Co-Op Trucking Co., Inc.

National Labor Relations Board - Board Decisions

Mar 21, 1974

209 N.L.R.B. 829 (N.L.R.B. 1974)

CO-OP TRUCKING COMPANY 829
Co-Op Trucking Company , Inc., and C & E Ware-
house, Inc., and S & S Trucking Co., a Partnership
and Truck Drivers, Chauffeurs and Helpers Local
No. 100 , affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America . Case 9-CA-7701
March 21. 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On September 25, 1973, Administrative Law Judge
George L. Powell issued the attached Decision in this
proceeding finding that Respondents had not en-
gaged in certain unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety. Thereafter, the General
Counsel filed exceptions to the Administrative Law
Judge's Decision and a supporting brief, and Res-
pondents filed answering briefs.
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 conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
GEORGE L. POwr:LL, Administrative Law Judge: The
issues in this case are:
1. Whether Respondent C & E Warehouse, Inc., is the
alter ego of Respondent Co-Op Trucking Company, Inc.,'
and, if so, is in violation of Section 8(a)(5) of the National
Labor Relations Act, as amended, herein called the Act (29
U.S.C. 151, et seq.), for refusing to honor the collective-
bargaining agreement between Respondent Co-Op and the
Union.
2. Whether Respondent S & S Trucking Co. is a
successor to Respondent Co-Op and, as such, is in
i Name amended at the hearing at which time "Clyde Shorten, An
Individual" was dismissed from the complaint on motion of Counsel Rouse
violation of Section 8(a)(5) of the Act for refusing to
recognize and bargain with the Union.
3. If Respondent S & S is a successor to Respondent
Co-Op, whether it violated Section 8(a)(5) of the Act by
unilaterally establishing the wages, fringe benefits, and
working conditions of its employees.
4. Whether Respondent S & S violated Section 8(a)(3)
of the Act by refusing to hire certain employees of
Respondent Co-Op; and
5. Whether Respondents violated Section 8(a)(l) of the
Act by certain statements of admitted supervisory person-
nel.
For the reasons hereinafter set forth, I find: (1)
Respondent C & E is not the alter ego of Respondent Co-
Op; (2) Respondent S & S is not the successor to
Respondent Co-Op and does not violate Section 8(a)(5) of
the Act by refusing to recognize and bargain with the
Union or by unilaterally establishing the wages, fringe
benefits, and working conditions of its employees; and (3)
the General Counsel has not established by a preponder-
ance of the evidence that Respondent S & S violated
Section 8(a)(1) or 8(a)(3) of the Act. Accordingly, I will
dismiss the complaint in its entirety.
The Case
Truck Drivers, Chauffeurs and Helpers Local Union No.
100, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, filed a charge on April 9, 1973,
amended on June 11, 1973, charging that Co-Op Trucking
Company, Inc., herein called Respondent Co-Op or Co-
Op, Clyde Shorten, an Individual, C & E Warehouse, Inc.,
herein called Respondent C & E or C & E, and S & S
Trucking Co., a Partnership, herein called Respondent S &
S,2 have engaged in and are engaging in unfair labor
practices as defined in the Act. These charges were filed
with the National Labor Relations Board, herein called the
Board. They resulted in a complaint and notice of hearing
being issued June 14, 1973, on behalf of the General
Counsel of the Board, by the Acting Regional Director of
Region 9 of the Board alleging that Respondents had
engaged in unfair labor practices within the meaning of
Section 8(a)(l), (3), and (5) of the Act.
Respondents denied the essential allegations that they
violated the Act.
With the General Counsel and each Respondent being
represented by counsel, the case was tried before me in
Cincinnati, Ohio, on July 31 and August 1, 1973. The
parties were given full opportunity to present evidence and
examine and cross-examine witnesses. Counsel for Respon-
dents S & S Co-Op and C & E filed briefs on August 23,
1973, and counsel for General Counsel filed a brief on
August 22, 1973.
Upon the entire record including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs of the parties, I make the following:
2 At the hearing Respondent S & S was doing business as S & S Delivery
Co., a Partnership.
209 NLRB No. 138
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
1. JURISDICTION
A. Respondent Co-Op is an Ohio corporation engaged
until March 30, 1973, in the operation of a trucking
business in Cincinnati, Ohio.
During the 12-month period preceding March 30, 1973,
which is a representative period, Respondent Co-Op
performed trucking services, valued in excess of $50,000,
for enterprises located in Cincinnati, Ohio, each of which
annually sells and ships goods, in interstate commerce,
valued in excess of $50,000, directly from their respective
Cincinnati, Ohio, locations to points outside the State of
Ohio.
B. Respondent C & E is an Ohio corporation engaged
in the operation of a trucking and warehousing business at
Cincinnati, Ohio.
During the past 6 months, Respondent C & E performed
services, valued in excess of $25,000, for enterprises located
in Cincinnati, Ohio, each of which annually sells and ships
goods, in interstate commerce, valued in excess of $50,000,
directly from their respective Cincinnati, Ohio, locations to
points outside the State of Ohio. On a projected basis,
therefore, Respondent C & E will annually perform such
services, valued in excess of $50,000, for enterprises located
in Cincinnati, Ohio, each of which annually sells and ships
goods, in interstate commerce, valued in excess of $50,000
directly from their respective Cincinnati, Ohio, locations to
points outside the State of Ohio.
C. Respondent S & S is a partnership engaged in the
operation of a trucking and warehousing business in
Cincinnati, Ohio. since on or about March 1, 1973.
During the period from April 1, 1973, through May 31,
1973, Respondent S & S performed trucking and ware-
housing services, valued in excess of $10,000, for enterpris-
es located in Cincinnati, Ohio, each of which annually sells
and ships goods, in interstate commerce, valued in excess
of $50,000, directly from their respective Cincinnati, Ohio,
locations to points outside the State of Ohio. On a
projected basis, therefore, Respondent S & S will annually
perform such services, valued in excess of $50,000, for
enterprises located in Cincinnati, Ohio, each of which
annually sells and ships goods, in interstate commerce,
valued in excess of $50,000, directly from their respective
Cincinnati, Ohio, locations to points outside the State of
Ohio.
I find that, at all times material herein, each of the
Respondents are and have been "employers" within the
meaning of Section 2(2) of the Act, engaged in "com-
merce" and in operations "affecting commerce" as defined
in Section 2(6) and (7) of the Act, respectively.
D. At all times material herein, the Union is and has
been a labor organization as defined in Section 2(5) of the
Act.
There is no issue concerning jurisdiction.
II. ME ALLEGED UNFAIR LABOR PRACTICES
Background
During the summer of 1972, the Union commenced an
organizing campaign among the 32 employees of Respon-
dent Co-Op. In connection therewith, a 3-week strike took
place, supported by a majority of such employees. Six,
however, refused to honor the strikers' picket lines and
continued working throughout.
Thereafter, in Case 9-RM-673, a Board-conducted
election was held on September 1, 1972. As a result, the
Union was certified for a unit of truckdrivers and
dockworkers on September 12, 1972. Negotiations for a
contract commenced shortly and ultimately proved suc-
cessful . Because of alleged financial difficulties on the part
of Respondent Co-Op, however, the effective date for this
contract was postponed until either late December 1972 or
early January 1973.
A. Respondent Co-Op
Clyde Shorten was the president and sole stockholder of
Co-Op. On March 23 , 1973, according to his credited
testimony , he called his employees to a meeting and told
them Co-Op was going out of business as of March 30,
1973, because he was losing money due to the high wage
rates of the Union . In February or the first of March 1973,
Clyde Shorten had told George Shorten , general manager
of Co-Op, and Jack Savage , dispatcher of Co-Op, that he
would go out of business before license renewal time. Jack
Savage, on March 1 , 1973, quit and commenced a
competitive hauling venture , later known as S & S , renting
three trucks from Co-Op and taking with him some Co-Op
customers . On March 30, 1973, Co-Op closed its business.
The premises at 444 Third Street in Cincinnati, Ohio, were
subleased to S & S, office and miscellaneous equipment
was sold to S & S, and Clyde Shorten leased to S & S some
20 trucks which he controlled . S & S also received from
Co-Op the right to use free the PUCO license until Clyde
Shorten recalled it.
B. Respondent C & E
Clyde Shorten was the president and sole stockholder of
C & E. Before Co-Op closed down, C & E was only a
warehouse with two warehouse employees. No C & E
employee drove a truck for C & E except Clyde Shorten
who did so occasionally. Co-Op made deliveries for C & E
for which C & E paid Co-Op. When Co-Op closed, C & E
made its own deliveries by renting 2-1/2 trucks per day
from S & S. On January 1, 1973, C & E commenced doing
maintenance work for Co-Op and was paid for this by Co-
Op. After Co-Op went out of business and trucks were
leased to S & S, C & E continued doing maintenance work
on the trucks for which it was paid by S & S.
On April 9, 1973, C & E bought a tractor-trailer to make
intrastate over-the-road hauls to Dayton and Columbus,
Ohio, for two customers. Two former Co-Op dnvers were
hired to do this.
While Co-Op was operating, Clyde Shorten was its
president, his wife was its vice president , and his son was
the secretary and treasurer. At C & E, Clyde Shorten is
president and his wife is vice president and secretary and
treasurer. His son holds no position at C & E. On April 23,
1973, his daughter was hired at C & E to replace the office
girl there. George Shorten is a nephew of Clyde Shorten.
CO-OP TRUCKING COMPANY
The Co-Op union contract was never applied to C & E
employees including its drivers.
When Co-Op was in business, its annual hauling income
was about $600,000 of which about $36,000 , or 6 percent,
was for hauling for C & E.
Discussion and Conclusion
The General Counsel argues that the above facts prove
that Respondent C & E is the alter ego of Co-Op with all
the attendant obligations thereof-namely, maintaining
the Co-Op union contract . I find no merit in this position.
Both Co-Op and C & E were owned by Clyde Shorten
and he was the sole stockholder of each but they were
individual corporations engaged in different businesses. By
no means does it appear that C & E took over the
operations of Co-Op . It only made its own deliveries which
had amounted to but 6 percent of the annual business of
Co-Op when Co-Op made the deliveries . Co-Op had no
tractor-trailer operation when it was in existence so it
cannot be said that C & E engaged in what Co-Op had
been doing to that extent when C & E bought the tractor-
trailer . I find that Co-Op went out of business of hauling
and its business was not taken over by C & E as an alter
ego. There was some evidence that Co-Op did some
warehousing , but the cookies and furniture stored there
was too insignificant to be able to characterize Co-Op as
being engaged in the business of warehousing.
The General Counsel argues that C & E is the alter ego of
Co-Op for part of Co-Op's business and that S & S is the
successor for the remainder or a part of the remainder of
Co-Op 's business . But the facts show no transfer by Co-Op
of its hauling business to C & E . All C & E did was haul its
own warehoused goods. Co-Op simply went out of
business. It did not spinoff parts of its business to others.
Accordingly , I find that C & E is not the alter ego of Co-Op
and is not bound to apply the terms of the contract
between Co -Op and the Union.
C. Successorship of S & S
The General Counsel argues, and the theory of the
complaint is, that Respondent S & S is the successor to
Respondent Co-Op and hence must initially consult with
the Union , the employees' bargaining representative,
before it fixes terms of employment under the decision of
the United States Supreme Court in NLRB. v. Burns, 406
U.S. 272, 294-295, (1972). The first question to be resolved
is whether S & S is the successor.
S & S is a partnership composed of George Shorten and
Jack Savage , the former general manager and dispatcher,
respectively , of Co-Op. S & S commenced operations on
approximately March 1 , 1973, when Savage and three
other former Co-Op drivers took away from Co-Op and
began servicing some of Co-Op's former accounts, using
three trucks leased from it. George Shorten joined Savage a
month later on April 1. 1973, and the following day, April
2, S & S subleased for 1 year from Clyde Shorten, as
president of Respondent C & E, the premises at Third and
John Streets , Cincinnati , Ohio (former dock of Co-Op);
secured the right to use Co-Op's Ohio PUCO license free
until Clyde Shorten wanted it back ; and leased 20 trucks
831
from Clyde Shorten , individually . All trucks used by S & S
had the name of Co-Op painted out and were unmarked.
On March 30, 1973, S & S bought and paid $700 for some
office equipment and other items.
In S & S's operation , almost all of its customers were
former customers of Co-Op, yet S & S 's smaller operation
only had about one-third of Co-Op's former customers.
Anyone was free to compete for Co-Op's former custom-
ers. Anyone could have obtained Co-Op 's phone number.
S & S asked the telephone company to assign Co -Op's old
phone number to it , and this request was granted. S & S
had 9 drivers out of 16 (including George Shorten and Jack
Savage) who were former Co-Op employees.
Co-Op had had about 32 employees when it went out of
business . S & S's method of operations was similar to that
of Co-Op's.
The General Counsel argues that these facts establish S
& S as the successor to Co-Op, citing for this proposition
cases of purchasing employers . For example , in Randolph
Rubber Company, Inc., 152 NLRB 496, Royal Brand Cutlery
Company, 122 NLRB 901, and Webster Wood Industries,
Inc., 169 NLRB 67, all cited by the General Counsel, the
successor company was a purchaser. And in Maintenance
Incorporated, 145 NLRB 1299, also cited , the company
found to be a successor had ". . . entered its bid for the
maintenance work . . . to conduct the same servicing
operation that was formerly performed . . . [by the one
that ceased operations]." Roblik, Inc., 145 NLRB 1236,
and Johnson Ready Mix Co., 142 NLRB 437, also involved
purchasers of the business.
The cases cited by the General Counsel all have the
essential ingredient of a right to successorship, an ingredi-
ent not found in the instant case . The term "succession," as
defined by the dictionary in the sense used by the Board
and the courts, involved a "right" of succession such as
would be found in a purchaser or a bidder of a business. I
find the above facts do not establish a succession of
ownership at all. Apparently anyone could and did take
over as much of Co-Op's old business as he was able to do
free from any veto or approval by Co-Op. Accordingly, the
complaint will be dismissed as to Respondent S & S,
insofar as the allegation of violations of Section 8(aX5) of
the Act are concerned , and it is unnecessary to reach the
point established in Burns, supra. In any event , Respondent
under the doctrine of Burns, supra, was under no obligation
to first consent with the Union before setting its wage rates
different from those prevailing under the Union's contract
with Co-Op.
D. The Allegations of 8(a)(3) Violations
The complaint alleged that Respondent S & S discrimi-
nated against Joseph Kahny , Larry Kelley, and other
employees of Respondent Co-Op by failing and refusing to
offer them employment with S & S because of their
membership in, sympathy for, and activities on behalf of
the Union in order to discourage membership in the
Union.
No former employee of Co-Op, who applied for
employment with S & S after Co-Op went out of business,
was refused hire by S & S . Kahny and Kelley did not seek
employment with S & S. S & S had told several former Co-
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Op employees its terms were less than the Union's terms
and it was going to begin as a nonunion shop. Any new
employer in the hauling industry must begin as a nonunion
shop or violate the Act. Being no successor, there was no
obligation for S & S to hire under the terms of the union
contract with Co-Op. Nor was S & S under any obligation
to seek out all former employees of Co-Op and to offer
them jobs or to hire only from among them. S & S was not
put to the test of whether it would hire any former Co-Op
employee who was active in the Union.3 Accordingly, the
General Counsel has not established by a preponderance
of the evidence that Respondent S & S violated Section
8(a)(3) of the Act and this allegation will be dismissed.
E. The Allegations of Independent 8(a)(1) Violations
The General Counsel alleged that Respondent S & S
violated Section 8(a)(1) of the Act by:
1. Jack Savage telling an employee that Respondent S
& S would not recognize or bargain with the Union. As S &
S is not a successor to Respondent Co-Op, and is under no
duty to recognize or bargain with the Union, this statement
is no violation of the Act and this allegation will be
dismissed; and
2. George Shorten telling an employee that Respondent
S & S would only employ those who were against the
Union. The General Counsel called witness William
LeGendre for evidence on this point. His testimony, which
is credited, is that George Shorten, on approximately
March 19, 1973, invited him to a meeting of Co-Op
employees on Sunday following the meeting of March 23,
1973, in which Clyde Shorten told the employees he was
going out of business. When George Shorten invited him to
the Sunday meeting, LeGendre asked, "who all is going to
be there?" George Shorten replied, "Just the fellows that
we want to come to work for us, and the fellows that we are
damn sure are against the union because we don't want
this trouble again."
This is the only time the word "union" was used. As
background in analyzing the statement, the "trouble" with
the Union was the high wage rates. And George Shorten
did not say that S & S would not hire former employees of
Co-Op who were for the Union. Rather. he said, in effect,
that he wasn't inviting anyone to the meeting who was for
s George Shorten credibly testified that Respondent S & S had asked 12
or 13 of Co-Op's 32 former employees to come to work for S & S but had
not asked 19 or 20 others. Specifically, Kahny was not asked because of his
record of customer trouble, failure to promptly turn in COD collections,
and foulmouthing, and Kelley was not asked because of his recent back
operation and the fact that easier jobs had to be assigned him by Co-Op
when he returned from the operation on his back The General Counsel
elicited no evidence that Respondent S & S hired someone with a bad back
the Union. A discrimination in inviting an employee to a
meeting is not the same thing as "telling an employee that
Respondent S & S would only employ those employees
who were against the Union." It is obvious that there is no
need to invite an employee, who reasonably could be
expected not to work for less than union wages, to a
meeting to tell of the less-than-union terms S & S was
going to offer employees. Under these circumstances, this
is not a threat or prediction that prounion employees of
Co-Op would not be hired if they applied and would take
less-than-union terms being offered for employment.
Accordingly, this testimony does not establish the allega-
tion in the complaint and it also will be dismissed.
Upon the foregoing findings and conclusions and upon
the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent C & E is not the alter ego of Respondent
Co-Op.
2. Respondent S & S is not the successor to Respon-
dent Co-Op.
3. The General Counsel did not establish by a
preponderance of the evidence that Respondent C & E
violated the Act as alleged in the complaint.
4. The General Counsel did not establish by a
preponderance of the evidence that Respondent S & S
violated the Act as alleged in the complaint.
THE REMEDY
Having found that the General Counsel had not
established by a preponderance of the evidence that
Respondents C & E and S & S violated the Act as alleged
in the complaint, I shall recommend that the complaint be
dismissed in its entirety.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in the case,
and pursuant to Section 10(c) of the Act, I hereby issue the
following:
ORDER4
The complaint is dismissed in its entirety.
or someone with a record analagous to the record of Kahny. Respondent
also did not ask Beard because of his record on COD collections , chronic
illness, and poor work relationship.
4 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the Board, the findings , conclusions , and 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.