacDonald Engineering Co., 202 NLRB 748 (1973). (As herein, party
urging deferral failed to introduce applicable labor agreement ; record
was "unclear" regarding arbitrator 's powers under contract ; therefore
record insufficient for a finding that deferral was warranted .) See also
Consolidation Coal Co., supra, at fn. 2. Cf Olin Corp., 268 NLRB 573,
574-575 fns . 8 and 10 ( 1984) (reversing Suburban Motor Freight, 247
NLRB 146 (1980); holding that where a party urges deferral to an al-
ready-issued arbitral decision, the Board will now require the party op-
posing deferral to bear the burden of establishing that the arbitral deci-
sion was "deficient" in some material respect) Absent an express overrul-
ing of MacDonald by the Board , I treat it as the more specifically gov-
erning precedent for purposes of disposing of the deferral motion made
on June 9, as reargued in Respondent 's posttnal brief Olin's teachings are
more directly relevant to consideration of the deferral issues presented by
the NGC decision , discussed below
4 Although the events associated with Respondent 's motion to reopen
the record may have mooted some aspects of its earlier deferral conten-
tions , they have not mooted Respondent's alternative claim, reasserted in
its posttnal brief, that the trial should have been postponed because of
Respondent 's law firm 's conflicts . I reaffirm my trial ruling on the post-
ponement motion. I attach as App. I my findings and surrounding obser-
vations on that subject. .
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NGC. The motion contemplates that the NGC decision
be deferred to, and that the current complaint proceed-
ings be terminated . After conducting two all -party tele-
phone conferences, and after Emery had filed a written
opposition and other responses to the motion to reopen, I
ordered the record reopened for the limited purposes of
receiving a (now-available) copy of the NGC decision,
together with any other evidence which might properly
bear on Emery's claim that the NGC decision was not an
appropriate basis for deferral . I conducted such a limited
supplemental hearing in Oakland on November 17 and
allowed for supplemental briefs to be filed by no later
than November 29.5
D. The General Counsel's Motion on Supplemental
Brief to Withdraw the Complaint and to Have the
Case Remanded to the Regional Director
The General Counsel now joins in Respondent 's claim
that deferral is appropriate , and devotes a major portion
of its supplemental brief to the point . But the General
Counsel separately moves on brief to "have the com-
plaint withdrawn and have the case remanded to the
Region for further consideration of the deferral issues."
The case, including the deferral issues, has been litigat-
ed and submitted to me . I regard the General Counsel's
motion as untimely in the circumstances , not least be-
cause counsel for the General Counsel was twice ad-
vised , in all-party conferences prior to the November 17
hearing, to make a formal motion for remand, if, indeed,
that was the General Counsel 's desire, and no such
motion was filed at any point when it might have made
sense to consider it.6
5 The General Counsel and Charging Party , though expressing a wish
to argue orally in lieu of briefs , filed timely supplemental briefs , Respond-
ent, whose counsel requested the right to file a written brief , did not.
9 Counsel for the General Counsel states that in the October 13 and 31
conference calls, "General Counsel orally moved to have the complaint
withdrawn and have the case remanded to the Region for further consid-
eration," a "motion" which he notes the administrative law judge was
not "inclined" to grant. Conference calls are not of record, accordingly
statements made therein by counsel-especially those which are not iden-
tified as "motions"-cannot be construed as motions, nor can "inclina-
tions" expressed by the administrative law judge be construed as rulings
thereon . Moreover, my distinct recollection , aided by detailed conference
notes, is at variance with the General Counsel 's representations regarding
the following pertinent particulars of the two lengthy conferences: In the
October 13 conference , the General Counsel made several discursive
statements about the Region 's overall position at this juncture, one of
which was that the Region "may file a motion" to have me "remand" the
case for the Region 's "administrative" review and "determination" of the
deferral question , while still having me "retain a limited jurisdiction"
should the Region wish to "resubmit" the case to me Emery 's counsel
opposed this as time-consuming and pointless (since Emery opposed de-
ferral and had an unchallenged right to be heard by the administrative
law judge should the Region "determine" that deferral was now appro-
priate). I, too, questioned how such a "remand" would promote a more
prompt and orderly disposition of the case, noted that the case had been
litigated on the merits and submitted to me , and that I was presently dis-
inclined to grant such a motion . But I specifically advised the General
Counsel that he was free to file such a motion , which would be given full
consideration if placed before me in coherent written form. He stated
that he would "confer further with Regional officials " on the point. In
the followup conference on October 31, I inquired regarding the General
Counsel 's desires respecting possible "remand." Counsel for the General
Counsel stated that the Region 's position was that the matter should be
remanded . I advised him that he should file a formal motion if that were
the case, and that any such motion should be made before , or at , the No-
vember 17 hearing , if it were to have any value.
The General Counsel does not question that, where, as
here , an unfair labor practice complaint has been fully
litigated, it is within the discretion of the administrative
law judge to grant or deny a request by the General
Counsel to terminate prosecution of all or part of the
complaint.' I have carefully studied the General Coun-
sel's arguments as to why, as an exercise of my discre-
tion , I should allow the complaint to be withdrawn and
to "remand " the case to the Region "for further consid-
eration of the deferral issue ." Based on my decision on
the merits elsewhere below , I find the complaint well-
supported by the evidence , a judgment which surely
augurs against permitting withdrawal of the complaint.
And I find nothing in the General Counsel's arguments
which identifies a useful purpose which might now be
served by a remand . Nor is it evident from the moving
papers exactly what type of "further consideration of the
deferral issues" might be required were I to remand.
The Regional Office has had full opportunity since Re-
spondent 's October 10 motion to investigate any factual
matters which might bear on the appropriateness of de-
ferral . The General Counsel had full opportunity to liti-
gate all such questions at the November 17 hearing, and
to take a position on the deferral question , which it has
done . Emery opposes deferral and has an undisputed
right, grounded in the foregoing cases, to be heard by an
administrative law judge on the subject . To "remand" at
this stage , without myself deciding the deferral issue,
would arguably leave Emery in a position where, after
full prosecution on the merits, it could not gain review
of the General Counsel 's currently declared unwilling-
ness to prosecute the complaint, based on its current
view that the NGC decision is worthy of deference. This
would be unfair in my view and violative of Emery's
due-process rights . By contrast, my retaining of jurisdic-
tion and deciding the deferral issue will impair no rights
of any party to obtain full review of this question at the
Board level or beyond . Moreover, any remand at this
stage would , at the least, impair the orderly disposition
of this case by creating delay and procedural confusion.
Since the evidence supports the complaint and the Gen-
eral Counsel has not demonstrated any compelling
reason to derail these proceedings at this stage, I deny
the General Counsel's motion to withdraw the complaint
and to remand to the Region.
E. Emery's Position; My Ruling on Current Deferral
Motion in Summary
Emery vigorously opposes deferral, claiming the NGC
decision is fundamentally flawed by a central , but quite
mistaken, assumption of fact on the deciding grievance
panel's part (that Emery was party to a certain "Local
Supplement" which called for a health and welfare plan
r "Where ... the General Counsel has not yet presented evidence on
the merits, authority to withdraw the complaint falls within the General
Counsel 's prosecutorial discretion ." Tampa Sheet Metal Co, 288 NLRB
322 (1987). But "where the General Counsel moves to withdraw a com-
plaint or a portion thereof after evidence has been introduced , withdraw-
al is subject to the administrative law judge's discretionary authority."
Id., fn 2 , citing Graphic Arts International Union (Kahle Printing Ca), 230
NLRB 1219 (1980); see also General Maintenance Engineers, 142 NLRB
295 (1963).
TEAMSTERS LOCAL 70 (EMERY WORLDWIDE) 1127
other than WTWT). For reasons more fully discussed
within, I agree with Emery that the NGC decision turns
on such an erroneous assumption , that there is no "factu-
al parallelism" between the dispositive facts in this case
and those assumed facts on which the NGC disposed of
the grievance in that case , and that the NGC decision
does not address in any way the statutory issue presented
here . I judge ultimately that to defer to the NGC deci-
sion would involve the Board in the perpetuation of an
irregularly arrived -at result which, insofar as it imposes
an unbargained -for term on Emery's relationship with
Respondent , is repugnant to the purposes and policies of
the Act.
There seems no better way to set the stage for a dis-
cussion of these ultimate conclusions on the deferral issue
than to focus first on the issues raised by the complaint
and answer , then on the surrounding facts, and only then
on the facts and legal issues surrounding the NGC deci-
sion:
all negotiations with Emery for a contract about which
there is no other dispute, that the "WTWT" health and
welfare plan (and not one of the other plans in which
Respondent participates) would govern when Emery re-
located a large part of its South San Francisco operation
to Oakland? If they did so agree (as I shall find) the only
other significant question in dispute is whether, as the
prosecuting parties contend ,' ° Respondent ought to be
ordered to "reimburse " Emery for its excess outlay in
temporary payments to a more costly health and welfare
plan during the pendency of this dispute.
On the entire record , including my assessments of the
witnesses as they testified , my judgments of the inherent
probabilities , and the arguments of the parties on brief, I
make these
III. FINDINGS OF FACT11
A. Overview
II. THE ISSUES ON THE MERITS RAISED BY THE
COMPLAINT AND ANSWER
The complaint alleges and Respondent admits that on
May 11, 1987, Emery "voluntarily recognized " Respond-
ent as the "exclusive collective bargaining representa-
tive" of Emery's employees in a unit of drivers and asso-
ciated freight workers to be employed at Emery's new
terminal .8 The complaint also alleges that on that May
11 date Respondent reached "full and complete agree-
ment" with Emery on a labor contract for that unit, but
that Respondent later repudiated its agreement and re-
fused Emery's requests that it execute a document incor-
porating all its terms , and thereby failed and refused to
bargain in good faith within the meaning of Sections
8(b)(3) and 8(d) of the Act.
In its answer to these latter counts Respondent admits
that it reached "full and complete agreement" with
Emery, but implicitly qualifies that admission by aver-
ring that a "dispute exists ... as to the terms of said
Agreement with respect to Health and Welfare benefits
for bargaining unit employees ." Finally, Respondent
admits that Emery has asked it to execute a document in-
corporating Emery's version of their agreement, and
seemingly admits also that it has refused Emery's re-
quests.
On the merits, the case presents only one basic ques-
tion : Did an agent of Respondent9 agree, as part of over-
8 The pleadings do not raise any issue about the lawfulness of Emery's
prehire recognition of Respondent, nor the appropriateness of the plead-
ed unit ("All full-time and regular part-time drivers , dockworkers, plat-
form men , terminal yardmen and hostlers ... excluding office clerical
employees , guards, and supervisors as defined in the Act"). Since no one
contends otherwise , I presume for all purposes that Emery 's relationship
with Respondent in that unit is a lawful one , attended by the full panoply
of presumptions , protections , and proscriptions set forth in Secs 9 and 8
of the Act
9 Respondent admits in its answer that its officials named in the com-
plaint as "agents" (Chuck Mack , secretary-treasurer ; Jim Manning and
Dan Varela , business representatives) held the titles the complaint asserts
they held at material times ; it denies that those officials "acted as agents
of Respondent with respect to any alleged misconduct in this case." I
treat this as putting into issue whether any or all of the named individuals
were agents with power to bind Respondent to a collective -bargaining
relationship and agreement
Emery picks up and delivers freight and packages
throughout the world , maintaining three terminals near
airports in the San Francisco Bay Area, at South San
Francisco , San Jose, and (most recently) Oakland.' 2 At
South San Francisco , the employees in what the parties
call the "drivers" unit work under a contract between
Emery and Teamsters Local 85; office clerical employees
there are represented by Teamsters Local 856. At San
Jose, the drivers unit is represented by Teamsters Local
287.
In August 1986 , Emery had tentatively decided to
transfer a large " portion of South San Francisco's work
across the bay, to a new terminal at the Oakland airport,
which is within Respondent's territorial jurisdiction. Due
to various delays not associated with the current dispute,
Emery did not relocate work or personnel to Oakland
until October 1987 . At that time , 23 South San Francisco
drivers transferred to Oakland , along with one full-time
and two part-time office clericals . Emery also intended
to-and eventually did-transfer a smaller portion of the
South San Francisco work and personnel to San Jose.
Under the labor agreements between Emery and
Locals 85, 856 , and 287,13 these operational changes re-
quired negotiations and consultations between and
among Emery and the Locals representing employees af-
fected by the changes, all directed towards reaching
agreement on such questions as how many employees
from South San Francisco would be entitled to transfer
to Oakland (or to San Jose), according to what bidding
to I refer here to the harmonious positions taken by both the General
Counsel and Emery before the General Counsel learned of the NGC de-
cision and took the position that this prosecution should cease in defer-
ence to the NGC decision.
11 At various points below I quote from letters or from transcripts of
various joint labor-management committee meetings . All other findings
derive either from the same documentary sources or from the testimony
of the General Counsel 's three witnesses , Ploshay, La Scala , and Milling.
12 In the year before the complaint issued , Emery , a Connecticut cor-
poration , derived more than $50,000 from interstate transportation of
goods.
13 The record does not contain any labor agreements governing the re-
lationship between Emery and those locals , but the parties stipulated that
they are substantially equivalent to the specimen received at the Novem-
ber 17 hearing.
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rights and seniority protections, and under what kind of
contract when they got there. Since Emery planned to
recognize Respondent as the bargaining agent for the
employees in the new Oakland operation , Respondent
was necessarily one of the Locals party to the process.
Once these preliminary negotiations and discussions had
taken place , Emery's proposed relocation would be ripe
for submission for the "approval" of a joint industry
panel called the "Change of Operations Committee"
(COC).14
With all this in mind , Emery's regional "Human Re-
sources" manager, James La Scala, enlisted Bernard
John Ploshay to act as Emery's agent for purposes of
concluding the necessary arrangements with the unions
affected by Emery's plans, including with Respondent.
Ploshay is an official of the California Trucking Asso-
ciation (CTA). He wears many hats within the CTA,
which performs lobbying functions and also represents
its members , including Emery, in labor contract adminis-
tration matters. Ploshay himself deals regularly with Re-
spondent and the other Locals through his participation
on various standing grievance committees and other joint
labor-management panels.
WTWT is only one of several health and welfare plans
in which Respondent participates in its relationships with
various trucking and delivery firms within its East Bay
jurisdiction. (Another one is the East Bay Drayage Driv-
ers Security Trust Fund.) But, because WTWT's contri-
bution rates are lower than the Local 85 plan effective at
South San Francisco (and also apparently lower than the
East Bay Drayage Drivers' fund), WTWT was the one
Emery set its sights on.1 s Thus, Ploshay testified that
when he first received instructions from La Scala he
agreed with La Scala that he would "make that i.e.,
WTWT as-the sole point of moving into the area with
a confirmation from whatever representative there was
assigned to the Emery barn."
It seems reasonable to conclude that the questions of
basic contract terms and fringe benefit coverage for Oak-
land unit employees would necessarily be paramount in
any dealings between Emery and Respondent . Indeed, it
seems realistic to suppose, as Ploshay insisted , that the
fringe benefit question would be the only one of any po-
tential contention between Emery and Respondent since
it seems to have been otherwise understood that the
"basic agreement" (identical in each Local's jurisdiction)
would not be altered by the transfer of work to Oakland,
only the substitution of Respondent 's name as the em-
ployees' representative . With these considerations in
mind , I have no difficulty crediting Ploshay, as corrobo-
rated and supplemented by La Scala, that the matter of
health and welfare coverage under WTWT was a central
feature of his ensuing discussions with persons claiming
to speak for Respondent.16
As detailed below , Ploshay spoke with different offi-
cials of Respondent on several occasions between mid-
August 1986 and May 11, 1987, the date on which the
parties agree in their pleadings that Emery and Respond-
ent reached "full and complete agreement" for the Oak-
land unit . May 11 was the date on which a meeting of
the COC was convened , and at which the COC "ap-
proved" Emery's outlined plan (which specifically made
reference to WTWT) after permitting comments , clarifi-
cations, and statements of "protest " or "no protest" from
the various affected Locals . It was attended by Respond-
ent's business representatives Jim Manning (who had pre-
viously dealt with Ploshay concerning the relocation and
had agreed to WTWT), and Dan Varela (who had not
participated in any dealings with Emery, so far as this
record shows). Manning and Varela voiced "no protest"
to Emery's plan, as presented , and the COC eventually
"approved" it, after representatives of other locals ob-
tained clarification on certain points unrelated to
WTWT. It was not until months later, in late September,
on the eve of Emery's move to Oakland , that Respond-
ent's chief executive, Chuck Mack, declared that he
would not give Emery a contract which contemplated
the WTWT benefit plan.
B. The Parties' Dealings Prior to the May 11, 1987
COC Meeting
In "approximately mid-August 1986," Ploshay attempt-
ed to reach Respondent's chief executive, Mack, by tele-
phone. When Mack was "not available," Ploshay tele-
phoned Respondent 's president, Joe Silva, saying, "point
blank, that I have a company that is interested in moving
into your jurisdiction that does not and has not operated
within Local 70's jurisdiction, and the sole and only cri-
teria [sic] before them would be to come under the
WTWT health and welfare plan and not the East Bay
Drayage Drivers' Security Trust Fund." Silva replied, "I
have no problem with that and I'll agree to that. Since
they have not had an operation in our area ." Ploshay
said, "Fine," then disclosed that Emery was the compa-
ny in question. At some point, Ploshay told Silva that
Emery had "independent contracts" with both Locals 85
and 287 and that "somebody would be signatory to that
same contract with the exception of health and welfare,
14 Since November 17, the record has contained specimen contracts
which contain many references to the COC, none of them so directly rel-
evant to the issues as to require quotation . For our purposes , I blend the
testimony with the contract descriptions to find that one of the COC's
functions is to "approve" the arrangements between the employer and
the locals affected by a "change of operations," and apparently to certify,
indirectly , that the arrangements are acceptable to all interested parties. I
note that Emery 's agent Ploshay attempted at various points to describe
the powers-and the limitations thereon-of the COC. Ploshay's descrip-
tive efforts were inconclusive and I do not take them as "authoritative."
The minutes of the COC's own proceedings provide only indirect and in-
conclusive hints about those matters.
15 According to Ploshay , WTWT costs roughly $100 per employee
per month less than the Local 85 plan.
16 In a September 29, 1986 book letter outlining Emery 's plans from
La Scala to the CTA and to the "Union Secretary , Joint Western Area
Conference Committee ," La Scala did not specifically identify Emery's
wish to be placed under the WTWT plan as the chief basis for the
planned change in operations ; rather, La Scala spoke only of Emery's
desire to be "competitive," and to use the new Oakland facility "to better
provide the A.M. delivery of the overnight service we offer our custom-
ers as well as being better positioned to more effectively meet the needs
of a growing customer base in the East Bay " I do not find this commu-
nication to be so inconsistent with Ploshay 's and La Scala 's testimony as
to warrant my discrediting of them when they say that , at least for pur-
poses of dealing with Respondent , WTWT was to be cited as the main
reason for Emery 's wish to move into Oakland.
TEAMSTERS LOCAL 70 (EMERY WORLDWIDE) 1129
which would be under WTWT." Silva replied that this
would be "no problem." Ploshay asked "which business
agent would be assigned to that particular barn," and
Silva said that it would "most likely be Don Gomez, but
that could change." Ploshay asked if he could "set up
preliminary talks" with Gomez . Silva voiced no dis-
agreement.
On a "Thursday in early September " 1986, Ploshay
participated in a "Joint Council 7 Labor-Management
Committee" meeting in which Don Gomez also partici-
pated as a "panel member ." At some point Ploshay told
Gomez that "Joe has informed me that . . . you are the
business agent to handle the air freight companies. I am
moving Emery into your area, and we're coming in with
one exception [sic] and one exception only, and that is
you come under with [sic ] TWT health and welfare trust
fund, and . . . have an independent contract ." Gomez
then referred to a "similar" arrangement which Respond-
ent had made with Peter Truck Lines , 17 and then stated,
"I have no problem with that . I agree to it." Later in
their discussion , Gomez told Ploshay that Chuck Mack
was "rearranging the duties of the business agent," that
Gomez "might not continue ," and that Jim Manning
might replace Gomez in dealings over Emery's Oakland
"barn."
"About mid-September" 1986, Ploshay and Manning
met at the Oakland Holiday Inn (apparently , although
the record is vague, this was incidental to a joint com-
mittee meeting unrelated to Emery's relocation plans).
Ploshay "congratulated " Manning for his "promotion or
his hiring on as a new business agent," then asked if
Manning were "aware that I'm bringing Emery in," to
which Manning replied, "Yes, Joe and Don told me
about it ." Ploshay then said , 18 "To clarify everything
.. . we're coming under the WTWT health and welfare,
and that you 'll be signing an independent . . . schedule
C, a white paper agreement."
On April 10, 1987, Ploshay, La Scala, and other
Emery representatives met in San Jose Local 287's of-
fices with representatives of the various affected Locals
(including Manning, for Respondent). Also attending that
meeting was Archie Murietta, the "assistant freight direc-
tor" for the Western Conference of Teamsters , apparent-
ly someone with overall authority on the locals' side.19
As described by Ploshay, the meeting was a "prelimi-
nary" one, designed to iron out any disputes before for-
mally submitting Emery's plans to the COC meeting,
scheduled for 1 month later; it apparently reflected the
first effort to get all the concerned parties together at the
same place and time. La Scala did most of the talking for
17 Ploshay and Gomez had negotiated a similar switch to WTWT
when Peters, another CTA member , had moved certain operations from
Sacramento to Oakland.
18 The transcript (39:12) implies that the quote next set forth in main
text was made by Manning , not Ploshay . But the internal logic of the
conversation being described by Ploshay at this point, and the overall
context of Ploshay's account , cause me to conclude that it was Ploshay
who made the remarks quoted next Accordingly, I treat the transcript's
"He said" as a misrendenng of "I said."
19 As described below, Murietta met directly with Ploshay a few days
later to pursue certain issues which had been unresolved between Emery
and Local 85 about the "number of bodies" to be transferred from South
San Francisco to Oakland
Emery, outlining with chalkboard and other visual aids
how Emery's move would affect each of the "gaining"
and "losing" locals . When he reached the impact on Re-
spondent, he "informed Jim Manning . . . that they
would effect a schedule C contract. Since A belonged to
85, B belonged to 287, schedule C would belong to
Local 70 with the WTWT health and welfare that Local
70 had already agreed to." Crediting Ploshay, Manning
either said "Yes," or nodded his head in acknowledge-
ment at La Scala's reference to WTWT coverage. La
Scala stated that otherwise , the "general provisions . . .
would be identical , would mirror the contract in exist-
ence with 85 and 287." The only person who questioned
the WTWT aspect was Local 85 's representative, Phil
Dindia, who queried whether certain potential transfer-
ees from South San Francisco who were nearing retire-
ment would be required to transfer to the WTWT pro-
gram , pointing out that, because of WTWT's unique re-
quirements , such transferees would not have health and
welfare coverage after retirement unless their employer
had previously paid into WTWT on their behalf for at
least 24 months . La Scala verified with Ploshay that this
would be the case, whereupon La Scala, in Ploshay's
words, "made a concession . . . with the concurrence of
Local 70 that . . . they [i.e., the transferees nearing re-
tirement] would remain in the Local 85 health and wel-
fare program ." 20 By the close of the meeting, according
to La Scala, the only issues which remained unresolved
were ones which were unrelated to the WTWT cover-
age issue; among them , how many drivers would be al-
lowed to transfer (Emery then wanted to limit it to 16;
"the Union" said it should be 23),21 how long the
"window period" for submitting transfer requests should
last (Emery wanted 30 days; the "Western Conference"
wanted 90 days), and what was to be done about certain
part-time office clericals in Local 856's unit.
On April 13, Ploshay met with Murietta in Murietta's
Western Conference offices. Ploshay stated that Emery
would offer a total of 23 positions for would-be transfer-
ees from South San Francisco , and that Emery would
agree to the 90-day window period, but remained ada-
mant on whatever position it was taking with respect to
the part -time office clericals. Ploshay said he felt that
this should resolve all outstanding issues and stated he
would put Emery 's revised plan in writing and mail it to
Murietta . WTWT was not discussed.
On April 30, La Scala followed through with a three-
page letter to Murietta , with copies to other concerned
parties, including Manning , for Respondent . La Scala
"confirm[ed ] the position of the Company and . . . re-
quested concurrence on these matters," listing a number
of details . For our purposes , the ones noted as applicable
to Oakland are the most important, especially this pas-
sage:
80 It appears from Ploshay 's account that Dindia's concerns were fo-
cused on "two individuals" from South San Francisco whose retirements
were near enough that they would not expect to work long enough
under WTWT to be eligible for postretirement coverage.
21 In context (see Tr 49), it appears that La Scala was here referring
to demands made by Local 85.
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A Collective Bargaining Agreement (General and
Supplement C) will be signed and will prevail. Gen-
erally, they Oakland drivers will belong to the
W.T.W.T. plan. However, if any of the successful
bidders are within 24 months or less of retiring on
the date of transfer and they are between 62 and 65
years of age , they will continue to belong to the
1BT Local 85 health and welfare plan. All other
conditions of the Local 70 Collective Bargaining
Agreement (General and Supplement C) will pre-
vail.
The letter closed with La Scala's invitation for readers
to call him with any questions and his assurance that he
would be in attendance at the scheduled May 11 COC
meeting.
C. The COC Meeting
At the COC meeting on May 11, La Scala led Emery's
presentation team . Manning, accompanied for the first
time by Business Representative Dan Varela , formally
appeared for Respondent ; 22 the other affected locals also
participated through designated representatives . Before
the meeting opened , Ploshay met informally with Man-
ning and Local 85 's representative , Dindia . Ploshay
asked if either of them had "any problem" with the plan
set forth in La Scala 's April 30 letter . Dindia said he did
not, and Manning said , "It looks good to us . There's no
problem."
When the meeting formally convened and began to be
transcribed , all of the participants , including Manning,
had copies of La Scala's April 30 letter before them. At
the outset, the COC chairman asked each representative
of the affected Locals to state "protest" or "no protest"
to Emery's plan, apparently assuming that each partici-
pant was familiar with the pertinent details . Manning and
Varela for Respondent each replied , "No protest." La
Scala then made a verbal presentation , summarizing the
intended arrangements between Emery and the various
locals . He specifically repeated that "the lower
W.T.W.T. plan" would "generally" apply to the Oak-
land operation , except as to any employees within 24
months of retirement . After other items, unrelated to the
case, were explored and clarified , the COC members
withdrew to "Executive Session ," where, according to
the transcript of proceedings , a "motion was made, duly
seconded , and approved" that "the company 's proposed
change be approved as clarified by the parties on the
record."
D. Respondent Refuses to Go Along with WTWT
In late September 1987, Emery's agent Robert Milling
(who had taken over for La Scala) asked Manning to
assist him in preparing final contract and trust subscrip-
tion documents for the parties' signatures , specifically re-
questing that Manning furnish him with "the proper lan-
guage and dollar amounts so that the WTWT health and
welfare could be put in the contract ." Manning promised
to "get back . . . in a day or so." A few days later, Man-
22 The transcript of the meeting shows Manning and Varela as appear-
ing "For Local 70 "
ning called Milling to say that he could not furnish the
necessary "language," and that Manning would "not
give any information on it" because "you're not going to
be permitted to go into the WTWT program ." Manning
explained that Chuck Mack had declared this position.
On September 30, with the Oakland move scheduled
to take place the following Monday, Milling asked Local
85's Dindia to arrange a direct meeting with Mack in
Mack's offices . Dindia set up the meeting for the same
day and also attended it. There, Mack told Milling,
"There ain 't no fucking way you 're going to get the
WTWT." Mack added , "I'm going to shut you down
over at Oakland . . . you might make that move . . . but
I'm going to make your life so miserable over there
you'll wish to God you never made that move.... I
will send five business agents over there every day .. .
doing safety inspections . . . we'll harass your place until
you'll be sorry you went over there ." Milling showed
Mack the transcript of the May 11 COC meeting in
which WTWT had been specified by La Scala, and
argued that Emery should not be penalized for what
Milling thought was an internal "Union problem." Mack
rejoined that Manning had had "no authority.... He
didn't know what he was doing . He was green ." Eventu-
ally, Dindia stated that he was going to "instruct my
people not to go over to that facility Monday unless we
get some kind of agreement on this ." Milling consulted
by telephone with officials of Emery, then agreed to an
interim arrangement which, as set forth in a "Letter of
Understanding" signed by Milling, Mack , and Dindia on
September 30, provides as follows:
Local 85 is hereby requesting that EMERY
WORLDWIDE continue to be bound by the terms
... of the existing agreement with respect to the
Local 85 Health and Welfare Fringe Fund for those
members transferring into Local 70's jurisdiction
until such time as the question regarding the appro-
priate Health and Welfare Trust for employees .. .
is resolved by the parties.
On October 15 Milling wrote directly to Mack, "for-
mally requesting that you comply with the terms and
conditions as they were negotiated for our change of op-
erations . . . and send us the proper enrollment cards so
we can proceed to enroll our Oakland employees in the
W.T.W.T. Health and Welfare Plan." Mack 's October 21
reply professed "surprise" at Milling's demand, in the
light of their September 30 understanding to continue
under the Local 85 plan until the dispute were resolved.
He stated that Respondent did "not consider the issue re-
solved" and took the "position" that "contributions must
be made to the Local 85 Trust until we reach some other
understanding." On the same date Manning wrote to
Milling under Respondent 's letterhead , stating pertinent-
ly,
[P]lease be advised that it is Local 70's position that
all individuals coming to Local 70 will be covered
by the East Bay Drayage Drivers Plan and not the
WTWT.
i
TEAMSTERS LOCAL 70 (EMERY WORLDWIDE) 1131
E. Aftermath
1. Initial "grievance" stalemate
On January 20, 1988 , Emery filed an "Application for
Dispute Hearing," seeking relief-under the relevant
grievance provisions of the undisputed basic contract-
from Respondent 's refusal to honor the agreement it
thought it had reached with respect to WTWT plan cov-
erage . Following an inconclusive first-stage joint griev-
ance committee meeting, the dispute was somehow "re-
ferred" not to the regular "Joint Western Area Commit-
tee" (JWAC) grievance panel , but instead to a special
session of the COC, held on May 10. Emery received
less than 24 hours' notice of the proceeding.23
Appearing before the COC in response to Emery's
grievance , Mack acknowledged that he had threatened
to "make life miserable" for Emery as soon as he had
learned that Emery was claiming entitlement to use the
WTWT plan. Mack also inconclusively questioned the
"authority" of the COC to allow a "company to move to
a lesser health and welfare trust ." Although acknowledg-
ing that he had "checked with the business agent that
handled this particular case" (evidently referring to Man-
ning) and had received "his version of the facts," Mack
never denied that Manning had committed Respondent
to WTWT. Instead , Mack stated that "the business agent
that handled this particular case . . . was new and I
don't think he understood or appreciated the change of
operations procedures , and the case in particular."
Following Mack 's arguments , the COC went into "ex-
ecutive session," where someone made a motion for a
ruling that the COC's May 1987 "change of operations
decision . . . did not approve the company 's request to
cover those individuals who transferred from Local 85 to
Local 70 under the WTWT health and welfare plan."
According to the abbreviated transcript, the COC panel
"deadlock[ed]" on this motion and the "issue was re-
ferred to the National Committee for adjudication."
2. Posttrial developments ; events preceding the
NGC decision
It was with matters of record in roughly this posture,
with much in doubt about the prospects of the dead-
locked grievance (including whether or when the NGC
was disposed to hear, or, if so, to decide it) that I closed
the trial record on June 9. In the reopened hearing on
23 Replying to Respondent 's counsel 's inquiry in the November 17
hearing, La Scala conceded generally that often the same personalities
appearing on COC panels play analogous roles on the JWAC. In this
case, however, it appears that the COC was comprised of a different mix
of characters than would have comprised the JWAC panel. Emery's
counsel now characterizes the "last -minute" switch to the COC forum as
involving "backstage political maneuvering" which "prevented Emery's
representatives from completing their preparation [for the JWAC pro-
ceeding]." Counsel cites this "irregularity" in the grievance system as
militating against deferral to the NGC decision . As I detail below, how-
ever, Emery expected , as a result of a certain "backstage maneuvering"
of its own with the Western Conference 's Murietta , to get more favor-
able treatment from the JWAC than from the COC If the "clean hands"
doctrine in equity were applicable here, it might thus estop Emery from
making this particular challenge to the "regularity" of the overall griev-
ance process In view of my ultimate determination , however, I need not
decide whether the switch to the COC forum was independently "irregu-
lar" enough to warrant nondeferral to the NGC decision.
November 17, La Scala explained that Emery took no
further affirmative action to advance its grievance after
the COC deadlock, assuming that the prosecution before
the Board would take precedence . On September 1,
however, La Scala learned that the NGC had scheduled
the grievance to be heard in Washington , D.C., on Sep-
tember 22.
La Scala then telephoned Arthur Bunte Jr., in Wash-
ington, D.C. Bunte is the president of Trucking Manage-
ment , Inc. (TMI), a corporation which represents much
of the trucking industry in, among other things , dealings
with the Teamsters at the International level.24 Bunte is
also the "Employer Chairman" of the NGC, a bipartite
panel . (William J. McCarthy, president of the Interna-
tional Brotherhood of Teamsters, is Bunte's counterpart,
the "Union Chairman .") When Bunte returned La Scala's
call, La Scala advised Bunte of the pending Board pro-
ceedings and asked Bunte alternatively to have the NGC
either retain the grievance in "executive session" pending
the Board 's disposition , or "remand" the grievance for
consideration by the "Western Conference" (JWAC)
grievance committee which, La Scala argued, should
have first heard it, rather than the COC.25 Bunte was
noncommittal , but asked La Scala to prepare a "state-
ment of facts ." La Scala says he typically writes such a
statement for the employer chairman in such cases, and
follows up with a briefing in Washington , D.C., of the
"management committee ," where he "answer [s] their
questions face to face, if they have any, as they review
the case ." In this case , however, Bunte "indicated it
wasn 't necessary" for La Scala to "follow up with a trip
to Washington."
La Scala mailed a statement to Bunte on September
15, reiterating underlying facts consistent with my find-
ings on the merits, but also reiterating Emery's "strong
preference" that "either a) Archie Murietta lives up to
his commitment to rule in our favor, thereby pulling it
the grievance off the agenda, or b) having the National
Committee hold it in executive session until the NLRB
decision is issued."
3. Contractual authority of the NGC; the NGC
decision ; surrounding facts
The "General Provisions" of the contract which
Emery and Respondent are living up to and deem them-
selves bound by, subject to the WTWT dispute, de-
scribes the "National Grievance Procedure ." It states
pertinently at section 1:
All grievances or questions of interpretations [sic]
arising under this Agreement shall be processed as
set forth below except for disciplinary cases.
24 As I discuss below , TMI has not represented Emery in contract ne-
gotiations for several years.
2 La Scala believed , based on reports from his subordinate, Manning,
that Western Conference official Murietta had "suggested " in a "private
conversation" predating Emery's initial grievance that Emery "file a
grievance and he would 'take care of it' at his level at the J.W.A C.
Hearing ." This was a prospect, as La Scala complained in a followup
letter to Bunte, which was frustrated when Emery 's grievance was heard
instead by the COC, on which Murietta did not sit when the COC dead-
locked over the WTWT issue.
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) . .. If . . . the matter is deadlocked , the case
shall be immediately forwarded to both the Compa-
ny and Union Secretaries of the National Grievance
Committee , together with all pertinent files, evi-
dence, records and committee transcripts. . . . If
the National Grievance Committee resolves the dis-
pute by a majority vote . . . such decision shall be
final and binding upon all parties . If the National
Grievance Committee is deadlocked . . . then either
party shall be entitled to economic recourse to sup-
port its position . . . . In considering factual dis-
putes that are deadlocked or deadlocked questions
of interpretation , the decision of the National
Grievance Committee shall be based upon the pro-
visions of the Agreement.
On September 22, the NGC met and reached a deci-
sion . Since Emery, bearing the Olin burden of demon-
strating any "defects" in the NGC processes has not
shown otherwise , I must presume that the NGC had
before it substantially the same body of underlying griev-
ance processing records and COC transcripts and associ-
ated papers which were placed into evidence in this pro-
ceeding . 26 Among such items was the transcript of the
May 11, 1987 COC meeting wherein La Scala had speci-
fied WTWT, and La Scala's April 30, 1987 letter detail-
ing the WTWT coverage feature which was considered
by the COC in its original May 11, 1987 "approval" of
Emery's relocation plan.
This is the text of the NGC decision (my emphasis),
signed by the employer chairman and the union chair-
man, as it appears in the NGC's letter to Emery and Re-
spondent (and to Local 85) dated September 22:
Please be advised that the National Grievance
Committee , on September 22, 1988, adopted a
motion that based on the transcript and the fact that
the Joint Council 7 Supplement specifies the funds
into which health and welfare contributions are to
be made for each Local Union and further that the
Change of Operations Committee does not have the
authority to amend the contract , the request of the
Company is denied . Accordingly, the Company is
instructed to begin contributions into the East Bay
Drayage Fund effective October 1, 1988.
As all parties agree, the NGC's reference to the "Joint
Council 7 Supplement" is a shorthand reference to the
"Joint Council No. 7 Local Pickup and Delivery Supple-
mental Agreement" which binds Respondent, among
other San Francisco-area Teamsters Locals, and certain
employers represented by TMI. As its name implies and
its preamble certifies , that document "is supplemental to
and becomes part of the National Master Freight Agree-
ment NMFA." The NMFA is itself a creature of national
bargaining between TMI and the Teamsters.
26 Indeed , according to La Scala's uncontradicted testimony on No-
vember 17, which is consistent with the above -quoted contract provi-
sions, the NGC does not take "testimony" at its proceedings ; it receives
"transcripts and evidence submitted at the lower level grievance proce-
dure," and reaches a "closed-door decision."
As the NGC found, the local supplement does , indeed,
contain a clause which "specifies the funds into which
health and welfare payments are to be made," although
the fund actually identified in the supplement does not
have the same name (and apparently is not the same
actual fund) as the "East Bay Drayage Fund" into which
the NGC instructed Emery to begin making contribu-
tions.27
The NGC necessarily and plainly assumed in its deci-
sion, however (and its result was plainly driven by this
assumption), that Emery was bound to the local supple-
ment (and, in turn to the NMFA). 28 This central as-
sumption is contrary to fact . In fact, as Emery estab-
lished at the November 17 hearing without contradic-
tion, Emery had not been represented locally or national-
ly by TMI since 1981, when, in letters to all necessary
employer and union parties at all levels , Emery declared
its "intention . . . to withdraw from any multi -employer
bargaining unit in which Emery . . . has participated
with regard to said National Master Freight Agreement
and applicable Supplements . 29 In fact , as Emery also es-
tablished , it has, since 1981, separately negotiated sepa-
rate, independent , "white paper" agreements with all
local unions , and has communicated this to Respondent's
agents at various material times prior to and at the May
11, 1987 COC "approval" hearing.30
On October 10, counsel for Emery , citing substantially
the same facts, wrote to the NGC requesting "reconsid-
eration and correction" of its September 22 decision.
Emery has received no reply of record .311
All parties concede that a request for reconsideration
by the NGC is an extraordinary undertaking , not gov-
erned by any rules or precedent with which any party
was familiar , and therefore not susceptible of any fair
27 See C . P. Exh. 3, p. 51, sec. 1, which refers in turn to the "insert"
pasted-in at p 64 . The insert refers [my emphasis ] to "the San Francisco
Local 85 Drayage Drivers Security Fund ." Whether there are any mate-
rial substantive differences between the "East Bay" fund referred to by
the NGC and the "San Francisco Local 85 "' fund referred to in the local
supplement is a question unanswered on this record But it appears clear-
ly from other references in this record distinguishing the "Local 85" fund
from the "East Bay" fund that the two are distinct trust entities
28 It seems as clear as the NGC's brief text can make it that the NGC
found that Emery was already bound before May 11, 1987, to the local
supplement and thus reasoned that the COC exceeded its authority in
purporting to "amend" that supplement , thereby justifying an "instruc-
tion" to Emery to pay into the plan "specified" in the supposedly gov-
erning supplement , which , supposedly, called for contributions to the
East Bay Drayage Drivers fund
29 See C P. Exhs. 4-6.
30 The "independent , white paper" feature of Emery 's agreement with
Respondent is not disputed ; Emery had made this clear in La Scala's
April 30, 1987 letter outlining the plan which the COC approved on May
11. The same fact was adverted to in La Scala's transcribed remarks at
the May 11 COC hearing , and Ploshay's testimony in the June 9 trial fur-
ther establishes that he made the "independent, white paper " feature
clear in his own dealings with Respondent's agents prior to the COC's
approval action.
Si In Emery's supplemental brief, counsel refers to a "follow-up tele-
phone conference" with Bunte wherein , "Bunte informed La Scala that
he [Bunte] would discuss the Charging Party 's formal request for recon-
sideration with the Union Chairman ." This may be the same event ob-
liquely described on November 17 by La Scala , or it may be a represen-
tation about some additional communication conducted after I closed the
record for a second time . Assuming that such a conference took place
between La Scala and Bunte , I do not find it probative on any point
under consideration.
TEAMSTERS LOCAL 70 (EMERY WORLDWIDE) 1133
prediction as to when any such reconsideration might be
accomplished. 3 2
IV. ANALYSES, CONCLUSIONS OF LAW
seeking to have the Board ignore the determination
of an arbitrator has the burden of affirmatively dem-
onstrating the defects in the arbitral process or
award.
A. Deferral Question
In Olin Corp., supra, the Board (Member Zimmerman
dissenting as to standards , but not as to result) deferred
to an arbitrator's decision and dismissed the complaint,
reversing the administrative law judge who had refused
to defer because he found the arbitrator 's decision want-
ing in its treatment of the statutory unfair labor practice
issues . The Olin majority found its dismissal of the com-
plaint "consistent" with the standards for deferral enun-
ciated in its "seminal" decision in Spielberg.33 The Olin
majority was concerned that "The judge's decision here,
like so many past decisions of this sort, serves only to
frustrate the declared purposes of Spielberg to recognize
the arbitration process as an important aspect of the na-
tional labor policy favoring private resolution of labor
disputes ."34 And elsewhere , the majority found evidence
that "the Board 's past Spielberg policy was not so much
policy as it was whim ."35 The majority also took the op-
portunity in Olin to "adopt" new standards, those pro-
posed by Member Hunter in his dissent in Propoco, Inc.,
263 NLRB 136 (1982). Thus, the majority "would find
that an arbitrator has adequately considered the unfair
labor practice issue if,"
(1) The contractual issue is factually parallel to
the unfair labor practice issue, and (2) the arbitrator
was presented generally with the facts relevant to
resolving the unfair labor practice . In this respect,
differences, if any, between the contractual and stat-
utory standards of review should be weighed by the
Board as part of whether an award is "clearly re-
pugnant" to the Act. And, with regard to the in-
quiry into the "clearly repugnant" standard, we
would not require an arbitrator's award to be total-
ly consistent with Board precedent . Unless the
award is "palpably wrong," [fn . cites omitted] i.e.,
unless the arbitrator's decision is not susceptible to
an interpretation consistent with the Act, we will
defer.
Finally, we would require that the party seeking
to have the Board reject deferral and consider the
merits of a given case show that the above stand-
ards for deferral have not been met. Thus, the party
32 In reply to my November 17 request for the "advice" of the parties
about "how long , if at all , I sit on my consideration of the issues that are
currently before me before reaching a judgment ," Respondent 's counsel
advised me of his understanding that the NGC meets "quarterly," that
the September 22 decision was apparently rendered in the third quarter,
that "their next quarterly meeting would normally be set for the end of
December , but . because of the . . . holidays , in fact , their next quar-
terly meeting is set for sometime around the beginning of January. I
know that is their general procedure . sometimes they vary from it."
sa Speelberg Mfg. Co., 112 NLRB 1080 ( 1955), characterized by the
Olin majority as requiring deferral "where the proceedings appear to
have been fair and regular, all parties have agreed to be bound , and the
decision of the arbitrator is not clearly repugnant to the Act." 268 NLRB
at 573-574.
84 268 NLRB at 574
35 268 NLRB at 575.
I must note first that the facts of this case are in no
way comparable to those in Olin , even though I regard
myself as bound to apply the Olin majority 's new stand-
ards . But, with due regard for the Olin majority's addi-
tionally expressed wish to "restrict the `overzealous dis-
section of [arbitrators'] opinions',"36 I conclude that
Emery has quite adequately "demonstrated . . . defects
in the arbitral process or award" herein which strain
even the more liberalized Olin standards beyond their
tensile limits.
The NGC's decision is "palpably wrong" in the criti-
cal sense that it depends on an erroneous assumption-
that Emery was bound to a certain local supplement
which required it to contribute to the "East Bay
Drayage Drivers fund ." This is an assumption, more-
over, with no apparent backing in the "record" placed
before the NGC. And, to the extent the NGC went "out-
side the record ," it acted "irregularly," in apparent viola-
tion of the procedures on which it was contractually em-
powered to decide the grievance , assuming , arguendo,
that it had power to do so .37 This was no "technical"
defect, nor mere "harmless error." This "defect" preju-
diced Emery fundamentally and therefore implicated the
core concerns for "fairness and regular [ity]" under Spiel-
berg which the Board reaffirmed in Olin.
Because the NGC determined erroneously that Emery
was bound to the local supplement (a supposed agree-
ment which the COC had no power to "amend"), the
NGC was able to avoid entirely the unfair labor practice
issues presented in this case , and, as well, to avoid con-
sideration of the body of facts on which this unfair labor
practice prosecution is predicated . Accordingly , it would
be quite strange to find that this case and the case decid-
ed by the NGC involve the requisite "factual parallel-
ism." This is so despite the ironic happenstance that the
record actually placed before the NGC did include facts
which are roughly "parallel" to the ones presented
herein , but facts which were obviously of little signifi-
cance to the NGC, given its assumption that Emery was
bound to a different agreement, the local supplement.
In Olin, the Board found that the arbitrator had a "rea-
sonable basis" for making a "contractual interpretation"
which was not "clearly repugnant" to controlling Su-
preme Court interpretations of the Act.38 Here, I can
36 268 NLRB at 574.
97 The NGC's contractual authority is circumscribed by the last-
quoted provision above , which requires that the NGC 's "decision . .
shall be based on the provisions of the Agreement " Here, there is no mu-
tually signed "agreement " document; the dispute is about what that docu-
ment should contain . Accordingly, the impact of that clause on the
NGC's power to decide whether the parties ' "Agreement" called for
WTWT coverage is problematic . Certainly the NGC has no clear power
to engage in "interest arbitration" and, to that extent , its power to
"impose" a certain contract term-as opposed to "interpreting" one-is
dubious.
38 268 NLRB at 576.
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
find no such "reasonable basis" for the NGC's decision
that Emery is bound to the local supplement . Moreover,
to the extent the NGC's decision may be seen as requir-
ing the imposition on Emery of a contract , or significant
term thereof, which the facts plainly show it never dis-
cussed , much less assented to, the decision collides with
a national labor policy, embodied in Section 8(d) of the
Act, against "compel[ling] either party to agree to a pro-
posal or . . . making . . . a concession ." In that sense,
the NGC decision is "repugnant" to the purposes and
policies of the Act. And, for the Board to give deference
to it in this instance would place the Board 's imprimatur
on a result which the statute would not allow the Board
itself to reach.
Accordingly, I will not defer,-99 and I thus turn to the
merits.
B. The Merits
The complaint focuses on May 11, 1987, the date the
COC "approved" Emery's "change of operations," as
the date on which the parties reached "full and complete
agreement"40 on a contract for the Oakland unit. Re-
spondent admits that agreement was reached on that day.
While this admission does not fit well with other posi-
tions taken by Respondent in its answer and elsewhere, I
may at least rely on it as establishing that May 11, 1987,
was a date that the parties to this case agree was a criti-
cal one for purposes of forming a mutually binding con-
tract . I will therefore start by assuming , consistent with
the pleadings , that the "approval " action of the COC on
May 11 was mutually understood by the contracting par-
ties as a necessary step before any prior arrangements be-
tween Emery and Respondent relating to the move to
Oakland could transform into binding labor agreements.
In these circumstances , the only remaining question is
whether the compact admittedly made by Respondent on
May 11 specifically contemplated adoption of the
WTWT plan. I have no doubt on this record that it did.
The record unmistakably shows that by the point the
COC approved Emery's proposed operational change on
May 11 , Emery and various officials of Respondent
(most notably, Manning)41 had conciously and fully ex-
plored Emery's revised plan to cover its Oakland em-
ployees with WTWT, except for a small minority of
near-retirees transferring from San Francisco. Emery's
89 I do not adopt the General Counsel 's alternative suggestion that I
defer under Dubo principles , pending the NGC's action on Emery's re-
quest for reconsideration of the September 22 decision There is no rea-
sonable assurance on this record that the NGC will act , much less that it
will act in a way which disposes of the statutory issues herein, much less
that the parties will deem themselves bound to any decision on reconsid-
eration which the NGC might render.
40 "Full agreement," or "complete agreement," would do the job, I
will find it adequate below simply to use "agreement."
41 In disposing of lurking "agency" issues I will focus elsewhere below
on Manning 's status, since Manning was the business representative who
was ultimately held out to Emery as Respondent's representative for pur-
poses of concluding arrangements for Emery's Oakland terminal. And
since a principal may be bound by the action of only one person acting
with apparent authority , I need not complicate this decision by address-
ing and disposing of any questions which might be raised about whether
Respondent 's officials Silva and Gomez (or the Western Conference's
Murietta, for that matter), who had previously indicated assent to the
WTWT plan, were independently capable of binding Respondent to it
wish-and Respondent 's willingness-to make the
WTWT plan the generally applicable one for the new
Oakland unit had been made plain in Ploshay 's first dis-
cussion with Manning in "mid-September 1986," and was
hammered home during the April 10, 1987 meeting in
San Jose, attended by Manning , when Emery first made
a "concession" to permit near-retirees transferring from
San Francisco to remain under the Local 85 plan.
WTWT was explicit in La Scala's April 30, 1987 letter, a
copy of which Manning received , and in La Scala's tran-
scribed oral summaries in the COC meeting . According-
ly, there can be no doubt that by the point on May 11
when Manning and Varela formally voiced "No pro-
test," they were both on notice-and Manning knew, in
fact-that WTWT would be the "generally" governing
plan for the new Oakland unit.
Respondent has somewhat obliquely put Manning's
agency status into issue by its answer . But if Respondent
still contends (as Mack did to Milling) that Manning had
no "authority" to bind Respondent , that contention
would be hard to square with the record.42
The record shows that from "mid-September 1986"
through May 11, 1987, Manning , admittedly Respond-
ent's employee with the title "Business Representative,"
appeared at meetings on Respondent 's behalf and held
himself out as someone speaking for Respondent when it
came to making a labor agreement for the Oakland unit.
I infer from Mack's later statements about Manning's
role that Mack would have had no trouble affirming
Manning's authority if on May 11 Manning had solem-
nized an agreement more to Mack 's preference. But
there is no indication that Manning (nor anyone else
claiming to speak for Respondent at various times) had
ever told Emery that Mack 's personal approval was a
condition to perfecting their agreement . And the fact
that Manning may have been inexperienced (or "green,"
as Mack claimed out-of-court) does not, under any
theory I know of, entitle Respondent to undo the deal
Manning formally adopted on its behalf in the May 11
meeting. Rather, "irrespective of the wisdom of the
Union 's actions in agreeing to the Employer's terms .. .
it is bound by its agent's conduct and cannot now ad-
vance reasons why it should not have taken the action it
did."43
I therefore conclude as a matter of law that Manning
acted on and before May 11 as Respondent's agent for
purposes of cementing a labor agreement with Emery for
the Oakland unit and that Respondent became bound to
the contract Manning made on May 11, which specifical-
ly contemplated WTWT as the generally applicable plan.
The record demonstrates that Respondent , at all times
since on or about late September 1987, failed and refused
42 It would be harder still to square it with other aspects of Respond.
ent's answer , considered in the light of the record By admitting that the
parties reached agreement on May 11 , Respondent necessarily concedes
that Manning had authority to bind Respondent , since it was Manning,
not Mack, who appeared for Respondent at the meeting where the agree-
ment was admittedly concluded.
43 Electrical Workers IBEW Local 22 (Electronic Sound), 268 NLRB
760, 764 fn 14 (1984), enfd. 748 F.2d 348 (8th Cit . 1984) And see, e.g,
Teamsters Local 85 (Tyler Bros. Drayage), 206 NLRB 500, 507 ( 1973);
Southern Lumber Co ., 279 NLRB 187, 189-190 (1986)
TEAMSTERS LOCAL 70 (EMERY WORLDWIDE) 1135
to be bound by that agreement insofar as WTWT cover-
age is concerned , and has failed and refused to assist
Emery in reducing that agreement to writing for joint
signature . 44 By all of those acts and defaults , Respondent
has failed and refused to bargain collectively in good
faith within the meaning of Sections 8(b)(3) and 8(d) of
the Act.
V. THE REMEDY
In my recommended Order, Respondent will be re-
quired to cease and desist from repudiating the modified
WTWT coverage agreement it became bound to on May
11, 1987, and from interfering with any future steps
Emery may take to participate in the WTWT benefit
plan consistent with the May 11 agreement . Affirmative-
ly, my order provides that Respondent , upon Emery's
request, shall immediatley join and assist Emery in pre-
paring and signing the basic contract documents, sub-
scription agreements , and other instruments necessary to
fully execute their agreement for WTWT coverage for
the Oakland unit employees.
Among other remedial requests made in its posttrial
brief, the General Counsel asks for an order requiring
that "Respondent ensure that . . . employees at the Em-
ployer's Oakland facility receive the identical coverage
and benefits they would have received had the WTWT
plan been implemented , as agreed to, since October 1,
1987, if indeed any losses were sustained by employ-
ees."45 Consistent with that request, I have tailored my
order to require that Respondent will bear any costs of
making Oakland unit employees whole, with interest,46
for any losses they may have suffered by virtue of Re-
spondent 's failure timely to execute its responsibilities
under the May 11 modified WTWT agreement.47
The General Counsel , joined by Emery, further re-
quests that Respondent be ordered to "reimburse"
Emery for a loss it suffered by not getting the benefit of
its bargain , namely, the difference between what Emery's
costs would have been under WTWT and its higher
costs under the Local 85 plan to which Emery has con-
tributed pursuant to its September 30, 1987 letter of un-
derstanding , signed after Emery had received Mack's
"make life miserable" threats and Dindia's statement that
he would recommend that Local 85 transferees not make
their move to Oakland until the benefit plan issue were
straightened out. I asked the parties to brief this issue.
At the end of his posttrial brief, the General Counsel
states that "Such a remedy comports with established
Board precedent and is neither extraordinary nor
unique ." In a footnote appended to this statement, he
cites as authority two cases which he finds "analo-
gous."48 In those cases the Board required defaulting
employers to make whole the benefit trusts for delin-
quent payments , even though the employers had made
interim payments to another plan. The General Counsel
reasons that under those cases, Respondent could lawful-
ly be required to submit to an even "harsher remedy,"
namely, that Respondent "pay into the WTWT plan the
full past due amount since October 1 with no offset for
moneys paid [by Emery] into the Local 85 plan." Citing
the "unique circumstances of this case ," however, the
General Counsel "asks only for the lesser remedy out-
lined above."
Apparently, the General Counsel would not only have
me equate Respondent with the defaulting employers in
the cited cases but also would have me equate Emery's
position to that of the trusts to which the Board required
those defaulting employers to make restorative payments.
Emery's attorneys implicitly draw similar equations on
brief, without citing the same cases . They find in Team-
sters Local 449 (Universal Liquor Corp.), 265 NLRB 1539,
1547 (1982), authority for a broad proposition ("In addi-
tion to the standard remedy, a make-whole remedy gen-
erally includes interest and administrative expenses to
compensate a party [my emphasis] for losses directly at-
tributable to the unlawful action").49
I am not persuaded by the authorities or the arguments
advanced by the General Counsel and counsel for Emery
for this "partial reimbursement remedy ." In the discus-
sion below I will explain why I conclude that "reim-
bursement" of Emery is not necessary to vindicate any
employee rights which were arguably impaired by Re-
spondent 's misconduct, and that the request for a reim-
bursement remedy is, at bottom, a seemingly quite un-
precedented attempt to use the Board 's processes to
compensate an employer for the "damages" which the
44 When the June 9 trial closed , Emery had not yet tendered for Re-
spondent's signature a complete , integrated , writing memorializing their
WTWT coverage agreement. Respondent 's declared position to that
point amounted to an anticipatory refusal to sign any such writing. Re-
spondent thereby made it a futility for Emery to go through the unilater-
al process of attempting to draft an agreement . Subsequent to June 9,
Emery nevertheless did prepare a specimen for Respondent's signature
(G.C Exhs. 20(A) and 20(B)) which Respondent has acknowledged accu-
rately reflects the May I I agreement except insofar as it purports to call
for WTWT coverage.
45 I note in this regard that the General Counsel would not require Re-
spondent to make any "back" payments to WTWT.
46 Any interest owed shall be computed consistent with Florida Steel
Corp., 231 NLRB 651 (1977) And see generally Isis Plumbing Co., 138
NLRB 716 (1962).
47 At trial, the General Counsel stated that he was "unaware" that any
employee had suffered "damages," and that it was the Region 's under-
standing that "the Local 85 plan is better, quote, unquote , than the
WTWT plan." I would leave to the compliance processes the determina-
tion whether any employees suffered losses under the Local 85 plan they
would not have suffered under WTWT.
48 Stone Boat Yard Y. NLRB , 715 F.2d 441 (9th Cir. 1983), and NLRB
Y. Carilli, 648 F .2d 1206 (9th Cir. 1981).
49 Contrary to Emery 's assertion on brief, the Board did not in Team-
sters Local 449 order a wrongdoing union to "make-whole" a "party,"
much less an employer party , for its costs arguably occasioned by a
union 's unfair practices In support of its claim, Emery calls my specific
attention to the Board 's Merryweather Optical footnote (265 NLRB at
1547, fn. 14) in which the Board left to "further proceedings " how much
interest it might be necessary for the union to pay to the "pension fund"
to satisfy the "make whole" order. I acknowledge first that the relation-
ship of that footnote to the balance of the Board 's order is unclear to me,
for the Order (consistent with all aspects of the Board's remedial discus-
sion, but not with the footnote in question ) simply requires the union to
"reimburse [the] employees , with interest," for any "loss of benefits" they
may have suffered by virtue of the pension fund's having refused the em-
ployer's tender of payments. But certainly, the footnote must be under-
stood as an extension of the Board's command in the main text to which
it is appended-that Respondent "reimburse employees, with interest, for
such loss of benefits." And, to the extent the Board found it necessary to
the vindication of employees ' rights to preserve the possibility that the
"pension fund" might itself be owed interest, the footnote in question is
unremarkable and does not aid Emery's argument
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employer may have suffered incidental to a union's com-
mission of an unfair labor practice-"damages" for
which Emery has other (arguably exclusive) avenues of
redress under our statute, and "damages" which, more-
over, Emery could have avoided from the start by ten-
dering payments to WTWT, the trust to which it was
obligated by its agreement to make any payments.
I must first note the difficulties inherent in any at-
tempts by the prosecuting parties to equate by analogy
Respondent 's position to that of an employer who, al-
though legally bound to do so, defaults in making pay-
ments into the appropriate trust fund , of which the unit
employees are the ultimate beneficiaries . Simply put, the
difficulty is that employers and unions party to a particu-
lar trust arrangement do not enjoy the same opportunity
to ensure that the trust is timely funded , in the event of
breach by the other.
Thus, when (as in the cases cited by the General
Counsel) an employer unlawfully fails to pay into the
plan to which the employer is legally bound , the unit
employees victimized by such conduct and their union
will have no recourse other than to pursue relief before
the Board or in the courts . During the pendency of such
proceedings, they can do nothing to ensure regular fund-
ing of and continuous benefit coverage by the appropri-
ate plan . And the employees ' losses in such cases may
not be measured simply by their out -of-pocket payments
for costs which would otherwise have been covered had
their plan been timely funded . Rather, their own eligibil-
ity for future coverage may be linked to the point at
which payments are first made on their behalf into the
trust, or the financial health of the trust itself may de-
cline as a consequence of the employer 's failure to make
timely payments . And it is in special recognition of the
employees ' rights to their collectively bargained benefit
plan that the Board will order the defaulting employer in
appropriate cases not only to belatedly tender to the
trusts the amounts in default, but additional sums, as nec-
essary to restore the trust to the condition it would have
occupied had timely payments been made.50
An employer such as Emery who faces a union's recal-
citrance in adhering to an agreement for a certain cover-
age plan has unilateral power to do something which
Emery failed to do-tender the necessary payments to
the agreed-on plan, thereby fully discharging the con-
tractual obligation to the employees . Since Emery never
took this step , we will never know whether WTWT's
trustees would have accepted the tendered payments.
But I would rather presume that they would have than
not, especially when , by engaging in the latter conduct,
the trustees would themselves be vulnerable to a charge
under the Act that they were acting as "agents" of Re-
spondent in the commission of Respondent 's unfair prac-
tices . See, in this regard , Teamsters Local 449, supra,
cited by Emery 's counsel as authorizing a reimbursement
to Emery through a Board order, but which I find of in-
terest for different reasons.51
60 And see generally Merryweather Optical, 240 NLRB 1213, 1216 at fn.
7 (1979).
51 If Teamsters Local 449 is useful at all to this remedial discussion, its
value lies in its contrasts to this case . There, the union claimed-and the
employer disputed-that the employer was obliged by their underlying
It was not necessary to the vindication of the statutory
rights (here equitable to the contract rights) of the Oak-
land unit employees that Emery incur the "excess" costs
for which it seeks compensation in this proceeding.
Those rights could have been protected by Emery's ten-
dering to WTWT the amounts it was required to pay
under the agreement . And, under Teamsters Local 449,
supra, the burden of bearing any losses to unit employees
occasioned by any subsequent failure of Respondent or
the trustees to "accept" those payments would then have
been squarely on Respondent 's shoulders.
Neither is it reasonable for these purposes to equate
Emery's position to that of a benefit "trust" which, as its
name implies, owes its fiduciary allegiance to the benefi-
ciaries of the trust , the employees whose labor agree-
ments place them under that trust's protection. Emery
occupies no such fiduciary status with respect to those
employees; for present purposes its obligation to them is
defined only by the labor agreement which required pay-
ments to WTWT on their behalf.
I have suggested that Emery's "excess " fund payments
were avoidable , since Emery could have, but did not,
discharge its own obligations under its agreement by ten-
dering payments to WTWT. It is also true , however,
that until September 30, 1987, Emery had every financial
interest in making contributions to WTWT and might
well have done so if it had not been daunted by threats
associated with Respondent's repudiation of the agree-
ment made by Mack and Dindia on September 30. Thus,
it is not frivolous for Emery to claim that it was "dam-
aged" by Respondent 's repudiatory conduct, specifically,
by Respondent 's threats . 52 But even if Emery's claims of
agreement to make pension trust payments on behalf of certain less-than-
full-time employees , in addition to full-timers about whom there was no
dispute. In aid of its position , the union enlisted the support of the trust-
ees of the pension fund , who refused the employer 's tender of payments
on behalf of the undisputed class unless the employer were also to sign
"stipulations" providing that the employer would also contribute on
behalf of the disputed class of employees . The Board found that the
union was wrong as a matter of contract interpretation in claiming that
the underlying agreement required payments for the disputed employees,
and accordingly held that the union violated Sec. 8 (b)(3) by "demanding
that [the employer] execute the stipulations . . . and by refusing through
its agents, the pension fund trustees , to accept payments tendered by [the
employer] ." 265 NLRB at 1546. Here, since there was no tender of pay-
ments by Emery to WTWT, there was never a "refusal " by Respondent,
much less by the WTWT trustees , to , "accept" than . Accordingly,
Teamsters Local 449 is dubious authority for Emery's claim that Respond-
ent's unfair labor practices must be remedied by "reimbursing " Emery for
its excess payments to a different fund than the one which it was bound
by contract to honor.
52 As an aside without dispositive significance , I note that Respond-
ent's actions (Mack 's threats to "make life miserable" for Emery) were
not clearly shown to have been what caused Emery to sign the Septem-
ber 30 letter of understanding . Rather , the separate statements made on
September 30 by Local 85's Dindia-that he would recommend against
his members making the move until the benefit coverage issue were re-
solved-could easily have played a more immediately "coercive" role
(i.e., have had a probable financial impact on Emery more costly than the
"excess" payments to the Local 85 plan ) in getting Emery, anxious to
staff and operate from Oakland by the following Monday, to sign that
interim agreement . Accordingly, it is not clear as it might be that Re-
spondent's (Mack's) coercive statments were what caused Emery to incur
"excess" costs I note also that the complaint does not allege either
Dindia or Local 85 as Respondent 's agent and that Local 85 is not sepa-
rately targeted by the complaint as a wrongdoer.
TEAMSTERS LOCAL 70 (EMERY WORLDWIDE) 1137
economic injury at Respondent 's hands are not frivolous,
I have not yet located a case (certainly the prosecuting
parties have not called one to my attention ) in which the
Board has chosen to award , as part of its union unfair
labor practice remedies , the employer 's costs of buying
"labor peace" during the pendency of a statutory dis-
pute, particularly one involving , as herein , conduct by a
union which , apart from involving an unfair labor prac-
tice, also involves a breach of contract. And I question
whether such an apparently unprecedented order would
not run afoul of the overall statutory scheme by involv-
ing the Board in the awarding of "breach of contract"
damages to employers which , under Section 301 (a), are
independently recoverable by them through suits in the
United States district courts . 53 It gives me considerable
pause to consider that granting "partial reimbursement"
to Emery in this case might well open the door to litigat-
ing before the Board the types of employer damage
claims for which Section 301 (and, in a different context,
Section 303) provide alternative-if not exclusive-ave-
nues of relief.
In all the circumstances, I will decline to recommend
that Respondent be ordered to pay Emery for its excess
costs.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed54
ORDER
The Respondent , Brotherhood of Teamsters & Auto
Truck Drivers , Local No. 70, a/w International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America, AFL-CIO, its officers , agents, and
representatives, shall, cease and desist from
1. Failing and refusing to bargain collectively in good
faith with Emery by repudiating the agreement it
reached on May 11 , 1987, to cover Oakland unit employ-
ees other than transferees within 24 months of retirement
with the WTWT plan, or by refusing to cooperate with
Emery in the preparation for joint signature of the neces-
sary basic contract documents , trust subscription agree-
ments, and other instruments necessary to enroll those
employees under WTWT, or by anticipatorily refusing to
sign any such documents , agreements , or instruments.
2. In any like or related manner restraining or coercing
Emery in its right under the May 11 agreement to enroll
its Oakland employees in WTWT and make payments on
their behalf into that trust.
59 Sec . 301(a) provides pertinently that "suits for 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,
without respect to the amount in controversy or . to the citizenship of
the parties ." Sec. 303(a) and (b) of the Act similarly create a separate,
"private" cause of action in the district courts for persons "injured" by a
union 's commission of "secondary boycotts" in violation of Sec.
8(b)(4)(B)
64 If no exceptions are filed as provided by Sec 102 .46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
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 pur-
poses.
And, consistent with the foregoing remedial discus-
sion, Respondent shall also take the following affirmative
action necessary to effectuate the Act's purposes:
1. Immediately , on Emery's request, assist Emery in
the preparation , completion , and signing of all docu-
ments, subscription agreements and other instruments
necessary to permit employees to be enrolled in and cov-
ered by WTWT.
2. Make Oakland unit employees whole , with interest,
for any losses they may have suffered by Respondent's
refusal to agree to have them covered under WTWT
from the date they first started working in that unit.
3. Sign and post for 60 consecutive days copies of the
specimen notice attached as "Appendix 2"55 at its offices
and other places where it does business , including in all
places where it posts notices to the employees and mem-
bers it represents , taking reasonable steps to ensure that
the notices are not altered , defaced , or covered by any
other material . Copies of said notices shall be prepared
and furnished to Respondent by the Regional Director
for Region 32, who shall also provide additional copies
to Emery for posting, if it is willing, in such places as
Emery shall deem necessary.
4. Notify the Regional Director in writing within 20
days from the date this Order what steps Respondent has
taken to comply.
es 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 Nation-
al 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."
APPENDIX 1
Respondent 's June 9 Motion for Postponement of
the Trial
On May 13, counsel for the General Counsel Jeffrey
Henze wrote to Respondent 's attorney , Kenneth Silbert,
apparently in response to a May 6 letter from Silbert
(not of record) in which Silbert had sought defferal of
the Board pursuit of the underlying issue until such time
as the matter had been dealt with by a contractual griev-
ance procedure . Speaking for the "Region ," Henze
stated that defferal would be "inappropriate ," noting that
"The employer is unwilling to defer" and that "it ap-
pears from Article G-6 of the . . . agreement that the
procedure does not provide for final and binding arbitra-
tion as a required final step." "Therefore," said Henze,
"it appears likely that litigation of the 8(b)(3) issue must
take place ." He noted in this regard that Respondent's
answer to the complaint was already overdue, and
warned that the General Counsel would move for sum-
mary judgment unless Respondent were to answer the
complaint by May 20 . Respondent answered within that
announced deadline.
On May 26, attorney Silbert wrote to the Regional Di-
rector requesting consideration of the decision not to
defer. He stated,
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As you know, the underlying grievance has been
deadlocked by the lower grievance committee and
is now ripe for submission to the National Griev-
ance Committee . As Jeffrey Henze's letter dated
May 13 points out , there is a possibility that the
hearing before the National Grievance Committee
will not result in a final and binding decision. How-
ever this does not mean that the [NGC] will not
issue a final and binding decision . . . . Given that
the internal grievance procedures may resolve this
issue, deferral is clearly appropriate.
Alternatively, attorney Silbert requested for the first time
that the June 9 hearing be postponed "to the second
week of August or sometime after that date" because of
certain litigation and vacation conflicts in June and July,
which he spelled out in some detail.
On June 1 the Regional Director issued a formal
"Order Denying Request for Postponement ." In his
order, the Regional Director noted that the Charging
Party objected to any postponement , that Respondent
had been notified in writing when the complaint and
notice of hearing issued on April 21 that "a motion to
change the date of hearing should be made within ten
(10) days from the service of the Notice of Hearing,"
that Respondent had failed to make any such request
until "more than a month after the deadline" and that
.,no claim of any supervening event was made."
Also on June 1, having been advised in the meantime
that the Regional Director would deny this postpone-
ment request , Silbert again wrote to the Regional Direc-
tor, protesting that the decision to deny his postpone-
ment request was "outrageous," and averring , as well,
that "our office is extremely shorthanded due to the
recent departure of two attorney . . . . There is simply
no other attorney available to try the case on June 9."
Regarding the denial of his deferral request, Silbert
argued that, "The contract in this case provides for .. .
a procedure, including submission of disputes to the Na-
tional Grievance Committee." He again acknowledged
that the National Grievance Committee arrangement
made it possible that the Committee might deadlock and
thereby fail to resolve the underlying issue, but he
argued that there was nevertheless a "substantial likeli-
hood that the National Grievance Committee will issue a
final and binding decision ." He suggested that, "of
course, if the National Grievance Committee deadlocks,
there is no provision for arbitration , and assertion of
Board Jurisdiction at that time would be appropriate."
When I opened the trial record , Respondent made a
limited appearance through another attorney in Silbert's
firm , Marie Rongone, who resubmitted motions to defer
or continue the case, invoking the same arguments as
those contained in Silbert 's prior letters . Rongone an-
swered forthrightly to inquiries from the bench regard-
ing the timing of "the recent departure of two attor-
neys"-seemingly the main cause of the firm 's "shorthan-
dedness." She made representations allowing a finding
that the "recent departure[s]" preceded the issuance of
the complaint . I denied the continuance motion for the
reasons set forth in the trial record . Upon reconsider-
ation, I adhere to my trial ruling , with these supplemen-
tal observations:
The litigation and other conflicts cited by attorney Sil-
bert were substantial , but those conflicts admittedly arose
from a central circumstance-understaffing in Mr. Sil-
bert's firm due to resignations and delayed replace-
ments-which was evident at the point the complaint
and notice of hearing issued . In the circumstances, coun-
sel had notice that at least a potential for conflict existed
when it first received the complaint , notice of hearing,
and an associated notice from the Regional Director
warning that trial postponement requests would be disfa-
vored if made more than 10 days after receipt of the
complaint . There remained ample time after issuance of
the complaint and associated papers for Respondent's
counsel to have anticipated the schedule conflict prob-
lem, to have avoided subsequent crowding of its calen-
dar which would conflict with this prescheduled matter,
or, if that were impossible , to have timely notified Re-
spondent of its conflicts so that Respondent might obtain
substitute counsel for this proceeding, if need be. I thus
find it unreasonable that, after the complaint 's issuance,
Respondent 's firm took none of these steps, and then
waited until May 26 , when only 8 business days re-
mained before the trial , to seek a 2-month postpone-
ment. I
' The record shows that the General Counsel had engaged in substan-
tial preparation for this trial by the point Respondent made its belated
postponement request, including by serving an extensive subpoena duces
tecum on Respondent (issued May 23, delivered May 24 ). See G C. Exh.
19.