Bristol Consolidators, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1978

239 N.L.R.B. 602 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bristol Consolidators, Inc., and Richard A. Rinehart
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, General
Teamsters Union Local No. 564 and Richard A.
Rinehart. Cases 6-CA-10307 and 6-CB-4064
December 6, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On June 14, 1978, Administrative Law Judge Mel-
vin J. Welles issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his remedy' and recommended Order, as
modified herein.2
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, as modified
below, and hereby orders that the Respondents, Bris-
tol Consolidators, Inc., Greenville, Pennsylvania,
and International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Gen-
eral Teamsters Union Local No. 564, shall take the
action set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph B, I, (c):
"In any like or related manner restraining or
coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act."
2. Substitute the attached Appendix B for that of
the Administrative Law Judge.
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT act as the collective-bargaining
representative of the employees of Bristol Con-
solidators, Inc., unless and until we have been
certified by the National Labor Relations Board
as the exclusive bargaining representative of
such employees.
WE WILL NOr give any force or effect to our
contract with Bristol Consolidators, Inc., execu-
ted on December 14, 1977, or to any modifica-
tion, extension, renewal, or supplement thereto.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the
Act.
WE WIL. jointly and severally with Bristol
Consolidators, Inc., reimburse their present and
former employees, except those who joined us
prior to their employment by the Company at its
Greenville, Pennsylvania, warehouse, for any in-
itiation fees, dues, or other moneys paid or with-
held from them pursuant to the aforesaid agree-
ment or any agreement superseding it.
INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, GENERAL TEAMSTERS
UNION LOCAL No. 564
DECISION
SAIFEMENT OF THE CASE
MELVIN J WELLES. Administrative Law Judge: This case
was heard at Mercer, Pennsylvania, on December 8, 1977,
based on charges filed June 14, 1977, and amended August
25, 1977, and a complaint issued August 26, 1977, alleging
that Respondent Company violated Section 8(a)(1), (2),
and (3) and Respondent Union violated Section 8(b)(1)(A)
and (2) of the Act. The General Counsel and Respondent
Company have filed briefs.
Upon the entire record in the case, including my obser-
vation of the witnesses, and upon consideration of the
briefs, I make the following:
FINDINGS OF FACT
See Isis Plumbing & Heating Co., 138 NLRB 716 (1962) for rationale on
interest payments.
2 In par. B,I. of his recommended Order, the Administrative Lawss Judge
inadvertently failed to include the narrow cease-and-desist language "in an)
like or related manner" which the Board traditionally provides in cases
involving 8(aXI) violations. We shall modify the recommended Order and
notice accordingly.
1. THE BUSINESS OF IHE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
Respondent Employer is a Pennsylvania corporation,
with its principal office in Pittsburgh, Pennsylvania, and a
602
BRISTOL CONSOLIDATORS. INC.
warehouse facility at Greenville, Pennsylvania, where it is
engaged in the business of transporting merchanidse for
G. C. Murphy Co. During the 12-month period prior to
issuance of the complaint herein, the Company performed
services valued in excess of $50,000 for G. C. Murphy
Company; during the same period, G. C. Murphy received
directly from outside the Commonwealth of Pennsylvania
goods valued in excess of $50,000 and sold products valued
in excess of $500,000. I find, as the Company admits, that
it is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. Respondent Union is, as
it admits, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The facts of this case are not in dispute. The Company
operated a warehousing facility at Bristol, Pennsylvania,
until mid-December 1976. At that location it received bulk
merchandise and then, through another company, J & S,'
also owned by John Ghaznavi, president and owner of
Bristol Consolidators, delivered the merchandise to various
retail stores. It serviced J. C. Penney and Thrift Drugs.
The Company had a contract with Local 470 for its Bristol
warehouse which does not cover any drivers. The contract,
which had been submitted to and approved by the Eastern
Conference of Teamsters before it became "binding," con-
tains a provision to the effect that provisions of the Phila-
delphia supplement to the National Master Freight Agree-
ment were incorporated by reference.2 A letter, referred to
by several witnesses as an "addendum," was written by
Executive Director of Motor Transport Labor Relations
Joseph McCann, on August 12, 1974, and addressed to the
Company and Local 470, indicating the agreement of the
parties that the Company would notify Local 470 of any
possible closing of the Bristol warehouse, that the Compa-
ny would afford first opportunity to transfer to any new
warehouse opened in the geographical area of the Eastern
Conference of Teamsters to Bristol employees, and that
Local 470 would be the bargaining representative of any
such newly opened warehouse, "subject ... to any appro-
priate jurisdictional award by any body having authority
over such union jurisdiction."
In August 1976, business at Bristol dropped off consider-
ably. As a result, President Ghaznavi sought new business.
He was told by G. C. Murphy Co. that he would get
freight from them if he relocated to Greenville, Pennsylva-
nia. Ghaznavi notified his employees that he would be re-
locating to Greenville, and that he would take any employ-
ee there who wanted to move. Some of the employees
indicated their desire to do so. Ghaznavi also notified the
Union of these plans. He spoke with the cosecretary of the
IJ & S employed drivers; Bristol Consolidators did not. J & S was under
contract at its Pennsylvania location (this Compan) also operated at several
other locations in various States) with Local 470 of the Teamsters.
This latter contract provides for various grievance procedures and re-
quires that transfers of operations be approved by a Conference Area Com-
mittee.
Eastern Conference of Teamsters Grievance Committee,
Hutchinson (apparently an employer representative on
that committee), about his plans, and Hutchinson told
Ghaznavi that he had to negotiate with any Teamsters lo-
cal that had jurisdiction in the location he was selecting.
On November 11, 1976, Ghaznavi met with Charles
Mervine, then business agent of Teamsters Local 564, the
Respondent Union here. Ghaznavi and Mervine discussed
"terms" of a contract, including changes from the Local
470 contract then in force to meet "local conditions." A
few days later, on November 14 or 15, Mervine told Ghaz-
navi he should "go ahead and have the terms that have
been negotiated . . . printed up as a contract." Some time
in December 1976, a contract was executed between the
Company and Local 564, effective January 2, 1977, and
running to January 2, 1980. This contract contained a 61-
day union-security provision.3
In the middle of December 1976, operations at Bristol
closed. The Company moved all equipment, furniture, etc.,
to Greenville and also purchased new equipment. It did
not actually begin operations at Greenville, because of
complications with beginning work for G. C. Murphy, un-
til about January 17. Early in January some employees
from Bristol had reported to Greenville but left, telling
Ghaznavi they could not wait and no longer wanted em-
ployment. As a result, no former Bristol employee worked
for the Company at Greenville after operations began.
Among the all new employee staff, hired by new Company
Manager Cagiano, there were at first only three warehouse-
men. About the end of January, more warehousemen, as
well as drivers, were hired, and by the time of the hearing
in the instant case, there were about 25 warehousemen, II
drivers, 3 clericals, and a maintenance man employed.
Both Company Manager Cagiano and Union Business
Agent Mervine testified that the new employees were told
they were obligated to join Local 564 after 61 days. Al-
though not all employees joined Local 564 and there was
never any request for an employee's termination as a result
of his not joining, many employees did join, and some exe-
cuted dues checkoff authorizations. After the complaint
herein was issued, Local 564 stopped collecting dues on the
advice of Eastern Conference of Teamsters officials.
B. Discussion
1. Contentions of the parties
The General Counsel contends that the execution of the
contract containing a union-security clause between Re-
spondent Company and Respondent Union on November
14 or 15, covering Greenville, Pennsylvania, warehouse-
men and truckdrivers, when Local 564 did not represent a
majority of the Company's employees at Greenville, which
had not yet begun to operate, violated Section 8(a)(1), (2),
and (3) of the Act and that the Union violated Section
8(b)(1)(A) and (2). Respondent Company 4 contends, in
defense, that it "did merely that which the labor agree-
Unlike the previous contract with Local 470. the new contract with
Local 564 covered Iruckdnsers as well as wvarehousemen
4Respondent Union did not file a brief hbut denied. In its answer toi the
complaint. hasing sviated the Act in an, way
6(13
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments that it had entered into provided," i.e., that it had a
continuing contract with Local 470 and the Eastern Con-
ference of Teamsters, terms of which provided for a contin-
uing bargaining relationship with an appropriate local of
the Teamsters, for any newly opened operation within the
Eastern Conference's jurisdiction. As a predicate to the
foregoing contention, the Company asserts that its move to
Greenville "was merely a relocation of an existing facility."
To bolster this contention, the Company adverts to the
facts that all equipment was moved from Bristol to Green-
ville and that all employees at Bristol were offered the op-
portunity to transfer to Greenville.
The Company further contends that it had a statutory
obligation to bargain about the "relocation" of its ware-
house facilities. Had it "attempted to avoid bargaining
with the Union pursuant to its agreement, when it relocat-
ed its operations to Greenville, it would have been subject
to an unfair labor practice based on a repudiation of those
agreements and an attempted avoidance of the bargaining
relationship." Also, asserts the Company, when Ghaznavi
and Mervine "negotiated" the new agreement, the Compa-
ny was operating under the assumption that, at least initial-
ly, Greenville would be manned by transferees from Bristol
and that only "through a quirk of fate" did this not eventu-
ate. As a corollary to this argument, the Company asserts
that some of the initial work force had transferred from
other Teamster locals and that the General Counsel did
not meet his burden of showing that "such transferees did
not constitute a majority of the work force." I reject this
latter argument out of hand, for the fact that some new
employees may have been members of other locals at other
employers would in no event serve to indicate their desires
for union representation at the Greenville location of this
company. Finally, the Company argues, alternatively, that
the Greenville operation "constituted an accretion to the
existing bargaining unit."
2. Conclusions
Most of Respondent Company's arguments are well
founded in law but founder on the facts of this case. It is
true, of course, that a company about to "relocate," 5 and
possessed of a contract with a union containing clauses
such as the Company's contract did, is in something of a
dilemma. At a minimum it is obligated to consult and bar-
gain with the incumbent bargaining representative con-
cerning the relocation and its consequences and violates
Section 8(aX5) of the Act if it refrains from doing so. I
have little doubt but that this Respondent was in good
faith in believing its obligations extended to the point of
negotiating a new agreement with a constituent member,
Local 564, of the Eastern Conference of Teamsters. Good
faith alone, unfortunately, is not a defense in situations of
this kind. It is not a defense to recognize a minority union,
even in the belief that it is or would be a majority union,
International Ladies' Garment Workers Union, AFL-CIO
I am not convinced that the term "relocate" is a "word of art" and, in
any event, use it here merely to show that the Company was moving from
one location in Pennsylvania to another, a literal definition of the term
regardless of whether the employees, or some of them, did or might have
moved along with the Company.
[Bernard-Altmann Texas Corp.] v. N.LR.B., 366 U.S. 731,
736 (1961). It is not a defense that the Company may have
believed that the Greenville facility was an "accretion" to
the Bristol facility, if it in fact was not. And it is not a
defense that the Company may have relied upon advice
from officials of an employer association or the Eastern
Conference of Teamsters in negotiating and executing the
new agreement.
Thus, it is a fact that the new contract was executed
before a single employee was hired for Greenville. It is also
a fact that no employee from Bristol ever began work at
Greenville. 6 These facts alone suffice to establish a prima
facie case under Bernard-Alhmann, supra.
The Company's actions in this case would be much more
difficult to assess vis-a-vis the Act's unfair labor practice
provisions had it relocated only its warehousing operations
and had it continued to recognize Local 470 at the new
location for the warehousemen. I suspect that under Board
law, as illustrated by cases such as General Cinema Corpo-
ration and Its Wholly Owned Subsidiary, Gentilly Woods
Cinema, Inc., 214 NLRB 1074 (1974), enfd. in relevant part
526 F.2d 427 (5th Cir. 1976), and Hudson Berlind Corpora-
tion, 203 NLRB 421 (1973), enfd. 494 F.2d 1200 (2d Cir.
1976), the Company would have violated the Act even in
that hypothetical situation. But here-the contract being
with a different union, albeit a constituent member of the
Eastern Conference of Teamsters, and covering a different
unit, for it includes truckdrivers--even the surface appeal
of a company continuing to recognize an incumbent for
the same unit at a new location is lacking. These critical
differences between the hypothetical situation posed above
and the facts here also serve to make unavailing the de-
fenses advanced by Respondent Company and to render
its reliance on various Board and court cases misplaced.
Thus, the First Circuit's decision in N.L.R B. v. Die Sup-
ply Corporation, 393 F.2d 462 (Ist Cir. 1969), involved a
move of only 4 miles and was preceded by the company's
refusal to bargain with an incumbent union about the
move and its effects, including a deliberate concealment by
the company of its plans to move. Furthermore, the court
agreed with the Board that the operations at the two loca-
tions "were substantially the same." Similarly, in The Coop-
er Thermometer Company, 160 NLRB 1902 (1966), enfd. in
relevant part 376 F.2d 684 (2d Cir. 1967), the company had
first unlawfully refused to bargain about a contemplated
move, a majority of employees at the old location sought to
transfer to the new one, and the new plant was "no more
than a continuance" of the old plant (id. at 1915). All other
cases cited by Respondent are equally distinguishable from
the instant situation. Some involved "runaway" shops, with
the move being specifically for the purpose of avoiding the
obligation to bargain; others were similar to cases such as
Die Supply and Cooper Thermometer; another involved the
subcontracting of unit work without bargaining.
The fact that the addendum to the contract between Re-
spondent Company and Local 470 provided that any newly
opened warehouse would be represented by Local 470, or
any other local with jurisdiction over any such new loca-
6 Ghaznavi's own testimony was that only a few of the Bnstol employees
evinced an) real interest in transferring to Greenville.
604
BRISTOL CONSOLIDATORS, INC.
tion, also provides no defense to Respondent Company's
recognition of Respondent Local 564. Although there is
nothing invalid per se about such clauses, the Board has
made clear that their implementation is only lawful when
"the employees affected are not denied their right to have a
say in the selection of their bargaining representative."
Houston Division of the Kroger Co., 219 NLRB 388, 399
(1975). See also Woolwich, Inc., 185 NLRB 783, 784 (1970);
Schreiber Trucking Companv. Inc., 148 NLRB 697, 703
(1964).
The Company's argument that the Greenville operation
constituted an accretion has no legal merit. In the first
place, there was nothing for the new warehouse to accrete
to, for it did not open until the Bristol warehouse had
closed. Secondly, the new operation, as noted above, in-
cluded truckdrivers, and no truckdrivers had been em-
ployed by Bristol Consolidators at the Bristol warehouse.
Nor are there present here any of the kind of considera-
tions (and there is no need to enumerate them) the Board
looks to in determining whether or not a new operation is
an accretion to an existing one.
All things considered, I am impelled to find that the
Respondent Company violated Section 8(a)(1), (2), and (3)
of the Act, despite its "good faith," and that Respondent
Union, by accepting such recognition and because the con-
tract contained a union-security provision, violated Section
8(bXIXA) and (2) of the Act.
Upon the basis of the foregoing findings of fact and the
entire record, I make the following:
CONCLUSION OF LAW
Respondent Employer and Respondent Union, by exe-
cuting a contract containing a union-security provision
covering the Employer's facility at Greenville, Pennsylva-
nia, at a time when no employees had been hired and said
labor organization did not represent a majority of the em-
ployees, have engaged in unfair labor practices within the
meaning of Section 8(aX 1), (2), and (3) on the part of Re-
spondent Employer and Section 8(b)(IXA) and (2) on the
part of Respondent Union, affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I shall recommend that they cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
In view of the fact that the provisions of the unlawfully
executed agreement contained a mandatory union-security
clause, Respondents will be required jointly and severally
to reimburse all present and former employees, except
those excluded below, for all initiation fees, dues, or other
moneys paid or checked off pursuant to the unlawful
union-security agreement with interest thereon to be com-
puted as prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). Reimbursement, however, will not ex-
tend to any such employees who may have voluntarily
joined and been members of Respondent Local 564 prior
to their employment by Respondent Company.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER7
A. The Respondent, Bristol Consolidators, Inc., Green-
ville, Pennsylvania, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Recognizing or dealing with Respondent Local 564
as the bargaining representative of its employees unless
and until Local 654 has been certified by the Board as the
exclusive bargaining representative of such employees.
(b) Assisting Respondent Local 564 in any other man-
ner to become the collective-bargaining representative of
its employees.
(c) Giving effect to, performing, or in any way enforcing
the collective-bargaining agreement with Local 564 entered
into on or about December 14, 1977, or to any modifica-
tion, extension, renewal, or supplement thereto; provided,
however, that nothing herein shall require Respondent Em-
ployer to vary or abandon any wage, hour, seniority, or
other substantive feature of its relations with its employees
which have been established in the performance of any
such agreement or to prejudice the assertion by such em-
ployees of any rights they may have thereunder.
(d) Encouraging membership in, or activities on behalf
of, Respondent Local 564 by discriminating against its em-
ployees with respect to their hire, tenure, and terms and
conditions of employment.
(e) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Re-
spondent Local 564 as the representative of its employees
for the purposes of collective bargaining unless and until
said labor organization shall have been duly certified by
the Board as the exclusive representative of such employ-
ees.
(b) Jointly and severally with Respondent Local 564,
reimburse each of its present and former employees, except
those who joined said labor organization prior to their em-
ployment by Respondent Company at Greenville, Pennsyl-
vania, for any and all initiation fees, dues, and other
moneys, if any, paid by or withheld from them pursuant to
the terms of the aforesaid collective-bargaining agreement.
(c) Post at its Greenville, Pennsylvania, warehouse cop-
ies of the attached notice marked "Appendix A." s Copies
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
s In the event that this Order is enforced hb a judgment of a United States
Court of Appeals. the words in the notice reading "Posted by Order of the
National labor Relations Board" shall read "Posted Pursuant to a Judg-
Continued
605
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of said notice, on forms provided by the Regional Director
for Region 6, shall, after being duly signed by Respondent
Company's representative, be posted immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps have been
taken to comply herewith.
B. The Respondent, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, General Teamsters Union Local No. 564, its offi-
cers, representatives, and agents, shall:
1. Cease and desist from:
(a) Acting as the exclusive bargaining representative of
the Respondent Company's Greenville, Pennsylvania, em-
ployees for the purpose of collective bargaining unless and
until it shall have been certified by the Board as the exclu-
sive representative of said employees.
(b) Giving any force or effect to the collective-bargain-
ing agreement with Respondent Company executed on or
about December 14, 1977, or to any modification, exten-
sion, renewal, or supplement thereto.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Jointly and severally with Respondent Company,
reimburse each of Respondent Company's present and for-
mer employees at the Greenville, Pennsylvania, warehouse,
except those who joined Respondent Local 564 prior to
their employment by Respondent Company, for any and
all initiation fees, dues, and other moneys, if any, paid by
or withheld from them pursuant to the terms of the afore-
said collective-bargaining agreement.
(b) Post at its offices or meeting halls copies of the at-
tached notice marked "Appendix B."9 Copies of said no-
tice, provided by the Regional Director for Region 6, shall,
after being duly signed by Respondent Union's representa-
tive, be posted immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps have been
taken to comply herewith.
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
9 See fn. 8. supra.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT recognize or deal with Local 564 of the
Teamsters as the representative of our employees un-
less and until it has been certified by the National
Labor Relations Board as the exclusive bargaining
representative of our employees.
WE WILL NOT give any force or effect to the Decem-
ber 14, 1977, agreement made with Local 564 or to
any renewal, extension, modification, or supplement
thereto.
WE WILL NOT assist Local 564 in any other manner to
become the representative of our employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL withdraw and withhold all recognition
from Respondent Local 564 as the representative of
our employees for the purposes of collective bargain-
ing unless and until the said labor organization shall
have been duly certified by the Board as the exclusive
representative of such employees.
WE WILL. jointly and severally with said Local 564,
reimburse all present and former employees, except
those who joined Local 564 prior to their employment
at our Greenville warehouse, for any initiation fees,
dues, or other moneys paid or withheld from them
pursuant to the aforesaid agreement or to any agree-
ment superseding it.
BRISTOL CONSOLIDATORS. INC
606