Central Transport

National Labor Relations Board - Board Decisions

Jan 27, 1992

306 N.L.R.B. 166 (N.L.R.B. 1992)

166
306 NLRB No. 12
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 We shall modify the recommended Order to provide for the re-
moval from the discriminatees’ personnel files any references to
their unlawful layoffs. We shall also conform the notice with the
judge’s recommended Order as modified.
3 The record shows that prior to the election, Union Representative
Hinton wrote to Central Supervisor Ray Carr, who was in charge of
the Roanoke facility, and requested recognition and bargaining,
based on the Union’s receipt of authorization cards from a majority
of the employees. Within a week of receiving the letter, Carr called
Hinton and told him that if the Union did represent a majority of
the employees, he should contact and bargain with Central Rep-
resentative Henry Bechard. Hinton requested bargaining with
Bechard and was refused.
4 Big John, during negotiations, made it clear to the Union that all
proposals had to be cleared with Central prior to any agreement. In-
deed, Big John President John Anger reported the Union’s bar-
gaining demands to Central after its first negotiation session, and re-
layed Central’s response to those demands to the Union.
5 We disagree with the Respondents’ contention that the Union en-
gaged in bad-faith bargaining by taking an inflexible stance at the
bargaining table. Rather, the evidence indicates that Union Business
Agent Michael Hinton told Big John President John Anger that each
and every item in the Union’s initial blue book proposal was nego-
Central Transport, Inc., Big John, Inc., and Central
Cartage Company, Joint Employers and
Chauffeurs, Teamsters & Helpers Local Union
No. 414, a/w International Brotherhood of
Teamsters, AFL–CIO.1 Cases 25–CA–20173–1,
25–CA–20173–2, and 25–CA–20173–3
January 27, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On July 11, 1991, Administrative Law Judge Martin
J. Linsky issued the attached decision. The Respond-
ents filed exceptions and supporting briefs, and the
General Counsel filed cross-exceptions and a sup-
porting brief, to which the Respondents filed reply
briefs.
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 as modi-
fied, and conclusions and to adopt the recommended
Order as modified.2
1. Central Transport, Inc. and Central Cartage Com-
pany, a single employer (Central), excepts on due
process grounds to the judge’s finding that, as joint
employer with Big John, Inc. (Big John), it had a duty
to bargain with the Union and that it was liable for un-
lawfully refusing to do so. As Central asserts, only Big
John was named as the employer in the representation
petition and the certification of representative. Central
argues that it therefore cannot be liable because it
never received prior notice of its duty to bargain. We
find no merit to this contention. The parties having
stipulated that Central is a joint employer with Big
John, it follows under well established Board law that
Central’s bargaining duty is equal to that of Big
John’s, notwithstanding that Central was not a partici-
pant in the representation proceedings. American Air
Filter Co., 258 NLRB 49, 53 (1981). See U.S. Pipe &
Foundry Co., 247 NLRB 139, 140, 142 (1980).
We do not find persuasive Central’s contention that
this holding is inconsistent with Alaska Roughnecks &
Drillers Assn. v. NLRB, 555 F.2d 732 (9th Cir. 1977),
cert. denied 434 U.S. 1069 (1978). There, Mobil oper-
ated an oil drilling platform and contracted with Santa
Fe to perform its drilling and production operations.
The union petitioned for an election for a unit of em-
ployees assigned to the Mobil platform, naming only
Santa Fe as the employer. While negotiations between
Santa Fe and the union were underway, Mobil termi-
nated its contract with Santa Fe. The union then re-
quested that Mobil bargain. The Board found that
Mobil was a joint employer and had a duty to bargain
over the decision to terminate the contract and its ef-
fects. The court reversed on due process grounds, find-
ing that Mobil could not be found to have unlawfully
refused to bargain because Mobil was not informed of
its alleged duty to bargain as either a successor or joint
employer and was not given an opportunity to partici-
pate in the certification proceedings. The court ex-
pressly indicated that the result might have been dif-
ferent had the union demanded recognition of Mobil
on the basis of a card majority, had Mobil intervened
in the subcontractor’s dispute with the union, or had
it been approached by the union to bargain before
Mobil terminated its contract with Santa Fe. 555 F.2d
at 736–737.
In the instant case, by contrast, the Union demanded
that Central recognize the Union and bargain on the
basis of a card majority,3 Central participated at least
indirectly in the contract negotiations,4 and Central in-
tervened directly in the labor dispute of Big John by
terminating its contract and relocating operations be-
cause of the unionization of its joint employees. Ac-
cordingly, we find unavailing Central’s argument that
this case falls within the court’s holding in Alaska
Roughnecks and the related contention that it cannot be
held liable as joint employer with Big John for refus-
ing to bargain with the Union.
2. We agree with the judge that the Respondents’
decision to terminate their contract and relocate the op-
erations at the Roanoke facility was for the discrimina-
tory purpose of retaliating against employees for se-
lecting the Union as their representative in violation of
Section 8(a)(3) and (1) of the Act. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).5 Because the
167CENTRAL TRANSPORT
tiable. Further, we note that other contracts negotiated between the
local union and other employers contained lower health and welfare
and pension rates than those contained in the blue book.
6 In their exceptions, the Respondents assert that the Union waived
its right to bargain over the decision by failing to request bargaining.
We find no merit to this contention. Since the Respondents’ decision
was based on antiunion animus, it would have been futile for the
Union to attempt to bargain meaningfully over the decision. Smyth
Mfg. Co., 247 NLRB 1139, 1171 (1980).
decision was motivated by antiunion animus, we con-
clude that the Respondents were not exempt from their
obligation to bargain with the Union over the decision
under First National Maintenance Corp. v. NLRB, 452
U.S. 666, 687, 688 (1981). Discrimination on the basis
of antiunion animus cannot serve as a lawful entrepre-
neurial decision. Strawsine Mfg. Co., 280 NLRB 553
(1986); Hydro Logistics, Inc., 287 NLRB 602 (1987),
enfd. sub nom. NLRB v. Wizard Method Inc., 897 F.2d
1233 (2d Cir. 1990).6 We therefore agree with the
judge that the Respondents violated Section 8(a)(5)
and (1) of the Act by failing to bargain over the deci-
sion and effects.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below and orders that the Respondents, Cen-
tral Transport, Inc. and Central Cartage Co., Sterling
Heights, Michigan, and Big John, Inc., Kokomo, Indi-
ana, joint employers, their officers, agents, successors,
and assigns, shall take the action set forth in the Order,
as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Offer John Melton, Robert Scott Bell, and
Garry Murdock Sr., immediate and full reinstatement
to their former positions or, if those positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed, and remove from their
files any references to the employees’ unlawful lay-
offs; and notify the employees in writing that this has
been done and that the layoffs will not be used against
them in any way.’’
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 interrogate employees with regard to
their union activity or the union activity of others.
WE WILL NOT threaten employees with plant closure
if they select a union to represent them.
WE WILL NOT lay off employees and close facilities
because the employees engage in protected concerted
activity such as selecting a union to represent them.
WE WILL NOT fail to bargain in good faith with the
Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them under the National Labor
Relations Act.
WE WILL restore matters to the status quo ante by
reopening the maintenance operation/safety lane at the
Roanoke, Indiana terminal, which we closed on Sep-
tember 1, 1989.
WE WILL offer John Melton, Robert Scott Bell, and
Garry Murdock Sr., immediate and full reinstatement
to their former positions or, if those positions no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges, and remove from our files any references to
their unlawful layoffs; and notify the employees that
this has been done and that the layoffs will not be used
against them in any way.
WE WILL, on request, bargain in good faith con-
cerning wages, hours and other terms and conditions of
employment with the Union selected by our employees
to represent them.
WE WILL make John Melton, Robert Scott Bell, and
Garry Murdock Sr., whole for any loss of pay or bene-
fits they suffered because of the discrimination against
them, plus interest.
CENTRAL TRANSPORT, INC., BIG JOHN,
INC., AND CENTRAL CARTAGE CO.
John N. Petrison, Esq., for the General Counsel.
Timothy K. Carroll, Esq., of Detroit, Michigan, for the Re-
spondents Central Transport, Inc. and Central Cartage
Company.
James H. Hanson, Esq., of Indianapolis, Indiana, for the Re-
spondent Big John, Inc.
Howard Michael Hinton, Business Agent, for the Charging
Party.
168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The service fee was 4 percent of costs up to $1 million in a year
and 6 percent of the amount above $1 million in a year.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On Octo-
ber 2, 1989, October 19, 1989, and May 8, 1990, a charge,
a first amended charge, and a second amended charge were
filed by Teamsters 414 (the Union), against Central Trans-
port, Inc. in Case CA–20173–1.
On October 2, 1989, October 19, 1989, and May 8, 1990
a charge, a first amended charge, and a second amended
charge were filed by the Union against Big John, Inc., in
Case 25–CA–20173–2.
On May 8, 1990, a charge was filed by the Union against
Central Cartage Company in Case 25–CA–20173–3.
On June 29, 1990, the National Labor Relations Board, by
the Regional Director for Region 25, issued a consolidated
complaint.
It is alleged in the consolidated complaint, which was tried
before me in Kokomo, Indiana, on March 4, 5, and 6, 1991,
that Central Transport and Central Cartage are a single em-
ployer, and that Central Transport and Central Cartage, a sin-
gle employer (Central) is a joint employer with Big John,
and that these three entities violated Section 8(a)(1), (3), and
(5) of the National Labor Relations Act (the Act), by engag-
ing in unlawful interrogation, threats, layoffs, and by failing
to bargain in good faith with the Union. In its answer Central
Transport and Central Cartage denied it violated the Act in
any way as did Big John in its answer.
Upon the entire record in the case, to include posthearing
briefs timely filed by the General Counsel, counsel for Cen-
tral, and counsel for Big John, and upon my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material Central Transport and Central Cart-
age have been corporations duly organized under, and exist-
ing by virtue of, the laws of the State of Michigan.
At all times material Big John has been a corporation duly
organized under, and existing by virtue of, the laws of the
State of Indiana.
Central Transport, Central Cartage, and Big John admit,
and I find, that they are, and have been at all time material,
employers engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local 414 (the Union) is now, and has been at
all times material, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
Big John is a personnel leasing corporation. It leases em-
ployees to Central. In this case we are concerned only with
Big John’s lease of employees to work as mechanics at a ga-
rage (terminal) in Roanoke, Indiana, which is near Ft.
Wayne, Indiana.
Central Transport is engaged in the interstate transpor-
tation of freight as is Central Cartage. The basic difference
between Central Transport and Central Cartage is that Cen-
tral Transport moves freight between cities and over great
distances whereas Central Cartage moves freight from the
terminal, where it is delivered by Central Transport, to des-
tinations within 60 miles or so of the terminal. Central
Transport and Central Cartage are both subsidiaries of Centra
Inc. The mechanics leased by Central from Big John to work
at the Roanoke, Indiana terminal did maintenance work on
Central Cartage tractors and operated a safety lane or check
lane for Central Transport tractors and trailers.
For the purposes of this litigation Central Transport and
Central Cartage (Central) are stipulated by the parties to be
a single employer and Central is stipulated by the parties to
be a joint employer with Big John.
Central has many terminals. The one in Roanoke, Indiana,
is just one of them. In early 1988 Central decided to beef
up its Roanoke terminal putting in a maintenance
operation/safety lane as described above and hired mechan-
ics.
Ray Carr, an admitted statutory supervisor of Central,
hired the mechanics at the Roanoke, Indiana terminal. It was
Ray Carr who supervised the mechanics in their job. The
mechanics’ paychecks were received, however, from Big
John. The arrangement between Central and Big John was
that Big John paid the mechanics, withheld taxes, etc., and
passed on all costs of the personnel to Central who reim-
bursed Big John in toto and added a fixed percentage of
whatever that amount was as Big John’s service fee.1
When Robert Scott Bell, Garry Murdock Sr., and Joseph
Lineman were hired in late 1987 and early 1988 by Ray
Carr, Carr told each of them separately that the shop was
nonunion and if a union was brought in the shop would
close. I found Bell, Murdock, and Lineman to be credible
witnesses.
Ray Carr admits he told the employees he hired that the
shop was nonunion but denies he told the employees when
he hired them that if the shop went union it would close.
Carr’s statements to Bell, Murdock, and Lineman, are not
alleged as violations of the Act and fall outside the 10(b) pe-
riod in any event. However, they demonstrate antiunion ani-
mus and are considered by me in judging the motivation of
Central in closing the facility in September 1989 after the
Union was voted in by the employees.
In mid-1988 Joseph Lineman was transferred to a one-man
shop in Indianapolis, Indiana. In April 1989 one of the me-
chanics quit and was not replaced. In the spring of 1989,
therefore, there were five mechanics in the Roanoke garage.
They were Jerry Burger, Duane Holmquest, Robert Scott
Bell, John Melton, and Garry Murdock Sr.
In April 1989, three of the five mechanics signed union
authorization cards.
They were Robert Scott Bell, John Melton, and Garry
Murdock Sr. The Union sent a letter to Ray Carr at Big John
advising Carr that the Union represented a majority of the
employees and demanding recognition.
169CENTRAL TRANSPORT
B. The 8(a)(1) Interrogation by Statutory Supervisors
Ray Carr and Jim Bowen
Following receipt of the letter from the Union demanding
recognition referred to above, Ray Carr, who was the garage
supervisor and the immediate supervisor of the mechanics,
unlawfully interrogated several employees in violation of
Section 8(a)(1) of the Act. Carr asked Bell if he had signed
a union authorization card and Bell said no. Carr also called
Murdock if he had signed a union authorization card.
Murdock said no. Carr claimed he asked the employees if
they signed a card because he thought the Union was trying
to put one over on him. None of the three persons who
signed authorization cards, Bell, Murdock, or Melton, were
open union supporters in the sense that they openly professed
to management their support for the Union. Hence, Carr’s in-
terrogation of them was unlawful. See Rossmore House, 269
NLRB 1176 (1984).
Jim Bowen was the terminal manager at the Roanoke fa-
cility. He is no longer with Central and did not testify before
me. John Melton, one of the employees who signed a union
authorization card, credibly testified that Bowen asked him
if he had signed an authorization card and, when Melton said
no, Bowen asked him who did. On the day of the election,
May 19, 1989, Bowen again asked Melton, who was the
election observer for the Union, who had voted for the
Union. This was unlawful interrogation in violation of Sec-
tion 8(a)(1) of the Act.
The Union won the election by a vote of 3–2 and was cer-
tified on May 30, 1989, as the collective-bargaining rep-
resentative of the mechanics.
C. The 8(a)(1) Threats by Statutory Supervisor
Ray Carr
Before the election, which the Union won, Ray Carr told
Jerry Burger, who is still with Big John in a garage in Koko-
mo, Indiana, that if the Union won the election the shop
might ‘‘possibly’’ close. Carr did not say it definitely would
close just that it was possible that it might close. This was
before the election and is a clearcut threat in violation of
Section 8(a)(1) of the Act. See Norco Products, 288 NLRB
1416 (1988).
Carr also told Robert Scott Bell before the election that if
the Union was voted in the shop would close. Again, a viola-
tion of Section 8(a)(1) of the Act even though Carr admits
he said that to Bell but only after Bell approached him and
asked him man to man what Carr’s opinion was. Subsequent
to the election Carr told Bell that the shop would close be-
cause the employees selected the Union to represent them.
These are clearcut threats in violation of Section 8(a)(1) of
the Act. Carr claims it was merely his opinion that the shop
would close because unions increase costs but Carr was later
promoted to regional manager and Carr’s father was at the
time of the threats a regional manager for Central and Ray
Carr was the person who had personally hired the mechanics.
Carr’s threats were more than mere personal expressions of
opinion. Interestingly enough, his threats of shop closure
turned into reality.
D. Failure to Bargain in Good Faith, Closure of
Facility, and Layoff of Bell, Murdock, and Melton
On July 14, 1989, following Board certification of the
Union as the collective-bargaining representative of the em-
ployees the Union, by Business Manager Michael Hinton,
met with John Anger, president of Big John.
Hinton gave a copy to Anger of the then-current uniform
Indiana automotive maintenance agreement between the Indi-
ana Conference of Teamsters and the Indiana Motor Carriers
Labor Relations Association and the Motor Carriers Labor
Advisory Council. This agreement is commonly referred to
as the blue book. Hinton told Anger at this first and only
face-to-face negotiating session that the Union wanted the
pension plan and health and welfare plan under the master
agreement (blue book) to be applicable to the mechanics at
the Roanoke facility. Hinton told Anger that he could, how-
ever, agree to a wage rate lower then that called for in the
blue book.
Anger explained to Hinton that he would have to talk to
Central since Central would bear the burden of increased
costs since Big John was a personnel leasing company which
passed costs on to Central. Thereafter, Anger communicated
with Dennis Toca, vice president of maintenance for Central
Transport. Anger and Toca concluded that the Union’s de-
mand would cost Central Transport, the joint employer with
Big John, an additional $200 per week per man or $52,000
a year to operate the garage because of the increased pension
and health and welfare costs of the plan demanded by the
Union. Toca made the decision to close the shop in late Au-
gust 1989. Anger told Hinton as a fait accompli that the shop
would close on September 1, 1989, when Anger read to Hin-
ton Toco’s letter to Anger which stated:
I am in receipt of your letter of August 7, 1989 rel-
ative to increases you are seeking for your employees
in the Ft. Wayne Shop.
We are experiencing a severe downturn in overall
business in both the truckload and LTL areas. Con-
sequently, we are looking to keep costs in line and cut
whenever necesary.
Therefore, we cannot agree to your request for
$200.00 per week per man. We will be forced to dis-
continue using Big John Inc. in Ft. Wayne effective
September 1, 1989 and will undoubtedly absorb the
work in other shops in an effort to keep costs in line.
On September 1, 1989, the shop closed. Toca’s letter was
obviously the announcement of a fait accompli and not an
offer to negotiate or bargain. Employees Robert Scott Bell,
Garry Murdock Sr., and John Melton were laidoff. Employee
Jerry Burger was transferred to the Kokomo terminal. Em-
ployee Duane Holmquest had previously been transferred to
Indianapolis to replace employee Joseph Lineman who had
quit. See section III, D, below.
After the facility was closed—just like Carr had threatened
would happen if a union was brought in by the employees—
the Union on September 8, 1989, requested effects bargain-
ing. Big John bypassed the Union entirely and in late Octo-
ber 1989 and February 1990 offered positions to the three
laid-off employees in Zion, Illinois, and Warren, Ohio, re-
170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spectively. No moving costs were offered to the employees
who turned down the offers.
It is clear to me that the joint employers—Central and Big
John—violated Section 8(a)(1) and (5) by failing to bargain
in good faith for a contract and in closing the facility on
September 1, 1989, to retaliate against the employees for se-
lecting union representation.
The joint employers simply rejected the first contract pro-
posal made by the Union, closed the facility, and laid off the
employees. The duty to bargain in good faith requires more.
At a minimum the parties could bargain to impasse at which
point the employer could unilaterally implement its last best
offer. The joint employers took the position that since they
found the original union proposal regarding pension and
health and welfare to be too costly that they would simply
close the facility, lay off the employees, and have the work
previously done by the mechanics at the Roanoke garage
done elsewhere. Following the closure of the Roanoke garage
operation Central opened the facility in Kokomo where me-
chanic Jerry Burger went to work. As before, Burger was
leased to Central by Big John. Central employs a number of
what it calls ‘‘war wagons,’’ which is a mechanic’s shop on
wheels. Central began to route one of its ‘‘war wagons’’
through Roanoke to do some of the work the Roanoke me-
chanics did. In other words, the work done by the mechanics
at Roanoke was relocated and done by other employees.
The garage at the Roanoke facility was closed, that is, the
maintenance operation/safety lane was shut down and the
mechanics laid off solely because the employees chose union
representation. The closure was a subject which had to be
negotiated with the Union and the failure to negotiate con-
cerning the closure of the facility with the Union was a vio-
lation of Section 8(a)(1) and (5) of the Act. See First Na-
tional Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). I
note that credible evidence at the hearing reflects that the
mechanics were busy up to the closing of the shop on Sep-
tember 1, 1989, and, indeed, were working overtime. As the
Board noted in its recent decision in Dubuque Packing Co.,
303 NLRB 386 (1991), an employer’s decision to relocate
work is a mandatory subject of bargaining if the relocation
of unit work is unaccompanied by a basic change in the na-
ture of employer’s operation and labor costs are decisive in
the decision to relocate the work.
The joint employers also violated Section 8(a)(1) and (5)
by bypassing the Union which had requested effects bar-
gaining and dealing with the laid-off employees directly in
October 1989 and February 1990 regarding employment else-
where.
The layoff of Robert Scott Bell, Garry Murdock Sr., and
John Melton was a violation of Section 8(a)(3) of the Act
because it was done because the employees selected a union
to represent them. Their layoff was accurately predicted by
Ray Carr when the garage first become operational.
E. Layoff of Joseph Lineman
Joseph Lineman, who at no time was involved in union or
other protected concerted activity, was hired as a mechanic
in the Roanoke garage by Ray Carr. Several months later,
Lineman was voluntarily transferred to the Indianapolis, Indi-
ana terminal.
In May 1989, Lineman told Ray Carr that he was quitting
because he wanted to return to the Ft. Wayne area. Carr told
him to hold off and he would see if he could transfer Line-
man back to the Roanoke terminal which is near Ft. Wayne.
Carr called Dennis Toca, vice president for maintenance
for Central. Toca turned down Carr’s request to return Line-
man to the Roanoke terminal because of the union situation
and because he was annoyed that Lineman was ready to quit
after Toca had personally gone to bat for Lineman after
Lineman had negligently damaged a vehicle at the Indianap-
olis terminal. Carr told Lineman that because of the union
situation Carr could not return Lineman to Roanoke. Line-
man, thereafter, on June 9, 1989, voluntarily quit and re-
turned to the Ft. Wayne area.
It is speculation at best to conclude that absent union ac-
tivity at the Roanoke facility that Lineman would have been
reassigned back to the Roanoke garage. I note that one me-
chanic had quit the Roanoke garage around this time and had
not been replaced.
Lineman planned on voluntarily quitting and did volun-
tarily quit. There was evidence that Lineman had a job lined
up in the Ft. Wayne when he first told Carr he was quitting
and Carr told him to hold off. By the time Carr told Lineman
that he could not reassign Lineman back to Roanoke the job
Lineman had lined up in the Ft. Wayne area was gone but
Lineman found another job. Lineman was free to continue
working at the Indianapolis terminal but freely chose to quit.
Considering all the evidence, I do not find that Lineman’s
voluntary resignation was the equivalent of a constructive
layoff or discharge. Accordingly, the Act was not violated
when Lineman chose to voluntary resign on June 9, 1989.
F. Summary
What happened in this case is very simple. Central hired
mechanics to work in its Roanoke terminal. The mechanics
would be employees leased from Big John. A number of the
employees were told by Ray Carr, a Central supervisor, who
hired them that the shop was nonunion and if a union was
brought in the shop would close.
A majority of the mechanics brought a union in and the
Union, at its first negotiating session with Big John, pre-
sented a proposal with a more costly pension and health and
welfare package then currently in place. Big John commu-
nicated that proposal to Central who closed the facility, laid
off three mechanics, and relocated the work done by them
to others, i.e., put a mechanic at its Kokomo terminal, re-
routed the ‘‘war wagon,’’ a mobile shop, to Roanoke, and
employed a safety lane elsewhere in its system.
Precisely what Ray Carr predicted would happen did hap-
pen. The employees exercised a federally guaranteed right to
select representation by a union and in a few months the fa-
cility closed and they were out of work. As joint employ-
ers—Central and Big John—had a duty not to retaliate or
discriminate against those employees for exercising their
rights and they had a duty to bargain in good faith with the
Union.
IV. REMEDY
The remedy for the unlawful interrogation and threats is
a cease-and-desist order and the posting of an appropriate no-
tice.
The remedy for the closing of the shop in Roanoke and
the laying off of John Melton, Robert Scott Bell, and Garry
Murdock Sr., since done for antiunion reasons and to retali-
171CENTRAL TRANSPORT
2 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.
3 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.’’
ate against the employees of selecting a union to represent
them, is a cease-and-desist order, the posting of a notice, and
a make-whole remedy. The make-whole remedy should in-
clude an order to restore matters to the status quo ante, i.e,
the way they were before the unlawful acts. This mean that
Central should reopen the maintenance operation/safety lane
at the Roanoke terminal, which terminal at least at the time
of the hearing was still owned and occupied by Central. Ac-
cordingly, restoring matters to the status quo ante will not be
unduly burdensome to Central. See Lear Siegler, Inc., 295
NLRB 857 (1989); Reece Corp., 294 NLRB 448 (1989).
Melton, Bell, and Murdock should be reinstated with back-
pay.
Central, at the hearing and in its brief, refers to the cases
of Alaska Roughnecks & Drillers Assn v. NLRB, 555 F.2d
732 (9th Cir. 1977) and International House v. NLRB, 676
F.2d 906 (2d Cir. 1982). In the instant case there can be no
due-process argument as permitted in the aforementioned
cases that treating Central and Big John as joint employers
would be unfair in some way. Central and Big John were
both equally aware of the union organizing effort and what
took place during negotiations.
The failure of the joint employers—Central and Big
John—to bargain in good faith with the Union can be rem-
edied by an order to bargain in good faith with the Union
and the posting of a notice.
CONCLUSIONS OF LAW
1. Central Transport, Inc. Big John, Inc., and Central Cart-
age Company, Respondents, are employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Central Transport, Inc., and Central Cartage constitute
a single employer and is a joint employer with Big John, Inc.
3. When the Respondents, through Ray Carr and Jim
Bowen, unlawfully interrogated employees about their union
activity they violated Section 8(a)(1) of the Act.
4. When the Respondents, through Ray Carr, threatened
plant closure if the employees selected a union to represent
them they violated Section 8(a)(1) of the Act.
5. When the Respondents closed the maintenance
operation/safety lane at the Roanoke terminal because of
antiunion bias and without giving prior notice and oppor-
tunity to the Union to bargain concerning closure they vio-
lated Section 8(a)(1) and (5) of the Act.
6. When the Respondents laid off John Melton, Robert
Scott Bell, and Garry Murdock Sr., and closed the mainte-
nance operation/safety lane at the Roanoke terminal they vio-
lated Section 8(a)(1) and (3) of the Act.
7. The unfair labor practices of the joint employers de-
scribed above affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondents, Central Transport, Inc. and Central Cart-
age Company, Sterling Heights, Michigan, and Big John,
Inc., Kokomo, Indiana, joint employers, their officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees with regard to their union ac-
tivity or the union activity of others.
(b) Threatening employees with plant closure if they select
a union to represent them.
(c) Closing any of its facilities or laying off employees be-
cause of antiunion bias.
(d) Failing to bargain in good faith with the Union.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them under the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Restore matters to the status quo ante by reopening the
maintenance operation/safety lane at the Roanoke terminal
which was closed on September 1, 1989.
(b) Offer John Melton, Robert Scott Bell, and Garry
Murdock, Sr., full reinstatement to their former positions or
if those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority and other rights
and privileges.
(c) Make John Melton, Robert Scott Bell, and Garry
Murdock, Sr. whole for any loss of pay and other benefits
suffered by them commencing from September 1, 1989, the
date of their unlawful layoff. Backpay to computed in the
manner set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest to be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
(d) On request, bargain in good faith concerning wages,
hours, and other terms to conditions of employment with the
Union.
(e) 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 analyze the
amount of backpay due under the terms of this Order.
(f) Post at its facility in Roanoke, Indiana, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the notice,
on forms provided by the Regional Director for Region 25,
after being signed by the Respondents’ authorized representa-
tive, shall be posted by the Respondents immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondents to ensure that the notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director in writing, within 20 days
from the date of this Order what steps the Respondent has
taken to comply therewith.