ABC Trans-National Transport, Inc.

National Labor Relations Board - Board Decisions

Jan 11, 1980

247 N.L.R.B. 240 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ABC Trans-National Transport, Inc. and Truck Driv-
ers, Chauffeurs and Helpers Local Union No. 100,
an affiliate of International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Case 9-CA-12796
January 11, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 17, 1979, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed a
brief in response to Respondent's exceptions.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, ABC
Trans-National Transport, Inc., New York, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Insert the following paragraphs 2(d) and (e),
respectively, and reletter the subsequent paragraphs
accordingly:
"(d) In the event that Respondent resumes opera-
tions at its Cincinnati, Ohio, terminal, offer to the
former terminal employees, in the approriate unit,
their former jobs or, if those jobs no longer exist,
substantially equivalent positions.
'(e) Preserve and, upon 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
The Charging Party and the General Counsel filed motions to strike,
requesting that the Board strike from the record the affidavit of Respondent's
vice president, Marvin H. Barsky, dated October 12, 1979, along with the
attached grievance of Odell Hinkle against Respondent, dated July 28, 1978,
submitted by Respondent as Exh. A of Respondent's exceptions to the
247 NLRB No. 25
records necessary to analyze the amount of backpay
due under the terms of this Order."
2. Substitute the attached notice for that of the
Administrative Law Judge.
Administrative Law Judge's Decision, and all references to said affidavit
contained therein. Thereafter, Respondent filed a "Motion To Reopen
Record," which motion was opposed by both the General Counsel and the
Charging Party.
Under the provisions of Sec. 102.45(b) of the Board's Rules and Regula-
tions, Series 8, as amended, the post-hearing evidence proffered by Respon-
dent is not a part of the record and cannot be considered in resolving this
controversy. In addition, said affidavit is not in accord with Secs. 102.30 and
102.38 of the said Rules and Regulations. Forsyth Hardwood Company, 243
NLRB 1039, fn. 1 (1979). With regard to the motion to reopen the record, we
find that Respondent has not complied with the provisions of Sec.
102.48(d)(1) of the Board's Rules and Regulations, supra. Respondent has
failed to show that the proffered evidence was unavailable at the time of the
hearing. Reppel Steel and Supply Co.. Inc., 239 NLRB 358 (1978). According-
ly, Respondent's "Motion To Reopen Record" is hereby denied, and the
motions of the General Counsel and the Charging Party to strike from the
record the aforementioned affidavit of Marvin H. Barsky, with attached
grievance, is hereby granted. Resp. Exh. A is rejected, and the alleged facts
contained therein will not be considered a part of the record.
I The Administrative Law Judge, in sec. 111, B, par. 4, of his Decision cited
Royal Typewriter Company. a Divis'n of Litton Business Systems. Inc.. 209
NLRB 1006 (1974), noting that the Board has found violations in these
circumstances even if the union has been given 8 days' advance notice.
Member Penello dissented in pertinent part, in Royal Typewriter, supra at fn.
16, but finds the circumstances herein are sufficiently distinct to warrant a
finding that Respondent violated Sec. 8(a)(5) and (1) of the Act by its failure
to bargain with the Union over the decision to close the Cincinnati terminal.
In Royal Typewriter, supra respondent informed the union 8 days before the
decision was made to close the plant that such action was being considered.
During the six bargaining sessions in this 8-day period, the respondent
repeatedly asked the union to submit any ideas it had for resolving the
underlying problems. ABC Trans-National Transport, Inc., informed the
Union of the decision to close only after that decision had been firmly made.
' In order to remedy the violation found herein we shall also order
Respondent, if it reopens the Cincinnati terminal, to reinstate the employees
in the appropriate unit to their former jobs or, if such positions no longer
exist, to substantially equivalent positions. First National Maintenance Corp.,
242 NLRB 462 (1979).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing at which all parties had an
opportunity to present evidence and cross-examine
witnesses, the National Labor Relations Board has
found that we violated the National Labor Relations
Act, and has ordered us to post this notice. We intend
to abide by the following:
The National Labor Relations Act gives all
employees the right:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the
purpose of collective bargaining or mutual aid
and protection
240
ABC TRANS-NATIONAL TRANSPORT, INC.
To refrain from the exercise of any or all
such activities.
WE WILL NOT fail and refuse to bargain
collectively in good faith with Truck Drivers,
Chauffeurs and Helpers Local Union No. 100, an
affiliate of International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein the Union, as the exclusive
representative of our employees in the appropri-
ate unit set forth below concerning the decision to
close our Cincinnati, Ohio, terminal. The appro-
priate unit is:
All truckdrivers and dock employees employed
at our Cincinnati, Ohio, terminal, excluding all
office clerical employees, professional employ-
ees, guards and supervisors as defined in the
Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them
under Section 7 of the Act.
WE WILL, upon request, bargain in good faith
with the Union as the exclusive bargaining
representative of all employees in the appropriate
unit set forth above with respect to the decision to
close our Cincinnati, Ohio, terminal, including
any disputes with respect to the effectuation of
the remedy set forth herein, and, if an under-
standing is reached, embody it in a signed
agreement.
WE WILL pay the terminated employees their
normal wages plus interest for the period required
by the Decision and Order of the National Labor
Relations Board.
WE WILL make available to the Union the
needed economic information and forthwith be-
gin to bargain with the Union in the manner
described above.
WE WILL, in the event that we resume opera-
tions at our Cincinnati, Ohio, terminal, offer each
of the former employees in the appropriate unit
their former jobs or. if those jobs no longer exist,
substantially equivalent positions.
ABC TRANS-NATIONAL TRANSPORT, INC.
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This case was
heard at Cincinnati, Ohio, on February 5, 1979. Upon a
charge filed and served on July 25, 1978, the Regional
The appropriate unit is as follows:
All truckdrivers and dock employees employed by Respondent at its
Director for Region 9 issued the complaint in this proceed-
ing on August 14, 1978, alleging that ABC Trans-National
Transport, Inc., herein called Respondent, violated Section
8(a)(1) and (5) of the National Labor Relations Act, as
amended, by closing down its Cincinnati, Ohio, terminal
without notice or consultation with Truckdrivers, Chauf-
feurs, and Helpers Local Union No. 100, an affiliate of
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the Union.
Respondent filed an answer denying the commission of
unfair labor practices. The sole issue herein is whether
Respondent unlawfully refused to bargain with the Union
concerning its decision to close the Cincinnati terminal.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. All parties filed
briefs which have been carefully considered.
On the entire record in the case and from my observation
of the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Respondent, a Delaware corporation, is engaged in the
business of freight forwarding and the transportation of
freight by motor carrier within and between the States. It
has various terminals in the United States including a
terminal at Cincinnati, Ohio. During the 12 months preced-
ing the issuance of the complaint, Respondent received
revenues in excess of 50,000 for the transportation of
freight in interstate commerce and for the performance of
services for customers located outside the State of Ohio. The
complaint alleges, Respondent admits, and I find that
Respondent is an employer within the meaning of Section
2(2) of the Act engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
1. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The facts, which are in the main uncontroverted, are
briefly these. Respondent operates some 35 terminals in the
country including the Cincinnati terminal involved herein,
which is engaged in freight forwarding. At this terminal,
Respondent employed five truckdrivers, two dockmen, a
bookkeeper, salesman, and dock foreman.' The operation in
Cincinnati was directed by Frank Conte, the district termi-
nal manager. Respondent and the Union are parties to the
National Master Freight Agreement and the Central States
Area Local Cartage Supplemental Agreement, which was
effective from April 1, 1976, to March 31, 1979.
terminal at Cincinnati, Ohio, but excluding all office clerical employees,
professional employees, guards and supervisors as defined in the Act.
241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Frank Conte, he received a telephone call on
July 14, 1978, from A. R. Brown, a vice president of
Respondent's parent corporation, ABC Freight Forwarding,
who told Conte that a decision had been made to close the
Cincinnati terminal. Conte testified that he was told by
Brown to contact Local 100 and advise them that, as of July
21 close of business, the office terminal would be closed. He
was also instructed to confirm this information by letter.
Conte, in accordance with his orders, telephoned Robert
Sturgill, a business agent of the Union, and notified him of
the decision to close the terminal. He then wrote a letter
dated July 14 which was received by the Union on July 17.
On July 17 Respondent's counsel wrote to the Union
advising it of the Company's intention to shut down its
operation and stating that it would negotiate the effects of
the shut down on the employees if the Union so desired.
Again, on July 19, Respondent's counsel wrote the Union to
similar effect.
Conte's letter of July 14, when received by the Union, was
transmitted to Odell Hinkle, a business agent who handled
local drivers (Sturgill, whom Conte called and to whom he
wrote, had not been involved with Respondent's terminal),
and Hinkle thereupon called Respondent's counsel. The
latter testified that he told Hinkle he would discuss any
questions or any problem on which they wanted to meet
him. Although counsel infers that this offer would include
discussion or bargaining about the decision to close the
terminal, I find, in the total context of this conversation
together with the two letters of counsel dated July 17 and 19,
referring only to negotiations of the effects of the shutdown,
that the telephoned offer of counsel to discuss the aforemen-
tioned relates to effects and did not include the decision to
close. This is confirmed by the letter of Respondent's
counsel dated July 26 to the Union in which he stated: "My
offer of July 19, 1978 still stands to meet and bargain
concerning the effect of the closing on the employees."
The terminal closed on July 21 and the unit employees
were discharged on that date. Just prior thereto ABC
Freiglt Forwarding, Respondent's parent, had purchased
the Cincinnati terminal of Acme Fast Freight, a competitor
of Respondent. Upon the closing of Respondent's terminal,
Conte became terminal manager at Acme Fast Freight.
Respondent's former bookkeeper and salesman were also
employed by Acme. In its operation, Acme does not employ
truckdrivers but contracts out that function.2
B. Analysis and Conclusions
The sole issue herein is whether Respondent failed and
refused to bargain about its decision to close its Cincinnati
terminal as a result of which its employees were discharged.
It is conceded that the shutdown was for economic reasons
and further that Respondent offered to bargain concerning
the effects of the closing upon its employees.
The applicable law on this issue has been well established
since the Board's Decision in Ozark Trailers, Inc., et al., 161
NLRB 561 (1966). In that case the employer closed one of
its several plants without prior notice to, or consultation
with, the employees"authorized representative at the closed
'There is no allegation or contention that Respondent violated Sec. 8(aX3)
of the Act by closing its terminal, nor is there any claim that Acme became a
successor employer.
plant. In addition to finding that the respondent therein
violated Section 8(a)(5) by closing the plant and failing to
give the union an opportunity to bargain over the effect of
such closing on the employees, the Board also found that the
respondent there violated the Act by failing to bargain over
the decision to close the plant permanently. The Board
emphasized that it was dealing with a partial shutdown of
the employer's business, since the closing involved only one
of several of the company's plants. In the instant case, of
course, we are dealing with the shutdown of one of
approximately 35 of Respondent's terminals. Accordingly,
the principles of N.L.R.B. v. Darlington Manufacturing Co.,
380 U.S. 263 (1965), are not applicable since that decision
refers to an employer completely going out of business.
As to Respondent's duty to bargain over the decision to
close the plant permanently, the Board in Ozark stated: "In
short, we see no reason why employees should be denied the
right to bargain about a decision directly affecting terms and
conditions of employment which is of profound significance
for them solely because that decision is also a significant one
for management."
Of course in this case Respondent, by virtue of Conte's
telephone call to the Union on July 14 and his followup
letter of the same date, gave notice to the Union of its
intention to close on July 21. In this connection, it is noted
that the Board has found violations in these circumstances
even though the union has been given 8 days advance notice.
Royal Typewriter Company, A Division of Litton Business
Systems, Inc., 209 NLRB 1006 (1974). However, giving a
few days' notice, as was done in the instant case, is not in
and of itself sufficient. It is clear that the decision of
Respondent had already firmly been made. Thus, Conte, the
terminal manager, himself was not aware of the imminence
of the shutdown until he received a telephone call from a
corporate vice president on July 14. Moreover, as had been
noted above, Respondent's counsel wrote three letters, two
during the interval and one thereafter, in which he stated
Respondent's willingness to bargain concerning the effects of
the shutdown. It is clear from the actions of Respondent and
counsel that it was not offering nor was it willing to bargain
concerning a decision which had previously been made.
Thus, the Union was confronted with a fait accompli and
was not afforded the opportunity to bargain during the
critical time when such bargaining perhaps could have been
productive, that is, the period when the decision was being
considered and about to be made. In light of the post-closing
actions of Respondent's parent corporation, with regard to
Acme Fast Freight, it is conceivable that the Union may
have had some opportunity either to alter the course of
Respondent or to make some other accommodation with it.
This chance was negated by the almost precipitous shut-
down and Respondent's indications that it was willing to
bargain only concerning its effects on the discharged
employees.
I find, therefore, on the basis of the above, that Respon-
dent, by failing and refusing adequately to advise the Union
of its intention to close its Cincinnati terminal and by
unilaterally closing such terminal and discharging its em-
242
ABC TRANS-NATIONAL TRANSPORT. INC.
ployees, violated Section 8(a)(1) and (5) of the Act and
thereby failed and refused to bargain in good faith.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
4. The Union has been and continues to be the exclusive
representative of all the employees in the following appropri-
ate bargaining unit:
All truckdrivers and dock employees employed by
the Respondent at its terminal at Cincinnati, Ohio, but
excluding all office clerical employees, professional
employees, guards and supervisors as defined in the
Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(5) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
V. REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(5)
and (I) of the Act by failing and refusing to bargain in good
faith with the Union over its decision to close its Cincinnati
terminal, I recommend that Respondent be ordered to make
whole the unit employees for losses suffered as a result of the
violation. Thus, Respondent shall pay employees backpay, at
the rate of their normal wages when last in Respondent's
employ, from July 21, 1978, the date on which Respondent
closed its Cincinnati terminal and terminated its drivers and
dockmen there employed, until the occurrence of the earliest
of the following conditions:
(I) The date Respondent bargains to agreement with the
Union on those subjects pertaining to the decision to close its
Cincinnati terminal.
(2) The failure of the Union to request bargaining within 5
days of issuance of this Order, or to commence negotiations
within 5 days of Respondent's notice of its desire to bargain
with the Union.
(3) The subsequent failure of the Union to bargain in good
faith.
(4) A bona fide impasse in bargaining.
Employees are to be made whole for losses set forth above
in the manner established by the Board in F. 1W Woolworth
Company, 90 NLRB 289 (1950), with interest computed in
the manner described in Florida Steel Corporation, 231
NLRB 651 (1977).'
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(5) and (1) of the Act
by failing and refusing to bargain collectively in good faith
with the Union concerning its decision to close its Cincinnati
terminal.
' P. B. Mutrie Motor Transportation. Inc., 226 NLRB 1325 (1976); First
National Maintenance Corp.., 242 NLRB 462 (1979).
'See, generally. Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
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.
ORDER'
The Respondent, ABC Trans-National Transport, Inc.,
New York, New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively in good
faith with Truckdrivers, Chauffeurs and Helpers Local
Union No. 100, an affiliate of International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of its employees in
the appropriate unit set forth below concerning its decision
to close its Cincinnati, Ohio, terminal. The appropriate unit
is:
All truckdrivers and dock employees employed by
Respondent at its terminal at Cincinnati, Ohio, but
excluding all of its clerical employees, professional
employees, guards and supervisors as defined in the
Act.
(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.
2. Take the following affirmative action designed to
effectuate the purposes and policies of the Act:
(a) Upon request, bargain in good faith with the Union as
the exclusive bargaining representative of all employees in
the appropriate unit set forth above with resqect to the
decision to close the Cincinnati, Ohio, terminal, including
any disputes with respect to the effectuation of the Remedy
set forth herein, and, if an understanding is reached, embody
it in a signed agreement.
(b) Pay the terminated employees their normal wages in
the manner and for the period set forth in the remedy section
of this Decision.
(c) Make available to the Union the necessary economic
information and begin forthwith to bargain with the Union
as more fully described in the remedy section of this
Decision.
(d) Mail to the Union and the discharged employees
copies of the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Director for
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.
In the event that this Order is enforced by a Judgment of a United States
(Continued)
243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region 9, after being duly signed by Respondent's autho-
rized representative, shall be mailed by Respondent immedi-
ately upon receipt thereof.
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."
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
244