Lawrenceville Ready-Mix Co.

National Labor Relations Board - Board Decisions

Dec 31, 1991

305 N.L.R.B. 1010 (N.L.R.B. 1991)

1010
305 NLRB No. 156
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 In sec. 2(b) of his recommended Order, the judge inadvertently
stated that the Respondent’s last payment to the Union’s Indiana
Conference of Teamsters Construction and Materials Division Health
and Welfare Plan was made in January 1990; the correct date is
1991.
3 See NLRB v. American National Insurance Co., 343 U.S. 395,
399 fn. 4 (1952). See also NLRB v. Mexia Textile Mills, 339 U.S.
563, 567 (1950).
Lawrenceville Ready-Mix Co. and Teamsters,
Chauffeurs, Warehousemen and Helpers, Local
Union No. 144, affiliated with the International
Brotherhood of Teamsters, AFL–CIO.1 Case
14–CA–21302
December 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 24, 1991, Administrative Law Judge David
L. Evans issued the attached decision. The Respondent
filed exceptions, a supporting brief, and a motion to
dismiss. The General Counsel filed an answering brief
in opposition to the Respondent’s motion to dismiss.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as modi-
fied.
The Respondent excepted to the judge’s findings
that it violated Section 8(a)(5) and (1) by unilaterally
changing its unit employees’ health and welfare insur-
ance carrier and ceasing to make required contributions
on behalf of its employees to the Indiana Conference
of Teamsters Construction and Material Division
Health and Welfare Plan (Indiana Teamsters Plan). The
Respondent contends that it had a right to change plans
because it informed the Union it could not afford the
Indiana Teamsters Plan and that the parties had
reached impasse in bargaining about the matter. The
Respondent’s arguments are the same as those rejected
by the judge and, for the reasons stated by the judge,
we also reject them. Thus, we find the Respondent’s
exceptions lacking in merit.
The Respondent also filed a motion to dismiss, as-
serting that the judge’s remedy and recommended
Order are no longer appropriate because the parties
have entered into a new collective-bargaining agree-
ment effective from January 1, 1991, through Decem-
ber 1993 that specifies a different health and welfare
plan/carrier. Thus, the Respondent contends that it has
fulfilled its bargaining obligation and the matter is now
moot. The Respondent also contends that it should not
be required to make any payments to the Indiana
Teamsters Plan because there was no lapse in health
insurance coverage for its employees and, thus, the
Board’s ordering it to make payments to the Indiana
Teamsters Plan will result in the onerous imposition on
it of a triple financial obligation.
For the following reasons, we disagree that the case
should be dismissed as moot, but we will allow the
Respondent to raise, in compliance, the question of the
effect of the alleged new bargaining agreement on its
obligations under the make-whole portions of the rec-
ommended Order.
By urging dismissal of the case on mootness
grounds, the Respondent is essentially arguing that it
should not be found to have committed any violation
at the time it unilaterally ceased making payments
under the established Indiana Teamsters Plan and sub-
stituted another carrier of its own choosing. Even as-
suming arguendo that the Respondent later negotiated
an agreement concerning health coverage that was
made retroactive to the date on which the unilateral ac-
tion occurred, we find the fact remains that the Re-
spondent committed a violation when it took unilateral
action undermining the collective-bargaining relation-
ship and a cease-and-desist order, at the very least, is
appropriate.3
With respect to the Respondent’s contention that the
recommended Order improperly penalizes it by effec-
tively requiring triple payments for the same period,
we note that the evidence proffered by the Respondent
consists of a copy of a collective-bargaining agreement
that is unsigned and undated. We cannot rely on this
evidence to find that the Respondent is bound or that
benefits have been paid out. Nevertheless, although we
deny the Respondent’s motion to dismiss, we shall per-
mit the parties to introduce evidence at the compliance
stage relevant to what, if anything, remains to be done
to make the employees and the Indiana Teamsters Plan
whole for the Respondent’s unilateral substitution of a
different health plan for the Indiana Teamsters Plan.
Several issues may be determined in compliance.
First, the Respondent may seek to prove that the col-
lective-bargaining agreement it has proffered is an exe-
cuted agreement that became retroactively effective as
of a date on or before the date on which the Respond-
ent ceased making contributions into the Indiana
Teamsters Plan. If the Respondent fails to establish
this, then the Respondent must comply with all the
provisions of the Order recommended by the adminis-
trative law judge. If, however, the Respondent submits
sufficient proof of its contention—thereby establishing
that it agreed with the Union to establish a health plan
different from the Indiana Teamsters Plan and make
that new plan effective on or before the date on which
the Respondent had discontinued payments into Indi-
1011LAWRENCEVILLE READY-MIX CO.
4 We note that the Indiana Teamsters Plan is solely a health insur-
ance plan, and not a pension plan, so we are not dealing with the
problem of protecting the stability of a fund in whose future viability
the employees have a clear economic stake. Cf. Manhattan Eye, Ear
& Throat Hospital, 300 NLRB 201 and cases there cited (1990), enf.
denied and remanded 942 F.2d 151 (2d Cir. 1991).
ana Teamsters Plan—then the Respondent will be lia-
ble only for any benefits paid out by the Indiana
Teamsters Plan on behalf of the unit employees during
the period before the parties executed the new agree-
ment and any unreimbursed medical expenses incurred
by the employees during that period which would have
been covered by the Indiana Teamsters Plan.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Lawrenceville Ready-Mix Co., Lawrenceville, Illinois,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Insert the following as paragraph 2(b) and reletter
the subrequent paragraphs accordingly.
‘‘(b) Make its employees and the Union’s Indiana
Conference of Teamsters Construction and Materials
Division Health and Welfare Plan whole by paying to
the plan, with interest, the amounts as provided in the
1988–1990 collective-bargaining agreement, as amend-
ed in 1989, which expired on December 31, 1990. The
obligations shall commence following the last payment
that was made in January 1991, for the period cor-
responding to the payment, and continue until such
time as the Respondent negotiates in good faith to a
new agreement or to an impasse. If, during the compli-
ance stage of this matter, any one of the parties intro-
duces evidence showing that the Respondent’s bar-
gaining obligation has been met and there is a collec-
tive-bargaining agreement in existence that covers the
entire period in dispute, then the Respondent shall
make whole the Union’s Indiana Conference of Team-
sters Construction and Materials Division Health and
Welfare Plan only to the extent that it paid medical
claims submitted by the Respondent’s employees dur-
ing the period of the Respondent’s unlawful dis-
continuance. The Respondent shall also make its em-
ployees whole, with interest, for any loss they suffered
due to the Respondent’s unlawful discontinuance of its
payments to the Union’s Indiana Conference of Team-
sters Construction and Materials Division Health and
Welfare Plan.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to bargain collectively with
Teamsters, Chauffeurs, Warehousemen and Helpers,
Local Union No. 144, affiliated with the International
Brotherhood of Teamsters, AFL–CIO as the exclusive
representative of our employees in the appropriate unit
described as follows:
All drivers and operators of ready-mix concrete
trucks; excluding sales and technical employees,
office clerical employees and guards, and super-
visors as defined in the Act.
WE WILL NOT unilaterally cease payments to the In-
diana Conference of Teamsters Construction and Mate-
rials Division Health and Welfare Plan, as required by
our 1988–1990 collective-bargaining agreement with
the Union, as amended by our agreement with the
Union dated December 5, 1989.
WE WILL NOT unilaterally institute any medical in-
surance plan with respect to employees in the above-
described appropriate unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
exclusive representative of the employees in the above-
described unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement.
WE WILL make our employees and the Union’s Indi-
ana Conference of Teamsters Construction and Mate-
rials Division Health and Welfare Plan whole by pay-
ing to the plan, with interest, the amounts provided in
the 1988–1990 collective-bargaining agreement, as
amended in 1989, which expired on December 31,
1990. The obligations shall commence following the
last payment that was made in January 1990, for the
period corresponding to that payment, and continue
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel’s unopposed motion to correct the record
is granted.
2 The complaint alleges, and the answer admits, that the last con-
tract between the parties contains a description of the appropriate
unit. There is no unit description, as such, in the contract; the unit
description herein is based on undisputed facts.
until such time as we negotiate in good faith to a new
agreement or to an impasse or if a collective-bar-
gaining agreement has been agreed to that covers the
period of our unlawful discontinuance of the Indiana
Plan, we shall make whole the plan by reimbursing it
for any medical claims it paid for our employees. We
shall also make our employees whole, with interest, for
any losses they suffered due to our unlawful dis-
continuance of payments to the Union’s Indiana Con-
ference of Teamsters Construction and Materials Divi-
sion Health and Welfare Plan.
LAWRENCEVILLE READY-MIX CO.
Franchette C. Potter, Esq., for the General Counsel.
Joseph A. Yocum, Esq. (Yocum & Yocum), of Evansville, In-
diana, for the Respondent.
Michael Gratzek, of Vincennes, Indiana, for the Charging
Party.
DECISION
DAVID L. EVANS, Administrative Law Judge. This matter
was tried before me in St. Louis, Missouri, on May 30, 1991.
The March 18, 1991 charge was filed against Lawrenceville
Ready-Mix Co. (the Respondent) by Teamsters, Chauffeurs,
Warehousemen and Helpers, Local Union No. 144, affiliated
with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO (the
Union), and the complaint on the charge issued on May 1,
1991. The allegation is that Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act (the Act)
by its unilateral changing of the health and welfare program
that covered its employees who are represented by the Union
and by its unilateral discontinuance of payments to a health
and welfare program that had been established by an expired
collective-bargaining agreement. Respondent filed an answer
admitting jurisdiction, but denying the commission of any
unfair labor practices.
After consideration of the testimony at the hearing and the
briefs filed by the General Counsel and Respondent, I make
the following1
FINDINGS OF FACT
Respondent is an Illinois corporation with an office and
place of business in Lawrenceville, Illinois, where it is en-
gaged in the manufacture and delivery of ready-mix concrete
and related products. During the year ending March 31,
1991, Respondent, in the course and conduct of that busi-
ness, sold and shipped products, goods, and materials valued
in excess of $50,000 to other enterprises located in Illinois,
each of which other enterprises meets a direct standard of as-
sertion of the Board’s jurisdictional standards. Therefore, Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and the
Union is a labor organization within the meaning of Section
2(5) of the Act.
I. THE UNFAIR LABOR PRACTICES
Respondent employs four drivers of ready-mix concrete
trucks; the Union has represented the drivers since at least
1973. Respondent and the Union have been parties to a suc-
cession of collective-bargaining agreements, the last of which
was effective from January 1, 1988, through December 31,
1990.2 As originally entered, that agreement provided health
and welfare coverage for the unit employees under the Cen-
tral States Southeast and Southwest Areas Health and Wel-
fare Fund, and Respondent was required to make contribu-
tions to that fund on the employees’ behalf. By agreement
dated December 5, 1989, the parties substituted the Indiana
Conference of Teamsters Construction and Materials Divi-
sion Health and Welfare Plan (the Indiana Teamsters Plan)
for unit employee health and welfare coverage.
The parties met once, on October 24, 1990, for purposes
of negotiating a successor agreement. Respondent’s agents
expressed to the Union that Respondent was having difficulty
making the required payments to the Indiana Teamsters Plan.
The parties compared the Indiana Teamsters Plan to the Cen-
tral States Plan; neither proposed going back to the Central
States Plan. At one point Respondent proposed that any in-
creases in premiums in the Indiana Teamsters Plan be de-
ducted from employee wages, but no agreement was reached.
Other matters, such as seniority and overtime premiums,
were discussed, but no agreements were reached. At no point
in the meeting did Respondent’s agents propose doing away
with the Indiana Teamsters Plan and substituting another
plan.
After the collective-bargaining agreement expired on De-
cember 31, 1990, Respondent made one more of its required
payments to the Indiana Teamsters Plan, on January 17,
1991. On March 8, 1991, by letter, Respondent first notified
the Union that it had contracted for employee coverage with
‘‘other health insurance.’’ Respondent had contracted with
the Associated General Contractors of America for participa-
tion in that organization’s group health insurance plan.
II. CONCLUDING FINDINGS
As the Board stated in Bay Area Sealers, 251 NLRB 89
at 90 (1980):
Although an employer’s contractual obligations cease
with the expiration of the contract, those terms and con-
ditions established by the contract and governing the
employer-employee, as opposed to the employer-union,
relationship survive the contract and present the em-
ployer with a continuing obligation to apply those terms
and conditions unless the employer gives timely notice
of its intention to modify a condition of employment
and the union fails to timely request bargaining, or im-
passe is reached during bargaining over the proposed
change. [Emphasis added.]
Here, Respondent gave no notice, timely or otherwise, that
it was contemplating changing the established plan of unit
employee insurance coverage. Of course, there was no im-
1013LAWRENCEVILLE READY-MIX CO.
3 See Merryweather Optical Co., 240 NLRB 1213 (1979).
4 See Stone Boat Yard, 264 NLRB 981, 983 at fn. 7 (1982).
5 See New Horizons for the Retarded, 283 NLRB 1173 (1987).
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
passe, as the matter of substituting another carrier was never
discussed.
Respondent appears to argue that the contractual provi-
sions for employee coverage under the Indiana Teamsters
Plan terminated by operation of the collective-bargaining
agreement that established Respondent’s obligations under
that plan. The language on which Respondent relies is:
The obligation to make contributions to the Fund shall
be terminated when and if such contributions are no
longer required by a collective bargaining agreement
between the parties.
Respondent argues that, because the contract between the
parties had expired, contributions to the Indiana Teamsters
Plan were no longer required.
This is a fallacious construction of the quoted language.
The language is a simple statement that the obligations con-
tinue until entry into a contract that eliminates the obligation.
Moreover, after the contract expired on December 31,
1990, the contributions were required not only by the con-
tract; they were required by operation of law, as stated
above.
Accordingly, I find and conclude that by changing the unit
employees’ health and welfare insurance carriers, and ceasing
to make contributions on behalf of its employees to the Indi-
ana Conference of Teamsters Construction and Material Di-
vision Health and Welfare Plan, as required by Respondent’s
1988–1990 collective-bargaining agreement with the Union,
as amended by its agreement with the Union dated December
5, 1989, each of which action was taken without prior notice
to the Union and without having afforded the Union an op-
portunity to negotiate and bargain as the exclusive represent-
ative of Respondent’s employees with respect to such acts
and conduct and the effects of such acts and conduct, Re-
spondent has violated Section 8(a)(5) and (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
I shall recommend that Respondent make its employees
whole by paying, with interest,3 all contributions to the
Union’s Indiana Conference of Teamsters Construction and
Material Division Health and Welfare Plan, as provided in
the expired collective-bargaining agreement between Re-
spondent and the Union, which have not been paid and
which would have been paid absent Respondent’s unlawful
unilateral discontinuance of such payments; however, nothing
in this order shall be construed as requiring Respondent to
rescind the medical insurance plan benefits which it unilater-
ally established in violation of the Act.4
Additionally, I shall recommend that Respondent be or-
dered to make whole the unit employees for the losses or ex-
penses they suffered due to Respondent’s unilateral cessation
of payments, with interest.5
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Lawrenceville Ready-Mix Co.,
Lawrenceville, Illinois, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Teamsters,
Chauffeurs, Warehousemen and Helpers, Local Union No.
144, affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
AFL–CIO as the exclusive representative of its employees in
the appropriate unit described as follows:
All drivers and operators of ready-mix concrete trucks;
excluding sales and technical employees, office clerical
employees and guards, and supervisors as defined in the
Act.
(b) Unilaterally ceasing payments to the Indiana Con-
ference of Teamsters Construction and Material Division
Health and Welfare Plan, as required by Respondent’s 1988–
1990 collective-bargaining agreement with the Union, as
amended by its agreement with the Union dated December
5, 1989.
(c) Unilaterally instituting any medical insurance plan with
respect to employees in the above-described appropriate unit.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the above-described unit
concerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a
signed agreement.
(b) Make its employees and the Union’s Indiana Con-
ference of Teamsters Construction and Material Division
Health and Welfare Plan whole by paying to the plan, with
interest, the amounts as provided in the 1988–1990 collec-
tive-bargaining agreement, as amended in 1989, which ex-
pired on December 31, 1990. The obligations shall com-
mence following the last payment that was made in January
1990, for the period corresponding to the payment, and con-
tinue until such time as Respondent negotiates in good faith
to a new agreement or to an impasse. Respondent shall also
make its employees whole, with interest, for any loss they
suffered due to Respondent’s unlawful discontinuance of its
payments to the Union’s Indiana Conference of Teamsters
Construction and Material Division Health and Welfare Plan.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amounts due under the terms of this Order.
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(d) Post at its Lawrenceville, Illinois place copies of the
attached notice marked ‘‘Appendix.’’7 Copies of the notice,
on forms provided by the Regional Director for Region 14,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.