Springfield Transit Management, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 916 (N.L.R.B. 1986)

916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Springfield Transit Management, Inc. and Local
448, Amalgamated Transit Union . Case 1-CA-
22718
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 25 September 1985 Administrative Law
Judge George F. Mclnerny issued the attached de-
cision . The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief
in support of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision' and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order
as modified.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Springfield Transit Management, Inc.,
Springfield, Massachusetts, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 1(b).
"(b) In any like or related manner interfering
with, restraining , or coercing its employees in the
exercise of the rights guaranteed them by Section 7
of the Act."
i Our recent decisions in Res-Care, Inc, 280 NLRB 670 (1986), and
Long Stretch Youth Home, 280 NLRB 678 (1986), clarified the principles
under which the Board may, in exercising its discretion, decline to assert
jurisdiction over an employer because of its relationship to an entity
exempt from our jurisdiction Here, however, the Respondent has not
contested the Board 's jurisdiction and we need not pass on the discretion-
ary jurisdictional issue in this case See, e g., Gateway Motor Lodge, 222
NLRB 851 (1976)
2 The judge stated in sec III,A, par 6, that "It is illogical to assume
that the Authority had not approved the pre-arbitration agreements " In
support of this finding we note that once the Respondent and the Au-
thority were ordered by the Massachusetts Superior Court to submit un-
resolved bargaining issues to interest arbitration , their failure to submit
previously negotiated contract terms constituted approval of those pre-
impasse agreements We further find it unnecessary to rely on the judge's
statement in sec III,A, par 7, that "it would be illogical for him [the
Respondent 's general manager] to have done this without, at least, con-
sultation with his own counsel "
We also correct the judge's inadvertent error in sec III,A, par 7, to
reflect that Perkins' letter to the Union was dated 8 February 1985 This
modification does not affect the outcome of the case
s We do not adopt the judge's remedy and Order insofar as they in-
clude a broad cease-and-desist order and direct the Respondent to reim-
burse the Union for litigation fees and expenses We find these remedies
unwarranted in this case
2. Delete paragraph 2(b) and reletter the subse-
quent paragraphs.
3. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting.
As in Springfield Transit Management , 281 NLRB
72 (1986), I would remand this proceeding for fur-
ther consideration of whether the Board has juris-
diction over the Respondent . See Res-Care, Inc.,
280 NLRB 670 (1986), and Long Stretch Youth
Home, 280 NLRB 678 (1986).
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 ordered 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 representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to sign a collective-bargain-
ing agreement, which we have previously agreed
to.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL sign the amalgamated agreement we
have previously agreed to.
SPRINGFIELD TRANSIT MANAGE-
MENT, INC.
Benjamin Smith, Esq., for the General Counsel.
Robert L. Dambrov, Esq. (Cooley, Shrair, Alpert, Labovitz
& Dambrov. P.C.), of Springfield, Massachusetts, for
the Respondent.
Thomas F. Birmingham, Esq. (Flamm and Birmingham),
of Boston, Massachusetts, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE F. MCINERNY, Administrative Law Judge.
Based on a charge filed on 21 February 1985 by Local
281 NLRB No. 124
SPRINGFIELD TRANSIT MANAGEMENT 917
448, Amalgamated Transit Union (the Union), the Re-
gional Director for Region 1 of the National Labor Rela-
tions Board (the Board) issued a complaint on 5 April
1985 alleging that Springfield Transit Management, Inc.
(the Company or the Respondent) had violated and was
continuing to violate the provisions of Section 8(a)(1)
and (5) of the National Labor Relations Act, 29 U.S.C. §
151 et seq. (the Act), by refusing to sign and execute a
previously agreed-upon collective-bargaining agreement.
The Respondent filed an answer in which it denied the
commission of any unfair labor practices.'
Pursuant to notice, a hearing was held before me in
Springfield, Massachusetts, on 26 June 1985 at which all
parties were represented by counsel and had the oppor-
tunity to present testimony and documentary evidence,
to examine and cross-examine witnesses , and to argue
orally. After the conclusion of the hearing all parties
submitted briefs, which have been carefully considered.
Based on the entire record, including my observation
of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
1. JURISDICTION
The Company is a corporation engaged in the business
of operating a public transportation system in Spring-
field, Massachusetts . The complaint alleges and the
answer, as amended at the hearing, admits that it is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges and the answer, as amended at
the hearing, admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
At all times material the Respondent, Springfield Tran-
sit Management, Inc., has operated and managed a public
transportation system in and around Springfield, under a
' The Respondent also raised a question in its answer concerning the
constitutional right of the Regional Director to issue this complaint. The
Respondent maintains that the provisions of the Civil Service Reform
Act of 1978 (Pub. L. 95-454, 95th Cong., 2d Sess., 91 Stat . 1111, 5 U.S.C.
§ 2301 et seq .) establishing the Senior Executive Service, are unconstitu-
tional "on their face and as applied " The only evidence submitted to
support this position were two documents , one a memorandum dated 14
May 1979 from then General Counsel John S. Irving to all Regional Di-
rectors, and the other an undated document entitled "Critical Elements of
Regional Director Position together with the Factors Comprising each
Critical Element." I find no indication in these documents or in the ex-
tended arguments contained in the Respondent 's brief to overcome the
presumption that Regional Directors like other judicial or quasijudicial
officers are unbiased , and no indication has been specifically shown that
there is either inherently or demonstrably a conflict of interest in the ap-
plication of the Civil Service Reform Act of 1978 to Regional Directors,
or in the impact of that Act in their decisions. See French Hospital Medi-
cal Center, 254 NLRB 711 (1981), and , particularly, the careful analysis
by the court in NLRB P. Ohio New A Rebuilt Parts, 760 F.2d 1443 (6th
Cir. 1985). Accordingly, I find the Respondent 's claim of constitutional
disability on the part of the Regional Director to be without merit.
contract with Pioneer Valley Transit Authority, a public
corporation established under the provisions of Massa-
chusetts General Laws, Chapter 161 B. Pioneer Valley
Transit Authority (the Authority) is the owner of all the
assets, buildings, rolling stock, and other equipment used
in connection with the transportation system managed by
the Company. The Company's duties, functions, respon-
sibilities, and compensation are set out in a series of
annual agreements with the Authority, which have been
entered into evidence here.2 Under the terms of these
agreements , the Company is required to employ a resi-
dent manager, who, with his staff, is given authority to
"handle the day-to-day operational matters of the Transit
System, including labor relations, the negotiation of col-
lective-bargaining agreements, transportation, marketing,
equipment use and care and the maintenance thereof,
purchasing, safety, accounting, budgets and finance." All
of this is, however, under the close supervision and ulti-
mate control of the Authority. All collective-bargaining
agreements , modifications, changes, or amendments must
be approved by the Authority's board of directors.
The original agreement between the Company and the
Authority dated 27 October 1981 required the Company
to assume "all labor and other employee contractual obli-
gations, including, but not limited to, collective-bargain-
ing agreements and pension plans presently existing." At
that time there was a collective-bargaining agreement be-
tween the Union and the Company's predecessor,
Springfield Street Railway Company, dated 8 June 1979
and effective for the period from 1 July 1979 to 30 June
1982. This agreement covered bus operators, mechanics,
and miscellaneous employees, and did not cover office
clerical employees , managerial employees, guards and su-
pervisors.3
Dated 22 April 1982, Unions Business Agent Vincent
R. Gonzalez addressed a letter to President Peter Pick-
nelly and General Manager William Perkins, notifying
them and the Company of the Union's proposals for a
new contract. On 28 April, the Company, by its counsel,
Robert L. Dambrov, in turn notified Business Agent
Gonzalez that the agreement was to expire and that the
Company stood ready to "meet and confer" on the terms
of a new agreement.
The preliminaries being thus taken care of, the parties
began negotiations in May.4 They had seven to nine bar-
2 As requested , I have reviewed the record in Case l-CA-19226, in-
volving the same parties as this case, including a decision by my col-
league Walter H. Maloney Jr. However, the issues there are quite differ-
ent, and I have not considered that record in making my decision here,
because the Company 's status as an employer is admitted , and not litigat-
ed, as in Case 1-CA-19226. Judge Maloney 's decision (JD-104-83), may
be profitably read as a thorough and scholarly analysis of the Federal and
state statutory background to the existence of the Authority, and its place
in an elaborate statutory scheme to establish and maintain public trans-
portation systems.
a The answer admitted the allegation in the complaint of the appropri-
ate bargaining unit . There was no question raised in the record on this
issue, so I find that the unit as alleged is an appropriate unit for collective
bargaining.
4 Evidence concerning the negotiations , the court case, and the arbitra-
tion award was received by stipulation of all parties and is here summa-
rized as so received.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining sessions, and then about 22 July they arrived at
impasse . The Union requested that they take the matter
to arbitration, but the Company declined to do so. The
Union then took the matter to the Massachusetts Superi-
or Court, a three judge panel of which ordered that the
arbitration proceed. 5 The matter then proceeded to a
hearing before a tripartite arbitration panel. The panel
issued its decision on 20 December 1983, setting out the
terms of a contract to extend from 1 July 1982 to 30
June 1987.6
At some point, it is not clear from the testimony when,
or at whose initiative it was undertaken, the Company
decided to, and did , prepare a document to integrate the
prior collective-bargaining agreement with the changes
agreed to by the parties and adopted by the arbitration
panel. Gonzalez recalled that he approached General
Manager Perkins in January 1984 and asked him to
"draw up a contract ." Perkins agreed and said that he
would "condense" the old contract and the changes into
one contract. Perkins testified that during the negotia-
tions in the summer of 1982 the Company felt that the
contract should be "codified ," or "structured in a more
clear way." After the arbitration process was completed,
the Authority's administrator , Robert Manz, suggested
that it would be in the best interest of the Authority and
the Company that they prepare a document that would
"incorporate the features of both the old contract and
the arbitration award ." The Company began to do this,
according to Perkins, and had substantially completed
the task in January when Gonzalez suggested that they
do just that.? The new document was completed some-
time after the January meeting and , according to Gonza-
lez, the finished revision was reviewed by him and Per-
kins in March. Perkins did not pin down the date, but
did corroborate the fact that the document was complet-
ed, then reviewed by the two of them. Both also agreed
that the document was acceptable .8 I find that, at this
5 The findings of the Court, which were not appealed by the Compa-
ny, established that the Company had agreed to be bound by the decision
of an arbitration panel on the terms of a new collective -bargaining agree-
ment.
s Although it was not included in the stipulations, the facts show that
the parties , while the arbitration panel 's decision was pending, actually
came to agreement themselves on all terms for the new contract save one
issue, the question of retroactive cost-of-living pay increases . This issue
was then determined by the panel.
I Whatever the authorship of this idea, or the timetable for its imple-
mentation , it is evident that the old contract was an anachronistic and
inartfully worded document much in need of editing and updating The
revised or "integrated" contract could also use some polishing and clarifi-
cation, but much of it has been improved ; the parties have lived with its
provisions for some years ; and it is not my function to act as a legal or
literary critic on the work the parties have agreed on I am satisfied that
the document referred to as the integrated contract is legally sufficient.
Indeed, no one has raised any questions concerning the document itself,
but only about the duty of the Company to sign it.
e I have carefully reviewed the three documents involved here : the old
contract, the arbitrators ' award , and the new integrated document Aside
from cosmetic changes, such as the substitution of the word "employees"
for "men" throughout, the new document is, as described in the testimo-
ny here , an amalgamation of the other two, but with several exceptions
These are revisions in the amount of life insurance to be paid for by the
Company, in the amount of disability pay, and there is a whole new con-
tractual section applicable to drivers of small buses. There was no specif.
ic testimony addressed to these revisions ; but, relying on the testimony of
both Gonzalez and Perkins that there were changes agreed on by the
parties by "mutual agreement . even before the arbitrations," I infer
point, the parties had come to agreement on this docu-
ment as representing an amalgamated document drawn
from three sources : the original contract; the arbitrators
award; and the additional agreements reached by the
parties before the arbitration phase of the proceeding.
At this point I must consider the Company's argument
that any agreements, disagreements , demands, conces-
sions, or any other activity in the field of collective bar-
gaining required prior approval of the Authority, which
under its operative statutes , and by virtue of its manage-
ment agreement with the Company, retained such con-
trol over the collective-bargaining process. But here, I
find that there was nothing of substance for the Author-
ity to approve. All the evidence the parties presented or
tried to present dealing with Perkins' authority to negoti-
ate without the approval of the Authority; whether Gon-
zalez knew or did not know of any limitations on Per-
kins' authority; or whether Perkins ever told Gonzalez
that he had to take the matter back to the Authority for
"ratification" are really not pertinent to the issue in this
case . Here, there was nothing to take back to the Au-
thority. The Authority had adopted the old contract. It
is illogical to assume that the Authority had not ap-
proved the prearbitration agreements. As the Authority,
just as the parties here, is bound by the Superior Court's
order to arbitrate, whatever appeal was filed was later
withdrawn, and the Authority was likewise bound, as
were the parties, by the arbitration award.
If the document in question, the amalgamated con-
tract, had been prepared by the Union, or by some third
party, there might be a question about the right of the
Authority to direct the Company not to sign. But the
facts are that the document was prepared at the sugges-
tion of the administrator of the Authority and was "sub-
stantially" completed under the direction of William Per-
kins before the Union ever brought the matter up. In all
these circumstances , it ill befits Perkins , writing on
behalf of the Company in January 1985, after repeated
entreaties from Gonzalez to sign the amalgamated agree-
ment, to say that there is "no need for a collective-bar-
gaining agreement; and that such an agreement would
only confuse matters." The remainder of Perkins' letter
really makes very little sense. For example, he says "the
terms of the arbitration decision are clear," but one
cannot understand those terms without careful reference
to the terms of the old contract. He goes on to state that
the integration "serves no particular purpose." This, like-
wise, makes no sense in view of Perkins ' previously ex-
pressed desire to have an integrated agreement in the
"best interest" of the Company and the Authority. Final-
ly, it makes no sense for Perkins to state that there
would be a "significant, unnecessary expense" to have
the integrated contract reviewed by counsel for the
Company, counsel for the Authority, and by the Compa-
ny's representative on the arbitration panel. Not only did
he prepare the integrated contract himself, but it would
be illogical for him to have done this without, at least,
consultation with his own counsel; and further review by
and find that the changes I noted were these referred to by these witness.
Certainly , if this were not so the Respondent would have pointed that
fact out to me
SPRINGFIELD TRANSIT MANAGEMENT 919
counsel for the Authority and the arbitration representa-
tive would seem to be both unnecessary and redundant.'
Besides this rather disingenuous letter , there is no further
explanation of why the Company or the Authority took
the position that the Company would not sign the inte-
grated contract.
Section 8(d) of the Act requires that the parties exe-
cute "a written contract incorporating any agreement
reached if requested by either party . . . ." As I have
noted, the parties had reached an agreement consisting of
the old contract, the prearbitration agreements, and the
arbitration award . The Company thereafter prepared a
document incorporating these agreements as reached.' ° I
have found that the document does accurately reflect
those agreements, and the Union has requested that the
document be signed . The Company has offered no valid
defense , and I find that it has violated Section 8(a)(5) and
(1) by its failure to execute the amalgamated contract.
Proctor & Gamble Mfg. Co., 248 NLRB 953 (1980); Elec-
trical Workers IBEW Local 1464 (Kansas City Power), 275
NLRB 557 (1985).
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act, I shall recommend that it
cease and desist therefrom and that it take certain affirm-
ative action designed to effectuate the policies of the
Act.
The Charging Party urges that I grant it litigation ex-
penses for this proceeding . Put another way, the Charg-
ing Party wants me to recommend the award of legal
fees, travel , and other expenses incurred by counsel in
the preparation and trial of this case.
Section 10(c) of the Act empowers the Board to fash-
ion remedies that will effectuate the policies of the Act.
In exercising this authority, the Board has ordered reme-
dies that would undo the effects of unlawful conduct by
restoring the situation "as nearly as possible to that
which would have obtained but for the illegal discrimi-
nation." 11
The Board has historically been reluctant to order
remedies that required actions by those found to have
violated the law beyond the award of backpay and inter-
est. Transit Union Division 825 (Transport of New Jersey),
240 NLRB 1267 (1979); and Television Wisconsin, 224
NLRB 722 (1976). In Frank Mascali Construction, 251
NLRB 219 ( 1980), the Board did agree with my recom-
mendation that certain employees were entitled to wages
lost because of their attendance at internal disciplinary
hearings found to violate Section 8(b)(l)(A) and (2) of
the Act. In Carpenters Local 953 (Corbesco), 272 NLRB
70 (1984), the Board required the respondent union to re-
imburse an employee for travel expenses incurred as a
result of discriminatory conduct.
9 there is no indication in the record of just what expenses would be
incurred in this prospective review process . My own analysis, bearing in
mind my unfamiliarity with the documents , took about 4 hours.
10 The parties had agreed in advance to all but one of the issues decid-
ed by the arbitration panel , and thereafter acquiesced in the panel's
award . No one is arguing at this point that the award is not part of an
"agreement reached."
11 Phelps Dodge v. NLRB, 313 U.S. 177 (1941).
Moving further in this area , the Board recently over-
ruled Transit Union and Television Wisconsin , and in part,
Laborers Northern California Council (Baker Co.), 275
NLRB 278 (1985). In reaching its conclusion, the Board
cited with approval Power Systems, 239 NLRB 445
(1978); J. W Rhodes Department Stores, 267 NLRB 381
(1983); United Credit Bureau of America, 242 NLRB 921
(1979); and Operating Engineers Local 138 (Charles S.
Skura), 148 NLRB 679 (1964), which cases ordered reim-
bursement of legal fees to employees forced into collater-
al litigation because of conduct found violative of both
Section 8(a)(4) and Section 8(b)(1)(A).
In this case, of course , the legal fees and expenses re-
quested are directly related to the Charging Party's par-
ticipation here, rather than in some other forum. Howev-
er, in Laborers Northern California Council, supra, the
Board indicated that it found "no basis for applying the
`American' rule against providing legal expenses to the
prevailing party in a lawsuit, to preclude the remedy in
the instant case" (275 NLRB at 280 fn . 15), citing the Su-
preme Court's holding in Alyeska Pipeline Service Co. v.
Wilderness Society, 421 U.S. 240 , 258-259 (1975), that the
American rule would not apply "when the losing party
has `acted in bad faith , vexatiously , wantonly or for op-
pressive reasons ."' F. D. Rich Co. v. Industrial Lumbers
Co., 417 U.S. 116, 129 (1974), citing Vaughn v. Atkinson,
369 U.S. 527 (1962). The Board thus seems to be saying
that in a case presenting the kind of exceptional circum-
stances voted by the Court in Alyeska Pipeline, it would
consider the award of legal fees and expenses to the
Charging Party.12
I believe this case presents just such a situation. The
action of Respondent in first preparing the amalgamated
contract, reviewing it with the Union, approving all its
provisions , and then pulling back and refusing to execute
the agreement with an excuse , which can only be de-
scribed as incredible, presents a situation where the re-
fusal fits all the Supreme Court's criteria of bad faith,
vexatiousness , and wantonness, going to the heart of the
collective-bargaining process, and effectively subverting
that process . I will, therefore , recommend that the Re-
spondent be required to pay the Charging Party's legal
fees and expenses , reasonably calculated and related to
the trial of this case . For the same reasons , I shall recom-
mend that the Board issue a broad remedial order. Hick-
mott Foods, 242 NLRB 1357 (1979).
CONCLUSIONS OF LAW
1. The Respondent , Springfield Transit Management,
Inc., is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Charging Party, Local 448, Amalgamated
Transit Union, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By refusing to execute the agreement between the
parties, the Respondent has violated and is violating Sec-
tion 8(a)(1) and (5) of the Act.
12 Such circumstances would necessarily involve conduct more serious
than a mere finding that the Respondent in a given case had bargained in
"bad faith" as defined in Sec . 8(d) of the Act
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Springfield Transit Management,
Inc., Springfield, Massachusetts, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to execute the amalgamated agreement
prepared by the Respondent and agreed to by the Union.
(b) In any other manner interfering with, restraining,
or coercing its employees in the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Immediately execute the integrated agreement with
the Union for the appropriate unit composed of all bus
operators and miscellaneous employees employed by it at
its Springfield, Massachusetts facility, but excluding
office clerical employees, managerial employees, guards
and supervisors as defined in the Act.
(b) Pay to the Union such sums of money as represent
the reasonable legal fees and travel expenses incurred by
it in connection with this case.
(c) Post at its facility in Springfield, Massachusetts
copies of the attached notice marked "Appendix." 14
Copies of the notice, on forms provided by the Regional
Director for Region 1, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt 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 Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
13 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "