U.S. Utilities Corp.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 480 (N.L.R.B. 1981)

1cI21'1 1r ,'.l -1Aq-I£,T A I I A if'lD [ I A IfltC A Ik AD rA I
480 1ItL31.11 Il J) INI t I L IIL
U.S. Utilities Corporation1 and International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Building Materi-
als and Construction Drivers, ocal 341. Case
6-CA-12411
January 14, 1981
DECISION AND ORDER
BY MEIMBERS JENKINS, P'NI .I LO, AND
ZIMMERMAN
On August 12, 1980, Administrative Law Judge
Sidney J. Barban issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel each filed exceptions and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, U.S. Utilities
Corporation, Monroeville, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in said recommended Order.
The iamei of Respoindelt aptpears as amended at the hearilng
2 Respondent has excepted to ccrtiain credibility findings ITilde by he
Adninistrative aw Judge It is the oard's establistcd policy not lit
overrule an adminiisrative law judge's LestIILtiol ns with respect toI credi
bility unless Ilhe clear preponderance of all of the rele'alit evidence cli
virces us that the reslutions are incorrect Standard I)ro , iCll PIodurcls
Inc., 91 NIRHB 544 (1950). enfd 188 F.2d 362 (ld Cir 19511 We hac
carcfilly examined he record arid find ino basis for resersilg his findings
I In his recormmended Order, the Adnilmistrati c aw Judge requires
Respondent ito arbitrate certain griesances, "waiving all objections based
on time linitations or the passage of lime." In conlext, this waiser of
time limits refers to tlhe linielrss of anl arhilral proceedillgsairl lid nt to
whether the unlderlying grievances were or were not tinel filed
DECISION
STAIFIMIENT OF rH1. CASEI
SIDNEY J. BARBAN, Administrative Law Judge: This
case, U.S. Utilities Corporation, was heard before me in
Pittsburgh, Pennsylvania, on January 16-19, 1980,2 upon
I he name of Respondenll ;as correctled at the hearing
O 1 Jaliar 19,. the hearirg ,s recessed to give te General Counsel
an opportutlity to see certaill do illlents in Respoldellt's possessiiiil 1
letter dated January 2. General Counsel adssedl that he had reieted
254 NLRB No. 55
a complaint issued on August 21, 1979, based on charges
filed on May 29 and July 30, 1979, filed by the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, Building Materials and
Construction Drivers, Local 341 (herein called the
Charging Party or the Union). The complaint alleges
that the above-named Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act, as
amended (herein called the Act), by (1) repudiating, fail-
ing, and refusing to apply a collective-bargaining con-
tract with the Union during its term, and (2) refusing to
recognize and bargain with the Union, upon request, as
the representative of Respondent's employees in an ap-
propriate unit.
The answer to the complaint admits that at all times
material herein the Union has been the exclusive bargain-
ing representative of Respondent's employees in the ap-
propriate unit set forth in the complaint, that the Re-
spondent and the Union were parties to a collective-bar-
gaining contract effective from May 1, 1976, to April 30,
1979, covering the unit set forth, and that the Union,
since on or about January 31, 1979, has requested, and
continues to request, Respondent to meet and bargain re-
garding a collective-bargaining agreement to succeed the
contract noted above. However, Respondent's answer, as
amended at the hearing, denies that Respondent has re-
pudiated, and failed and refused to apply the collective-
bargaining agreement between the parties on the ground
that during the times material "Respondent has not been
engaged in activities within the scope and purview of
that agreement." Respondent further answers that al-
though "Respondent does recognize the Union as exclu-
sive collective-bargaining representatives [sic], however,
Respondent is no longer involved in activities within the
scope and purview of the agreement . .. As such, Re-
spondent is under no duty whatsoever to negotiate an
agreement to succeed that which has expired." The
answer does admit that the Union is a labor organization
within the meaning of the Act.
Upon the entire record in this case, from observation
of the witnesses and their demeanor, and after consider-
ation of the briefs filed by the General Counsel and Re-
spondent, I make the following:
FINDINGS AND CONCLUSIO NS
A. Respondent's Business
Respondent, which has its offices at Monroeville,
Pennsylvania, and an installation at Springdale, Pennsyl-
vania, both located in Allegheny County, at times mate-
rial to this matter, was engaged in the removal of flyash,
cinders, and sludge from certain locations and transport-
irg them to other locations and disposal areas on behalf
of certain utilities, municipalities, and highway authori-
ties. Michael J. Peretto, Respondent's secretary-treasurer,
asserted that Respondent worked at "the disposal area
with bulldozers and heavy construction equipment, cov-
thc d utnlitils, had nlo urther evidence Ito offer. and suggested closing
the recrd letoner dated Janluary 29, Respondcnl conrcurred. By Order
dated Fl-cbrlars 5, 198(), I closed he record i this matter and set a date
for filinig bricts

, - .111 .1 - - - - L .-
.1 I I - 11 -
U.S. UTILITIES CORPORATION
ering and seeding and this type of thing," saying, "[t]he
transportation of most of these [items] was primarily an
ancillary type of thing to the general construction type
operation .... We did transmission line clearing, and
cassion drilling of power construction for transmission
towers .... " Respondent also transported heavy con-
struction equipment. In addition, in an operation that fig-
ures prominently in this matter, Respondent engaged in
stripping coal at a location identified as "the Shaw
Mine," and delivered coal to its customers.
Respondent admits that during a recent annual period,
it sold goods and/or services valued in excess of $50,000
to firms located within Pennsylvania, which are them-
selves engaged directly in interstate commerce, and con-
cedes that at all times material it has been an employer
engaged in commerce within the meaning of the Act.
Respondent has sold a number of its trucks, but it does
not appear that it has disposed of all its trucks. Though it
has not gone out of business, Respondent in the answer
to the complaint denies that at all times material to this
matter it was at that time engaged in trucking and haul-
ing services. It is admitted that Respondent continues to
bid on projects involving such work.
B. Summary of Facts and Issues
Respondent and the Union have been parties to succes-
sive bargaining agreements since at least 1968. The last
two such agreements ran from May 1973 through April
1976, and from May 1976 through April 30, 1979.
Though neither of these agreements specifically so pro-
vide, Respondent contends that the coverage of the
agreements was restricted to the geographical jurisdic-
tion contained in the Union's original charter: Allegheny,
Beaver, and part of Butler counties in Pennsylvania.
About the first week in April 1978, according to Re-
spondent's secretary-treasurer, Michael J. Peretto, Re-
spondent decided to have its drivers park their trucks for
a substantial period of time at the Shaw Mine in West-
moreland County, and deliver from there for various
customers. Respondent contends that by doing this it
thereby "domiciled" the trucks at the Shaw Mine, and,
therefore, though the drivers assigned to work at and
from the Shaw Mine continued to perform work de-
scribed in the bargaining agreement, that the agreement
did not apply to that work. Consequently, Respondent
did not apply the provisions of the bargaining agreement
to the work performed using Respondent's vehicles
parked at the Shaw Mine during this period, and did not
provide the drivers assertedly "domiciled" at the Shaw
Mine with the benefits provided by the agreement. In
fact, during this period, Respondent met with the em-
ployees and negotiated a skeleton document setting cer-
tain basic working conditions and wages for drivers at
the Shaw Mine, which Respondent denominated "Inde-
pendent Coal Haulers Agreement."
About the last of October and the first of November
1978, while Respondent continued to operate from the
Shaw Mine, several employees, Fred Cichinelli, Donald
Graham, Ronald Karpach, and James Klein, as well as
the Union, filed grievances under the agreement, alleging
that the employees had been laid off from work while
employees with less seniority were permitted to work.
The Union's grievance also claimed other failures to
honor and apply the agreement. When Respondent re-
jected those grievances, the Union sought to take them
to arbitration. Respondent refused to participate in the
selection of an arbitrator, and to arbitrate the issues, on
the asserted ground that the grievances involved work
occurring in a county outside the geographical jurisdic-
tion of the Union, and was, thus, outside the coverage of
the bargaining agreement.
Thereafter, Respondent also refused to negotiate a new
contract with the Union to succeed the agreement due to
expire at the end of April 1979, as discussed hereinafter.
The General Counsel denies that the bargaining agree-
ment between Respondent and the Union was limited by
the Union's geographical jurisdiction, or that Respondent
may determine the coverage of the contract by deciding
where to park its trucks. The General Counsel contends
that by failing and refusing to apply the bargaining
agreement during its term, by unilateral alteration of
working conditions, bypassing the Union and negotiating
directly with the employees, and by refusing to negotiate
an agreement with the Union to succeed the 1976-79
bargaining agreement, Respondent violated Section
8(a)(5) and (1) of the Act. The General Counsel, as dis-
cussed hereinafter, requests that drivers Cichinelli, Kar-
pach, Graham, and Klein be made whole for any losses
"suffered as a result of Respondent's repudiation of the
seniority provisions of the agreement . . . through the
10(b) period to November 30, 1978."
C. Tle "Domicile" Issue
1. In general
As has been noted, Respondent contends that the "do-
micile" of the trucks during the period material to the
complaint is critical to the determination of the coverage
of the bargaining agreement. The concept is rather elu-
sive, seemingly devised and defined solely by Respon-
dent for its special purposes in this situation. The term
"domicile" does not appear anywhere in the bargaining
agreement, and the few references to union jurisdiction
in the agreement, as discussed hereinafter, do not on
their face, seem to imply a geographical limitation on the
coverage of the contract. The vehicle titles issued by the
Commonwealth of Pennsylvania for each of Respon-
dent's trucks which are contained in the record list only
Respondent's home address at Monroeville for the trucks
(which presumably would be their "domicile" so far as
the Commonwealth was concerned).
Respondent's officer, Peretto, asserted that Respondent
determined "domicile" by the place the trucks were
parked at night "on a regular basis." As to what would
constitute a "regular basis," he gave the opinion that it
would have to be more than three to five nights a week,
further testifying that it would have to be a move lasting
"a month or two and we intended to keep the trucks
there." Peretto testified that if Respondent's trucks were
parked at the Shaw Mine (in Westmoreland County), Re-
spondent would not consider the bargaining contract to
apply even if the trucks were used to pick up and deliver
materials in Allegheny County (vithin the Union's geo-
481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
graphical jurisdiction), because Respondent had elected
to park the trucks in Westmoreland County. However, if
Respondent chose to park its trucks in Allegheny
County-as at Respondent's Springdale yard-the work
of the trucks would be covered by the contract even
though all of that work was performed in Westmoreland
County. Indeed, the record shows that during the period
with which we are concerned, while Respondent's trucks
were parked at the Shaw Mine, employee Vojtash, and
others, would pick up trucks at the Shaw Mine and use
them to haul cinders from the Springdale yard (in Alle-
gheny County) to nearby dumps, returning the trucks to
the Shaw Mine at night. Respondent did not apply the
bargaining agreement to that work. 3
2. The bargaining agreement
The following provisions, which appear in both the
1973-76 and 1976-79 bargaining agreements, relate di-
rectly to the coverage of those agreements:
ARTICLE I
1.1 The Employer recognizes and acknowledges
that the Union . . . is the exclusive bargaining agent
for all of the employees performing work within the
scope of this agreement ...
1.2 The term "Employee" as used in this agree-
ment shall mean any employee who performs work
for the Employer within the scope of employment
covered by this agreement in the job classifications
set forth in this agreement.
ARTICLE 11
UNION SECURITY
2.1 All present employees who are members . . .
shall remain members .... All present employees
who are not members and all employees of the
Union and all employees who are hired hereafter
for work in the classification[s specified herein,
shall become and remain members ....
ARTICLE III
HOURS OF WORK-PREMIUM TIME-
REPORT TIME-SHIFT TIME
* . . * *
3.8 . . . If Company [sic has any of their own
trucks at any given site, and there is Saturday,
Sunday or holiday work, such trucks must be
manned in accordance to the seniority list.
3 In early 1979. around February according to employee George
Guckert, his truck, then parked at the Shaw Mine, was taken to Respon-
dent's garage at Springdale (Allegheny County). For a month thereafter
it was parked at Springdale. where Gutckert regularly picked it up to
make his deliveries. According o t Exh. 1 Respondent continued to
consider Guckert "domiciled" in Westmoreland County.
3.9 Working time shall start when an employee is
instructed to report for work and does report to the
terminal, garage or job site at the appointed time.
Article XX, classifications and wage rates, provides
for wage rates for four specified job classifications, de-
scribed in terms of four different kinds of trucks driven.
So far as the record in this case shows, these are the
only types of trucks driven by Respondent's employees,
whether in Allegheny or Westmoreland Counties.
Indeed, it appears that the very same vehicles (assertedly
domiciled in Westmoreland County) which the employ-
ees drove in Westmoreland County had, assertedly, pre-
viously been domiciled and driven in Allegheny County,
sometimes by the same employees. In some cases, prob-
ably in all instances, these identical trucks were later
moved back to Allegheny County from Westmoreland.
There is evidence that Respondent also uses its vehi-
cles in building construction and heavy construction
work. The agreement makes provisions for such work.
There are only two references to the Union's geo-
graphical jurisdiction in the bargaining agreement which
the parties cite in support of their positions. In article
XIX, work assignment, in the 1976-79 agreement the fol-
lowing appears:
19.1 In the event that any dispute should arise be-
tween this Local Union and any other Teamsters
Local Union relating to jurisdiction over employees
or operations covered by this agreement, the Em-
ployer agrees to accept and comply with the deci-
sion or settlement of the Union or Unions tribunals
which have the authority to determine such dispute.
In article XXVII of the 1976-79 agreement (but not in
the prior contract) it is provided:
21. Any employee required to drive his own ve-
hicle to a job site outside the jurisdiction of Local
No. 341 will be compensated at the rate of twelve
and one-half (12-1/2) cents per mile each way. The
mileage will be computed from the Springdale Yard
and return. It will be the driver's responsibility to
notify the company of the day he drives his own
vehicle and the total number of miles he drives.
3. History and interpretation of the bargaining
agreement
(a) Prior to the 1976-79 agreement, as has been noted,
the bargaining agreement made no provision for payment
of travel expense to employees required to drive their
own vehicles to distant points where Respondent's equip-
ment was located at the jobsite. Respondent appears to
have had inconsistent practices and policies with respect
to reimbursing employees for driving their own cars in
these situations. For this reason, in the negotiations for
the latest contract, the Union insisted on a contract com-
mitment to reimburse the employees. As a result, the par-
ties agreed to the provisions of article XXVII, set forth
above.
(b) The record shows that prior to April 1978, when
Respondent sent its drivers to work at distant locations,
482
U.S. UTILITIES CORPORATION
including the Shaw Mine, outside the geographical juris-
diction of the Union, where its equipment was parked for
substantial periods of time, Respondent normally applied
the provisions of the bargaining agreement to that work,
and paid the employees the contract rates provided as
well as contributing the health, welfare, and pension
benefits required by the contract.4
(c) Peretto also gave testimony, which I consider
highly implausible, as to certain statements allegedly
made to him in 1972 or 1974, and in 1976 by a former
president of the Union, Henry Trotto, with respect to
the coverage of the bargaining agreement. His testimony
as to this, except on direct examination, tended to be
evasive, confusing, and at times contradictory. This testi-
mony does not seem to be referred to or relied on in Re-
spondent's brief, but I believe that it should be noted.
Peretto says that Trotto told him, during negotiations
for the 1976-79 agreement that "the general basis for the
contract . . . was for trucks domiciled within Allegheny,
Beaver, and parts of Butler County."5 Shortly thereafter,
however, Peretto gave the following testimony:
Q. (Mr. Greene) Could you tell me what Mr.
Trotto said in regard to the coverage of the con-
tract?
A. It's the custom of the industry.
Q. Could you tell me what Mr. Trotto said, sir?
A. I said he said nothing.
As has been noted, Respondent contends that the "do-
micile" of the trucks is dependent on Respondent's deter-
mination as to the length of time they are parked on "a
regular basis" at a particular location. Peretto testified
that "[i]n regard of the length of time to be a regular
basis, [Trotto] said nothing."
At one point, Peretto seemed to testify that because he
had assertedly "seen copies of Teamsters contracts which
cover Allegheny, Beaver and parts of Butler County as
the sole jurisdiction for 341," he assumed that this
became part of the contract. 6 Peretto agrees that Trotto
did not confirm in writing any of these interpretations of
the bargaining agreement assigned to him by Peretto.
The contract itself does not contain any such language.
Peretto also asserts that in 1972 and 1974, when work-
ing in counties outside the geographical jurisdiction of
the Union, Respondent laid off union members and hired
nonunion drivers to do the work. He says that he had
discussions with Trotto about this, and he raised "no ob-
jections." Nevertheless, Peretto says he did not have any
4 These findings are based on testimony of General Counsel's wit-
nesses, which was essentially undenied. To the extent that Peretto, in dis-
cussing the background of the travel pay provision, sought to imply that
this work was "temporary," that testimony is not credited. As considered
hereinafter, I was not impressed with the reliability of Peretto's testimo-
ny In this instance, no detail was offered to support Peretto's offhand
statement made in discussing another issue
s Peretto also asserts that he told the union representatives during ne-
gotiations for a contract to succeed the 1976 79 agreement, which Is dis-
cussed hereinafter, that Trotto had so advised him
6 Peretto's testimony in the transcript reads: "They [copies of other
Teamsters contracts] were parts of the negotiation for this colntract,
would that make it a part of this contract (sic)"
discussions with respect to using union members in such
situations.
Peretto's testimony as to his conversations with Trotto
were not directly contradicted. Nevertheless, I consider
Peretto's testimony to be so unreliable as to fall of its
own weight. I do not believe him, and I have discredited
his testimony on this issue.
(d) One further matter relating to the coverage of the
union bargaining agreement requires notice. In late 1978,
as will be considered hereinafter, when Union President
Theodore Zilch became aware, in the course of process-
ing certain grievances, that Respondent was claiming
that the bargaining agreement did not apply to employ-
ees performing work out of the Shaw Mine because it
was outside the geographical jurisdiction of the Union,
Zilch contacted Thomas Fagan, President of Teamsters
Joint Council No. 40, which has authority, in the first in-
stance, to determine issues of local union jurisdiction for
the area involved. Fagan ascertained that the Teamsters
Local Union having geographical jurisdiction over West-
moreland County, Local 30, did not dispute the applica-
tion of the Union's contract to work performed by Re-
spondent in Westmoreland County, and advised Zilch
that the Union had jurisdiction over Respondent's oper-
ations involved.- Zilch also had contact with the presi-
dent of Local 30, and received a letter from him con-
firming that Local 30 ceded jurisdiction to the union.
During the conversations between the Union and Re-
spondent concerning a new agreement and resolution of
the grievances, Respondent was informed of these facts,
but refused to accept the fact that the Union had juris-
diction over the operations involved, or that the bargain-
ing agreement applied to such operations, assertedly be-
cause Respondent was not notified by Joint Council 40,
or, as indicated in the brief, because the Joint Council
did not have authority to settle "a jurisdictional dispute"
between a local union and an employer.
4. Conclusion
Based on the above, and the record as a whole, I find
that there was not, at any time material to the complaint,
any reasonable basis for concluding that the collective-
bargaining agreement between Respondent and the
Union is limited to the geographical area over which the
Union had jurisdiction. The contract by its terms is ap-
plicable to Respondent's employees driving certain vehi-
' When Pereto indicated that it was Respondent's practice to la off
union members and hire nonunion drivers hen sorking out if Ihc
Union's jurisdiction. the General Counsel pointed otul that some uion
members s"ere used lt perform work out of the Shas, Mine in 197 Per-
etto somewhat uccrtlaily explained hat he had assumed that thcse menl
were no longer union memhbers because Rcsponlden had unilaterall re-
moved them from the checkoff wshen they went to ork at the Shals
Mine (these men, in fact, continued to pay dues directll to the Unlion)
Moreover, the record shows that Respondent actisely sulght to persuade
the union members to work at the Shaw Mine on a oliuonili basis Iii
addition, as has been noted, in the past Respludent on llurntrils osca-
sions had used uion members o ork on sites outside the Unirln' gIo-
graphical jurisdiction. under the terms of the union contract
I agan also testified that it is the custom that wherever the contracl
may be negotiated. "it's ith the undersaniding that they are [tflllecticl
for anl areai [lof Joinlt Council 4(1 that he imla) operate in " I hlaxc Io
doubt that this is the general understanding, but on this rcord I cannolllll
find that Responldent as necessarily privy to that understanding
483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cles assigned to any jobsite, without limitation. In fact,
prior to 1978, Respondent applied the bargaining agree-
ment to work performed outside the jurisdiction of the
Union. The one contract clause relied on by Respondent,
that which requires that employees be paid mileage when
assigned to work at a jobsite outside the Union's jurisdic-
tion, itself indicates that it contemplated Respondent's
employees, members of the Union, would be assigned to
work under the terms of the contract outside the geo-
graphical jurisdiction of the Union. At most, this refer-
ence to the Union's jurisdiction constituted a convenient
method of delineating Respondent's obligation to pay
mileage to its employees required to drive their own ve-
hicles to distant jobsites. Respondent's contentions would
permit it, in its sole discretion, to determine when it was
going to pay mileage (which would defeat the reason the
mileage provision was inserted in the contract in the first
instance) as well as when it was going to apply the bar-
gaining agreement, itself, by manipulating the location of
Respondent's vehicles. In the absence of much better evi-
dence than appears in the record, I would not override
the otherwise obvious language in the contract by parol
evidence.
By long-established practice, the Board does not give
effect to union jurisdiction in determining the rights of
employees to representation. See, e.g., Schreiber Trucking
Company, Inc., 148 NLRB 697 (1964), where the Board
refused to give effect to the jurisdictional claim of Team-
sters Local No. 30 to represent certain employees in
Westmoreland County,
Upon the above and the record as a whole, I find that
at all times material to this case, the collective-bargaining
agreement between the Union and Respondent was not
limited by the Union's geographical jurisdiction, and, in
fact, covered Respondent's operations in and from West-
moreland County.
D. The Alleged Unfair Labor Practices
1. The refusal to apply the bargaining agreement
(a) From the first part of April 1978, when Respon-
dent began to park most of its trucks, previously used in
Allegheny County, at the Shaw Mine, and thereafter,
Respondent refused to pay the wage rates, provide the
benefits and apply the provisions of the collective-bar-
gaining agreement to the employees using the trucks
parked at the Shaw Mine, or to the work performed by
those employees.
(b) Within 2 to 3 weeks after the employees were di-
rected to park their trucks at the Shaw Mine, Respon-
dent presented the employees with a document, which
Respondent denominated "Coal Haulers Agreement,"
providing for certain working conditions not in accor-
dance with the collective-bargaining agreement which
Respondent applied to the employees using trucks
parked at the Shaw Mine.
In the spring of 1979, employees working out of Shaw
Mine sought increases in wages, holidays, and vacations.
After meeting with them on one occasion, Respondent
gave the employees a wage increase, and issued another
"Coal Haulers Agreement," dated May 10, 1979.
(c) During the period when Respondent was parking
its trucks at the Shaw Mine, from early April 1978 well
into 1979, Respondent also laid off senior employees
while employing junior employees and newly hired driv-
ers in disregard of provisions of the bargaining agree-
ment requiring that layoffs, rehires, dispatching and as-
signment of work be made in accordance with seniority
(see art. Ill, sec. 3.8). As discussed hereinafter, four of
the senior men, Cichinelli, Klein, Graham, and Karpach,
eventually filed grievances protesting their layoffs.
The two most senior men, V. Smith and P. Large,
appear to have been continuously employed in Alleghe-
ny County until the last part of May and April 1979, re-
spectively. F. Cichinelli, third in seniority, and the union
shop steward seems to have been laid off, as he testified,
in August 1978 (except for a few hours in October). 9
James Klein, fourth in seniority, was called in to work
by Respondent after the first of April 1978, only on an
occasional basis, and last worked September 9, 1978.
Graham appears to have been laid off in April 1978
except for 2 or more weeks in June and July 1978. J.
Watson, sixth in seniority, seems to have ceased his em-
ployment with Respondent in April 1978 and is not in-
volved in this proceeding. R. Karpach, seventh in senior-
ity, seems to have been laid off in April 1978, except for
a short time in June and July 1978. It is not necessary for
the purposes of this decision to consider the remaining
employees on the seniority roster. There is no question,
as has been noted, that employees with less seniority
than the employees mentioned worked while they were
laid off.
Cichinelli, Graham, Klein, and Karpach each testified
to the effect that after the last day they worked Respon-
dent did not contact them or that they did not refuse any
offer of work made. Respondent called Helen Simon, a
secretary for Respondent, as a witness, apparently in re-
buttal. Simon testified that approximately the first week
in April 1978 she was instructed by Respondent's super-
intendent, Mario Pacific, and by Peretto, "to contact the
drivers in order of seniority," apparently to see if they
were available for work. Simon's testimony indicated
something less than a clear recollection of the event. She
did state that she did not get in touch with, nor spoke to
Graham, Klein, or Karpach, and states that Cichinelli
said he was not available for part-time work, but would
substitute for Parker Lodge if needed. To the extent
Simon's testimony is inconsistent with that of Cichinelli,
Graham, Karpach, or Klein, I credit the latter.
2. Refusal to arbitrate grievances
By written grievances dated October 29 and 31, and
November 1, 1978, J. Klein, Graham, Karpach, and Ci-
chinelli protested their layoff from work while employ-
ees with less seniority were performing work described
in the bargaining agreement for Respondent. Also in a
grievance dated November 1, 1978, Union President
Zilch protested Respondent's failure to work employees
ichihel i and employee D Graham. fifth in seniority, were offered
work at Shaw Mine, but refused it because it was not under the terms of
the Union contract. I find that they were not required to accept such an
offer and thus remained on layoff status.
484
U.S. UTILITIES CORPORATION
according to seniority, its failure to report employees
performing Teamsters work, its failure to remit "proper
funds to the welfare and pension fund," its failure to pay
travel money as required by the contract, Respondent's
continued employment of D. Wright after proper notifi-
cation that he had been suspended from membership, and
Respondent's entering "into an agreement with junior
employees over wages and benefits."
Prior to the filing of these grievances, Zilch had
sought an explanation from Respondent as to the reason
it was working junior employees while senior men were
on layoff. Respondent's secretary-treasurer, Peretto, in-
formed him that the basis for Respondent's action was
that the work being performed was outside the Union's
geographical jurisdiction. Zilch replied that it was not
Respondent's province to determine the Union's jurisdic-
tion, that this would be determined by Teamsters Joint
Counsel 40. When Respondent continued to maintain its
position that the bargaining agreement did not apply to
work assertedly "domiciled" outside of the Union's juris-
diction, the grievances noted above were filed.
As has been indicated previously, Zilch took the
Union's problem with Respondent to the Joint Council
which confirmed the application of the bargaining agree-
ment to the work involved. Local 30, which otherwise
might have claimed geographical jurisdiction over the
work, confirmed that the work belonged to the Union.
Zilch informed Peretto of these facts. Peretto refused to
budge from his position, which Respondent has steadfast-
ly maintained since.
When it received no response from Respondent to its
written grievances, the Union requested the Federal Me-
diation and Conciliation Service (FMCS) to provide a
panel of arbitrators from which the parties might select
an arbitrator, as provided by the bargaining agreement.
By letter dated December 21, 1978, FMCS provided
such a panel. Though assured by FMCS that selection of
an arbitrator did not in any way involve a decision on
the merits of the disputes (G.C. Exh. 8), Respondent re-
jected all attempts by the Union to have Respondent
select an arbitrator and proceed with the arbitration pro-
cess. Respondent's position was summed up in its coun-
sels' letter of January 8, 1979, to FMCS, as follows:
"U.S. Utilities Services Corporation objects to jurisdic-
tion on this matter as it is the position of the [Companyl
that its operations for which the contract was entered
into has ceased. It is further the [Company's] position
that it is outside the jurisdictional area of the union.1 0
By letter dated June 4, 1979, Respondent advised, finally,
that it would not agree to arbitration.
3. The negotiations
By letter dated January 31, 1979, the Union advised
Respondent, in conformity with the 1976-79 bargaining
'o At least through June 17, 1979, J. Exh. I indicates that Respondent
continued to employ two or more employees driving equipment de-
scribed in the collective-bargaining agreement Another such piece of
equipment was transferred by Respondent to a subsidiary, or affiliated
company, where it was operated by an employee presviously on Respoll-
dent's payroll As will he noted, Respondent further admitted that it
would continue to seek hauling work as it had performed in the past, but
asserted that in such event it ould subcontract the work ti, olhers
agreement, that the Union desired to modify the agree-
ment, and requested that Respondent notify the Union of
a time and place to begin negotiations. After that date, so
far as the record shows, the parties met in face-to-face
sessions only two times. The following findings as to
those meetings are based principally on the credited testi-
mony of Stanford A. Segal, counsel for the Union.
On February 3, 1979, Zilch and the Union's counsel
met with Peretto and Respondent's counsel, George
Shorall, at the latter's office. This meeting was devoted
entirely to an attempt by the Union to obtain a settle-
ment of the pending grievances referred to hereinafter,
or selection of an arbitrator to decide the grievanlces.
The arguments made were those which have been noted:
Respondent asserting that they did not have to process
or arbitrate the grievances because they involved work
which was outside the scope of the collective-bargaining
agreement "[i]n that it was in a county which [Respon-
dent's counsel] said the Union had no right to enfirce
the contract"; the Union responding that the work in-
volved was covered by the contract and Respondent had
to proceed with the grievances. At this meeting. Nwhile
preserving its position as stated, Respondent offered a
compromise settlement. This was subsequently rejected
by the employees involved, and the Union continued to
seek to have Respondent cooperate in the appointment
of an arbitrator, to no avail, as has been noted.
The second meeting occurred on May 30, 1979, in Re-
spondent's counsel's office, with the same four persons in
attendance. The Union's counsel asserted that there were
three issues to be resolved: (1) Respondent's apparent re-
fusal to negotiate a new contract, of which counsel had
been informed by Zilch, (2) the necessity to resolve the
current grievances which had been pending too long, or
select an arbitrator to hear them, and (3) to settle the
problem raised by Respondent's refusal or failure to
make contributions to the welfare and pension funds re-
quired by the bargaining contract.
With respect to the first issue, Respondent asserted
first that it "did not have to negotiate a new contract be-
cause the work the company was now involved in was
in Westmoreland and . . . the Union's jurisdiction did
not cover Westmoreland County." The Union replied,
stating that there was no such limitation in the agree-
ment, and that Respondent could point to none: that the
Union had the right to enforce the agreement wherever
Respondent was working, and that Respondent could not
determine the Union's jurisdiction; that this was an inter-
nal matter which had been resolved in the Union's favor
by the Teamsters Joint Council, by which Respondent
was bound in accordance with article XIX of the bar-
gaining agreement. Respondent asserted that they would
not accept that ruling.
Also, with respect to the Union's request that Respon-
dent negotiate a new bargaining agreement, Respondent
further said it would not negotiate, on the basis that "the
company had now terminated all of the employees who
were working as teamsters in the Westmoreland area and
485
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were about to get rid of their trucks, and . . .
they had lost a contract they had." However, when
counsel was asked if this meant Respondent was going
out of business, Respondent's counsel replied in the nega-
tive, stating that what he meant was that "we don't have
any business right now, but we will be bidding on addi-
tional business, and . . . assuming we get additional busi-
ness, we intend to subcontract the trucking work and not
use our own employees." The Union protested these as-
sertions, and the fact that it had not been notified of Re-
spondent's intent to lay off employees, dispose of its
trucks, and subcontract out the work covered by the
agreement, asserting the Union's right to negotiate these
changes in working conditions affecting the employees'
rights. Zilch further noted, in response to Respondent's
claim that Respondent had laid off all its employees, and,
thus, had no drivers, that one of Respondent's trucks, a
"low-boy" was still operating, stating that he did not be-
lieve Respondent was out of the trucking business. Per-
etto acknowledged that Zilch's information was correct,
but that the truck was now being operated by one of Re-
spondent's subsidiaries. 12
With respect to Respondent's failure to make pension
and welfare payments, Respondent asserted that this was
interconnected with the other issues. Thus, if the con-
tract did not apply to the work at Westmoreland, Re-
spondent would owe no payments for that work. How-
ever, Respondent did offer to pay contributions to the
funds, if the Union would waive backpay under the
grievances. The Union refused, asserting that the total
issue should be submitted to arbitration. Respondent
promised to give a final answer shortly on whether or
not it would arbitrate the issue. As has been noted, Re-
spondent finally advised the Union that it would not ar-
bitrate the issue.
As stated in its answer to the complaint, Respondent
continues to contend that "it is under no duty whatso-
ever to negotiate an agreement to succeed that which
has expired," in that it "is no longer involved in activi-
ties within the scope and purview of the [1976-79 bar-
gaining] agreement."
Respondent does admit that its employees performing
work covered by the 1976-79 bargaining agreement, in-
cluding driving single-axle dump trucks, tandem axle
trucks, dump trailers-tri-axle (single axle tractor), and
Euclid or equivalent (tandem tractor) tri-axle trailers
constitute a unit appropriate for collective-bargaining
within the meaning of Section 9(b) of the Act, and that
the Union, by virtue of Section 9(a) of the Act, at all
" In fact. as has been noted, the record shows that Respondent did
not dispose of all of its trucks and, at the time of this meeting, Respon-
dent still employed drivers doing Teamsters work.
a According to the credited testimony of Vernon Smith, Peretto told
him that Respondent would not sign another contract with the Union,
and offered to continue to employ him on the lowboy, which he regular-
ly drove, on the basis that he withdraw from membership in the Union
and join Teamsters Local 109. Smith refused, and after being laid off,
later saw the lowboy being operated by an employee junior to him in
seniority Peretto asserts that he offered Smith a job of driving the
lowboy as an employee of Chambers Development Corporation, of
which Peretto is also secretary-treasurer, and which had a contract with
Local 109 The testimony of Frank McIntyre, at some time Respondent's
superintendent, also indicates close ties between Respondent and Cham-
bers.
times material to the complaint, has been, and is now, the
exclusive representative of the employees in that appro-
priate unit for the purposes of collective bargaining.
4. Conclusions
Without question, Respondent unilaterally, and over
the protests of the Union (when it became aware of the
situation), refused to abide by and apply its bargaining
agreement with the Union to its operations in Westmore-
land County in 1978 and 1979. Respondent's contention
that the agreement did not cover those operations has
previously been held to be without merit. By such action
since November 30, 1978,'3 Respondent violated Section
8(a)(5) and (1) of the Act. In particular, Respondent vio-
lated Section 8(a)(5) and (1) by failing and refusing to
make contributions to the Health and Welfare and Pen-
sion Funds, and to provide the wages and other benefits
required by the agreement during the 10(b) period. See
Douglas Lantz d/b/a and or a/k/a Alcan Forwarding
Company, et al., 235 NLRB 994 (1978); Tony De Clue, an
Individual d/b/a Liberty Cleaners, et al., 227 NLRB 1296
(1977).
Prior to November 30, 1978, Respondent laid off four
senior employees while continuing to use newly hired
and junior employees to do work covered by the agree-
ment. These layoffs continued well into 1979. In late Oc-
tober and on the first of November 1978, the four em-
ployees and the Union filed grievances protesting this
action, the Union's grievance also protesting other fail-
ures to honor and apply the bargaining agreement. Re-
spondent rejected these grievances, and, in May and
June 1979, refused to arbitrate the grievances. Respon-
dent's refusal, within the 10(b) period, to process and ar-
bitrate these grievances, as required by the contract, vio-
lated Section 8(a)(5) and (1) of the Act. Independent
Stave Company Diversified Industries Division, 233 NLRB
1202 (1979); Pan-Abode, Inc., 222 NLRB 313 (1976); R.
L. Sweet Lumber Company, 207 NLRB 529 (1973).
However, the layoff of the four senior employees prior
to November 30, 1978, although it continued into the
10(b) period, presents a more difficult problem. The
General Counsel admits that he did not allege the layoff
of the four senior employees as a violation of the Act be-
cause it occurred before the cutoff date. Nor did the
General Counsel allege, or specifically make clear that
he is claiming that Respondent took any action within
the 10(b) period which violated the seniority provisions
of the bargaining agreement. Therefore, though these
layoffs, in disregard of the agreement, constituted a uni-
lateral alteration in the terms of that agreement and thus
a refusal to bargain, see Pan-Abode, Inc., supra at 314, 1
cannot here find Respondent's refusal to abide by the se-
niority provisions of the agreement to be a violation of
the Act.
Within the 10(b) period, Respondent not only refused
to honor and apply the bargaining agreement, but en-
gaged in direct dealing with employees working in West-
:" The -month statute of limitations contained in Sec 10(b) of the Act
(herein referred to as the 1()b) period) prevents any action of Respon-
dent occurring before November 30 from being held to be in violation of
the Act.
486
U.S. UTILITIES CORPORATION
moreland County, in disregard of the Union's representa-
tive status, negotiating with those employees terms and
conditions of employment, separate and different from
the applicable bargaining agreement. By such actions Re-
spondent further violated Section 8(a)(5) and (1) of the
Act. The fact that the employees may have agreed, or
seemed to agree to those terms does not excuse Respon-
dent for, thus, altering employment conditions and fur-
ther undermining the Union's representative status. Medo
Photo Supply Corporation v. N.L.R.B., 321 U.S. 678
(1944).
Respondent's primary defense to the above violations
is, as noted, that the bargaining contract did not apply to
the operations involved. This has previously been consid-
ered and rejected. Respondent also seems to argue that it
bargained in good faith with the Union about these mat-
ters and that it should not be found in violation because
the Union would not accept the compromises offered."4
Respondent here mistakes the situation. It was at all
times obligated to perform fully as required by the agree-
ment. These were the only "demands" made by the
Union. The Union had no obligation to accept Respon-
dent's compromise offers to do less than the bargaining
agreement required. In the last analysis, the Union de-
sired that all the issues be decided by arbitration, as pro-
vided by the agreement. This Respondent refused.
Finally, it is undisputed that Respondent refused to
bargain with the Union for a bargaining agreement to
succeed the 1976-79 agreement. This is not discussed in
Respondent's brief beyond the assertion that Respondent
did meet, bargain, and make compromises on the griev-
ances. At the last meeting between the parties on a new
contract, however, Respondent rested its refusal to nego-
tiate a new agreement on its assertions that its only oper-
ations at the time were outside the Union's jurisdiction,
and that it was going to sell its trucks, and, though it in-
tended to seek new hauling business, it intended to per-
form this work not with union labor, but intended to
subcontract it out. However, as has been noted, at the
time of Respondent's refusal to negotiate, it was perform-
ing operations within the scope and coverage of the bar-
gaining agreement, and, in fact, within the assigned juris-
diction of the Union, as Respondent was informed. By
reason of the current bargaining agreement the Union
continued to be the representative of the employees in
the appropriate unit. Indeed, Respondent admits the
Union's representative status within the meaning of the
Act. So far as this record shows, Respondent has not
gone out of business or sold all its trucks. Under all of
the circumstances, Respondent was obligated to continue
to recognize and bargain with the Union, and Respon-
dent's failure and refusal to bargain for a new bargaining
agreement to succeed the 1976-79 agreement violated
Section 8(a)(5) and () of the Act.
14 Respondent argues at page I of its brief: "The real complaint of
Local 341 is not a failure to bargain by [Respondent], because in fact [Re-
spondent] did bargain, but rather Local 341 seems to feel it has been
wronged by [Respondent's) desire not to capitulate to the demands put
forward by Mr. Zilch. This desire not to capitulate is not actionable by
Local 341 "
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Sections 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All employees of Respondent whose work was cov-
ered by the collective-bargaining agreement between Re-
spondent and the Union effective from May 1, 1976, to
April 30, 1979, including driving single axle dump
trucks, tandem axle trucks, dump trailers-tri-axle (single
axle tractor), and Euclid or equivalent (tandem tractor)
tri-axle trailers constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. At all times material herein, the Union has been and
continues to be the exclusive representative of the em-
ployees in the aforesaid appropriate unit for the purposes
of collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing and failing to abide by and apply its col-
lective-bargaining agreement with the Union at Respon-
dent's operations in Westmoreland County, Pennsylva-
nia, or areas over which Respondent did not consider
that the Union had jurisdiction, by negotiating directly
with its employees for terms and conditions of employ-
ment for its operations in those areas, by unilaterally, and
without the agreement of the Union, establishing terms
and conditions of employment for those operations, by
refusing and failing to contribute to the Health and Wel-
fare and Pension funds, or provide other benefits re-
quired by the bargaining agreement for employees en-
gaged in such operations, by refusing and failing to apply
the grievance procedure provided in the bargaining con-
tract to such operations and to arbitrate grievances aris-
ing out of Respondent's failure to apply the agreement to
such operations, and by refusing to negotiate in good
faith for a bargaining agreement to succeed the 1976-79
bargaining contract, all since November 30, 1978, Re-
spondent engaged in unfair labor practices in violation of
Sections 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
and is engaging in unfair labor practices in violation of
Section 8(a)(5) and (1) of the Act, it will be recommend-
ed that Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act.
The General Counsel urges, in particular, that Respon-
dent be ordered (1) to give retroactive effect back to No-
vember 30, 1978, to the 1976-79 bargaining agreement,
including making reimbursement to the Health and Wel-
fare and Pension Funds for the amounts required by the
agreement, and making whole the employees for losses
suffered by reason of Respondent's failure to abide by
and give effect to that agreement; (2) to make whole,
back to November 30, 1978, four employees, Cichinelli,
Graham, Klein, and Karpach, for losses suffered as a
result of Respondent's failure and refusal to apply the se-
487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
niority provisions of that agreement; (3) to bargain with
the Union with respect to the effects of Respondent's de-
cision to curtail its operations and contract out work
covered by the 1976-79 agreement; and (4) to establish a
preferential recall list of employees in the appropriate
unit in accordance with seniority and bargain as to its
implementation.
The General Counsel's suggestion that the four named
employees be made whole for Respondent's failure to
employ them in accordance with the seniority provisions
of the agreement raises a most difficult issue. It would
appear that under the terms of the bargaining agreement,
the four men should not have been laid off. But, as has
been noted, these layoffs occurred outside the 10(b)
period and, thus, may not be found to have violated the
Act. The General Counsel points to no action of Respon-
dent with respect to these men during the 10(b) period
which he asserts violated the Act. He does refer, in his
statement of facts, to new employees hired during the
10(b) period to do work that these four presumably
could have done. However, since it was not alleged in
the pleadings, or suggested at the hearing, or argued in
the General Counsel's brief that Respondent violated the
Act during the 10(b) period by failing to recall these
men, instead of hiring new employees, I am not disposed
to consider such a theory here. There remains only the
fact that these four men continued to be laid off during
the 10(b) period while junior employees worked. But
these facts will not support an order to make whole. See
Olympic Steamship Co., Inc., d/b/a Salmon Terminal Divi-
sion, 233 NLRB 1178 (1977).
Nevertheless, I have given consideration to the fact
that reimbursement to these men would be an appropri-
ate remedy for Respondent's refusal during the 10(b)
period to arbitrate their claims that they were laid off in
violation of the bargaining agreement. However, I am
convinced that an order to Respondent to speedily arbi-
trate these grievances, waiving any and all objections it
might have based on time limitations, would be a more
effective remedy, since the arbitrator, if he (or she)
found a violation of the agreement, could order a
remedy effective back to the date of the violation of the
agreement.
Likewise, Respondent's failure to make the contribu-
tions to the Health and Welfare and the Pension Funds,
and the failure to pay travel money to the employees as
required by the agreement, all of which were protested
in the Union's grievance dated November 1, 1978, must
similarly be arbitrated, and it will be recommended that
Respondent also be ordered to arbitrate the issues raised
by that grievance, waiving any and all objections based
on time limitations or the passage of time.
In each case (involving the grievances of the four em-
ployees and the Union) it will be ordered that Respon-
dent cooperate in the processing of the arbitration pro-
ceedings and furnish, upon request, all documents and in-
formation reasonably related to the issues to be arbitrat-
ed.
It will be recommended that the Board retain jurisdic-
tion over this case in order to reconsider the remedy set
forth and provide further appropriate affirmative remedi-
al provisions should those specified prove ineffective.
See, e.g., Local 485, International Union of Electrical,
Radio & Machine Workers, AFL-CIO (Automotive Plating
Corp.), 170 NLRB 1234 (1968).
It will further be recommended that Respondent be or-
dered to honor and give effect to the 1976-79 bargaining
agreement retroactively to November 30, 1978, includ-
ing, to the extent that the employees suffered losses not
encompassed within the grievances heretofore filed, an
order that Respondent make whole those employees who
suffered losses by reason of Respondent's failure to apply
the bargaining agreement during the 10(b) period, with
interest thereon computed in accordance with the poli-
cies set forth in Florida Steel Corporation, 231 NLRB 651
(1977).15
It will further be recommended that the Respondent
be ordered to do each of the following: (1) Recognize
and, upon request, bargain in good faith with the Union
as the exclusive representative of the employees in the
appropriate unit with respect to the wages, hours, and
other terms and conditions of employment of such em-
ployees, and if an agreement is reached embody it in a
signed agreement; (2) bargain with the Union, upon re-
quest, with respect to any decision to curtail or subcon-
tract the work within the scope of the appropriate unit
and the effects of such decision on the employees in such
unit; (3) withdraw, cancel, and annul the so-called Coal
Haulers Agreement, or any other agreement or an-
nouncement of terms or conditions of employment in the
appropriate unit not fully negotiated with the Union,
except that such action shall not withdraw any benefits
heretofore conferred, unless agreed to by the Union.
I have considered the General Counsel's request that
Respondent be ordered to establish a preferential hiring
list for recall of employees. For reasons analagous to
those discussed in respect to remedies for the four em-
ployees laid off outside the 10(b) period, this type of
remedy seems inappropriate. Respondent will be ordered
to implement the last bargaining agreement, and to bar-
gain in good faith with respect to terms and conditions
of employment in the appropriate unit. In normal cir-
cumstances an employer is not free to unilaterally change
working conditions, including the application of seniority
rules without bargaining the issues out with the bargain-
ing representative. These seem to me to afford the em-
ployees adequate protection in their rights under the
Act, and to remedy the violations found herein.
Because Respondent's conduct evidences a complete
disregard for collective bargaining and the purposes of
the Act, I shall recommend that Respondent be ordered
not to interfere with the employees' exercise of rights
under the Act in any manner.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
'" See, generally, [viv Plumbing and Htealing Co., 138 NLRB 716
(Ihf2)
48X
U.S. UTILITIES CORPORATION
ORDER i'
The Respondent, U.S. Utilities Corporation, Monroe-
ville, Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing or failing to honor, abide by and apply a
collective-bargaining agreement in effect between Re-
spondent and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Building Materials and Construction Drivers, Local 341,
the Union herein, or any other labor organization.
(b) Dealing or negotiating directly with its employees
in the appropriate unit set forth below concerning their
wages, hours, or other terms or conditions of employ-
ment in derogation of the status of the Union as the ex-
clusive bargaining representative of such employees.
(c) Unilaterally establishing or changing working con-
ditions of employees in the appropriate unit set forth
below, without bargaining with the exclusive representa-
tive of the employees in the appropriate unit.
(d) Refusing and failing to provide wages and benefits,
or to contribute to Health and Welfare and Pension
Funds as required by a collective-bargaining agreement
with the Union or any other labor organization repre-
senting the appropriate unit set forth, or refusing and
failing to abide by and comply with the grievance and
arbitration provisions in such collective-bargaining agree-
ment.
(e) Refusing and failing to negotiate in good faith with
the Union, or any other labor organization representing
the appropriate unit set forth with respect to rates of
pay, wages, hours of employment, or other terms and
conditions of employment for such appropriate unit.
The appropriate unit is all employees of Respondent
performing work covered by the collective-bargaining
agreement between Respondent and the Union effective
from May 1, 1976, to April 30, 1979, including driving
single axle dump trucks, tandem axle trucks, dump trail-
ers-tri-axle (single axle tractor), and Euclid or equivalent
(tandem tractor) tri-axle trailers.
(f) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed in Section 7 of the National Labor Relations Act, as
amended.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request, bargain with the Union as the exclu-
sive bargaining representative of all the employees in the
appropriate unit set forth above concerning rates of pay,
hours of work, and other terms and conditions of em-
ployment, including any decision of Respondent to cur-
tail operations in the appropriate unit and the effect of
such decision on the employees, and also including the
seniority rights of employees on layoff, and embody any
understanding reached in a signed document.
Id In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(b) Upon request, cooperate with the Union, in accor-
dance with the provisions set forth in the section herein-
above entitled "The Remedy," in submitting the issues in
the grievances filed by Fred Cichinelli, Donald Graham,
James Klein, Robert Karpach, and the Union on October
29, 31 and November 1, 1978, to arbitration in accor-
dance with the grievance procedure in the collective-bar-
gaining agreement between Respondent and the Union
effective from May 1, 1976, to April 30, 1979, referred to
hereinafter as "the agreement," and speedily arbitrate
such grievances, that are not settled with the Union,
waiving all objections based on time limitations or the
passage of time, and comply with the results of the arbi-
tration award.
(c) Honor and give effect to "the agreement" retroac-
tively to November 30, 1978, including all rights of the
Union and the employees thereunder, and make whole
the employees in the appropriate unit for any losses suf-
fered by Respondent's failure and refusal to honor and
abide by the requirements of "the agreement," with in-
terest thereon, as provided in the section hereinabove en-
titled "The Remedy."
(d) Cancel, annul, and withdraw the so-called Coal
Haulers Agreement, and any other agreement, announce-
ment, or understanding setting terms and conditions of
employment in the appropriate unit made without the
agreement or consent of the Union, except that no bene-
fit previously given employees shall be withdrawn ith-
out the consent of the Union.
(e) Post at its operations at Monroeville and Spring-
dale, Pennsylvania, and mail to each employee employed
in the appropriate unit from March 4, 1978, to Jul 1,
1979, at his last known address, signed copies of the at-
tached notice marked "Appendix." 17 Copies of said
notice, on forms provided by the Regional Director for
Region 6, after being duly signed by Respondent's autho-
rized representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that the notices are not altered. de-
faced, or covered by any other material.
(f) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, vwhat
steps Respondent has taken to comply herewith.
Jurisdiction over this matter is hereby retained for the
purposes indicated in the section hereinabove entitled
"The Remedy."
7 In the evenl that this Order is enforced h a Judgment .,t the
United States Court of Appeals, the words in the ntice reading "l'oted
by Order of the National I.abor RelatLonr Iloard" shall read "'l(sted l'ur-
suant to a Judgment of the United States Court 4f Appeals Enforcing an
Order of the National Labor Relations Board "
489
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NoTricE To EMPLOYEES
POST ED BY ORDER OF IHE
NATIONAI. LABOR REIATIONS BOARD
An Agency of the United States Government
WI Will. NOT refuse to fail to bargain in good
faith with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Building Materials and Construction Drivers,
Local 341, or any other labor organization repre-
senting the employees in the appropriate unit set
forth below with respect to wages, hours, or other
terms and conditions of employment.
WE WII.L NOT deal or negotiate directly with em-
ployees in the appropriate unit about wages, hours,
other terms and conditions of employment, or uni-
laterally established such conditions, in derogation
of the bargaining representative of the appropriate
unit set forth below.
WE Wll.l. NOT fail to pay any wage rates or fail
to provide any benefits, or otherwise fail or refuse
to honor and abide any provision of a collective-
bargaining contract with the Union in the appropri-
ate unit set forth below.
WE WllE. NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed by the National Labor Rela-
tions Act, as amended.
WE WIl., upon request, bargain with the Union
as the exclusive representative of all the employees
in the appropriate unit with respect to their condi-
tions of employment-including any company deci-
sion to curtail operations in the appropriate unit and
the effect of such decision on the employees, and
also including the seniority rights of employees on
layoff-and WE WILL. embody any understanding
reached in a signed document.
WE wii.l. cooperate with the Union in submitting
to arbitration the grievances of Fred Cichinelli,
Donald Graham, James Klein, Robert Karpach, and
the Union about their layoffs and the failure of the
Company to honor and comply with the collective-
bargaininig agreement between the Company and
the Union, and we will comply with the arbitration
award.
WE WIL honor and give effect, retroactively to
November 30, 1978, to the terms and provisions of
the bargaining agreement between the Company
and the Union effective May 1, 1976, to April 30,
1979, including making whole the employees who
suffered losses as a result of the Company's failure
to honor and give effect to that agreement, as or-
dered by the National Labor Relations Board.
WE WILL. cancel, annul, and withdraw the so-call
"Coal Haulers Agreement," and any other agree-
ment, announcement or understanding setting condi-
tions of employment in the appropriate unit made
without the agreement of the Union, but no benefit
previously granted the employees shall be taken
away without the consent of the Union. The appro-
priate unit is:
All employees of the company performing work
covered by the bargaining agreement between
the company and the Union, effective from May
1, 1976, to April 30, 1979, including driving
single axle dump trucks, tanden axle trucks, dump
trailers-tri-axle (single axle tractor) and Euclid or
equivalent (tandem tractor) tri-axle trailers.
U.S. UTILITIES CORPORATION
490