Howard Disposal Corp., 1108 (1965)

DECISION AND ORDER

On March 9, 1965, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged and recommending dismissal of the complaint in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Decision and supporting briefs, and the Respondent filed a reply brief.

155 NLRB No. 96.

HO''TARDDISPOSAL CORP., 1109

Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the -1 ational Labor Relations Board has delegated its powers in connection with this case. to a three-member panel [Members Fanning, Brown, and Jenkins].

The Board has reviewed the rulings inade by the Trial Examiner at the hearing and finds that no preju dicial error was committed. The rulings are hereby a_f_lrmed. The Board has consi dered the Trial Examiner's Decision, the exceptions and briefs; and the entire record in the case. and finds merit. in the exceptions of the Charging Party and General Counsel. Accordingly, the. Board adopts the Trial Examiner's findings only to the extent consistent with its opinion hereafter, and does not adopt his conclusions or recomme nations.

The facts, herein summarized, slow that for several Years the Respondent has been a member of an i for lnal multiemplorer bargaining group of refuse disposal Prins which, for many Years, bargained jointly with the Union and executed separate but identical collectivebargaining contracts. In 1962, 10 of the 11 inennbers secured refuse disposal contracts from the city of Boston, effective -For a period of 1 year from April 1. 1962, with the option of the city of Boston to renew them for successive Yearly Periods. In 1962, following joint negotiations. the member firms ag ain executed separate but identical 2-year contracts with the -Union, effective from April 1, 1962, to March 31, 1964. Article X of the contracts read as follows :

The. terms and c o editions of this Agree-meilt. shall continue in force and bind both parties from April 1. 1962, to March 31, 1964;

prov'_ded the City of Boston, Pu blic Works . Department e ^e_C_ s its option and renew-s the present contract with all of the contractors presently parties. to this Agreement ? ith the Unio-= ,.

containing the. same terms. and conditions as the insta It agree^^ 1lnellt. In :.112 event the City of BCStO i does not exercise said option with respect to any or all said contractors then this Agre -nhent shall terminate as of v-?arch 31, 1963.

In January and February 1964-, the bargaining group negotiated new 4-year contracts with the Fnion, effective a pril 1, 1964, to March 31, 1968. The language of article X of the 1962 contracts was omitted from these contracts. The Respondent's representative attended the negotiating sessions and voiced no evidence reservation or dissent during the proceedings. Of the. eight signatories to the 1962 contracts who in 1964 still had employees subject to the coverage, of the bargaining unit, all except the Respondent and one firm which had no disposal contract with the city of Boston in 1962 were awarded new contracts with the city of Boston as of April 1. 1964. All of these 1110 DECISIONS OF - ATIONAL LABOR RELATIONS BOARD employers also signed the newly negotiated collective-bargaining contracts with the Unionexcept the Respondent, whose refusal was based on its failure to receive a new trash disposal contract from the city of Boston.1

The Trial Examiner concluded that the Respondent's obligation to execute the 1964 bargaining agreement was contingent upon a renewal of the city of Boston's contract with the Respondent and that, as this renewal did not occur, its re-fusal to sign the contract was not a violation of Section 8(a) (5). He therefore recommended dismissal of the complaint. We do not agree.

On the contrary, we note the following facts: The language of article X of the 1962 contract, the so-called contingency clause, does not appear in the 1964 contract even though the negotiations thereon were concluded before the award of the Boston disposal contracts.

At least one member firm did not contract with the city of Boston regarding refuse disposal work, yet it signed both the 1962 and 1964 collective-bargaining contracts. We also note that the income for some member firms from commercial work considerably exceeds their income from municipal work, and the collective-'.oargaining contracts covered all drivers, whether engaged in municipal or commercial work.

More importantly, although the Respondent could have timely raised the question of whether it would be bound by the results cf the group bargaining absent a. Boston disposal contract award, or requested the inclusion of the contingency clause utilized in the previous contract, it instead remained silent, notifying neither the Union nor an of the other bargaining group members of its position in that regard and attending the joint negotiating sessions for the 1964 contract without voicing any evident dissent or reservations as to the results reached. In these circumstances, we view an attempted withdrawal from the consequences of group bargaining as untimely 2

Accordingly, we find, contrary to the Trial Examiner, That the Respondent, by its refusal to sign the 1964 contract, has violated Section 8 (a) (;) of the Act.

The Effect of the Unfair Labor Practices The activities of Respondent occurring in connection with its business operations have a close, intimate, and substantial relation to trade, 1 Nine employers signed the new 1964 bargaining contracts, including the eight abovementioned signatories to the 1962 contract and one new employer who did not participate in the 1964 negotiations. Of the remaining three signatories to the 1962 contracts, one became a family operation, the second laid off all its employees, and the third no longer has employees in the Union's bargaining area.

2Ariel Ofaet Co., Inc., 149 NLRB 1145. Fairbanks Dairy, Division of Cooperdale Dairy Company, late., 146-NLRB 893.

HOWARD, DISPOSAL • CORP.

traffic, and commerce among the several States, and._tend to :.lead to labor disputes burdening and obstructing commerce and the free flaw, of. commerce. THE .R 31EDY As the Respondent has engaged in certain unfair labor practices, it shall be ordered to cease and desist therefrom and to take certain affirmative action designated to effectuate the policies of the Act.

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As the Respondent has unlawfully refused to execute a collectivebargaining contract concluded as a result of group` negotiations in which itwas a participant; the Respondent shall be ordered, upon the Union's request, to execute the contract agreed upon by the parties.

CONcLusIoNS OF: LAS 1. The Respondent is engaged in commerce within.the meaning of Section 2(6) and (7) of the Act.

2. The Union is a labor organization within themeaning_of Section 2(5) of the Act;

3. At all times material herein, the Union was,-_ and is now, the exclusive representative of all drivers of the Respondent. at its Rexbury, Massachusetts, place of business, excluding all supervi sors as defined in the. Act.

4. By failing -to sign an agreement reached by a.multiemployer bargaining group of which the Respondent was a member. as a result of negotiations in which it participated, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act.

5. By engaging in the aforesaid- conduct, the Respondent has interfered with, restrained,. and coerced employees in tlie.exercise'of their statutory right to bargain collectively through representatives of their own choosing within the meaning of-'Section 8 (a) (1) of the Act.

6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.

   ORDER

   Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Howard Disposal Corp., Roxbury, Massachusetts, its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

   (a) Refusing to sign the contract negotiated in 1964 by the bargaining-group of disposal firms in the Boston area with...