Compton Service Co., Inc.

National Labor Relations Board - Board Decisions

Jul 26, 1974

212 N.L.R.B. 557 (N.L.R.B. 1974)

COMPTON SERVICE COMPANY, INC. 557
Compton Service Company , Inc. and Teamsters Local
Union No. 688, affiliated with International Broth-
erhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America . Case 14-CA-7721
July 26, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On April 30, 1974, Administrative Law Judge Paul
E. Weil issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, and the Respondent filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached 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 Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be dismissed in its
entirety.
DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On December
14, 1973, Teamsters Local Union No. 688, hereinafter called
the Union, filed with the Regional Director for Region 14
of the National Labor Relations Board, hereinafter called
the Board, a charge alleging that Compton Service Compa-
ny, Inc., had failed to bargain in good faith with the Union
by bargaining individually with its employees concerning
wages, hours, and other terms and conditions of employ-
ment On January 31, 1974, the said Regional Director, on
behalf of the General Counsel of the Board, issued a com-
plaint and notice of hearing. The complaint alleges that
Compton Service Company, Inc., Compton Leasing, Inc ,
and Am-Del-Co, Inc., are a single employer; each of said
companies is the alter ego of the others; the three compa-
nies, referred to in the complaint and herein as Respondent,
violated Section 8(a)(5) of the Act by bargaining directly
with several employees, members of the Union which is the
collective-bargaining representative of various employees in
various units of Respondent's employees; and Respondent
unilaterally subcontracted certain unit work without notice
to the Union. By its duly filed answer I Respondent admits
and denies certain allegations regarding ownership and
structure of the three corporations, admits that Compton
Leasing, Inc., and Compton Service Company, Inc., are
each signatories to collective-bargaining contracts with the
Charging Party, and denies the commission of any unfair
labor practices. On the issues thus joined the matter came
on for hearing before me in St. Louis, Missouri, on March
19, 1974. All parties were present and represented by coun-
sel; all had an opportunity to call witnesses and adduce
relevant and material evidence. At the close of the hearing
all parties waived oral argument; briefs have been received
from the General Counsel and Respondent.
Upon the entire record in this matter and in contempla-
tion of the briefs, I make the following-
FINDINGS OF FACT
I JURISDICTION AND THE EMPLOYER STATUS OF THE THREE RESPON-
DENTS
Respondent, Compton Service Company, hereinafter
separately called Compton Service, is a corporation en-
gaged in the warehouse and delivery business for various
enterprises within the St. Louis area. It has 30 to 35 employ-
ees engaged largely in warehousing and delivery work for
three enterprises, J. C Penney, Speed Queen, and Mc-
Graw-Edison. It has governmental authority to operate de-
livery service in both Missouri and Illinois. Half of the stock
is owned by Billy J. Hunt, Compton Service's president, and
by members of his family; the other half is owned by Hollis
Garrett, vice president and secretary of Compton Service.
Compton Leasing Company, Inc., hereinafter called
Compton Leasing, is licensed as an employment agency. Its
function is to supply employees to enterprises requiring fur-
niture handling and delivery employees. At the time of the
hearing Compton Leasing had contracts with Furniture
Distribution Center pursuant to which it furnished seven
employees and with Carafiol, a chain of furniture stores,
pursuant to which it had, in the recent past, furnished six
employees. Apparently both Carafiol and Furniture Distri-
bution Center provided their own trucks or vans for the use
of these employees. In addition Compton Leasing furnished
employees and trucks to Compton Service which in turn
Compton Service provided to Famous Barr Company, a St.
Louis department store. The trucks furnished by Compton
Leasing to Compton Service and used at the Famous Barr
warehouse were owned by Famous Barr and are under lease
by Famous Barr to Compton Leasing. Compton Leasing
has separate contracts with the Charging Party for the con-
tingents of employees working at Famous Barr at Carafiol
and at Furniture Distribution Center The contracts are all
identical with the contract between Compton Service and
The answer was apparently inadvertently omitted from the formal docu-
ments introduced at the hearing No mention thereof was made on the record
and a copy was supplied to me In the absence of explanation, I presume that
the answer was duly filed
212 NLRB No. 96
558 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Charging Party covering the employees at J. C. Penney,
Speed Queen, and McGraw-Edison.
Compton Leasing is owned 50 percent by Mr. Hunt and
his family, 50 percent by Mr. Garrett and his family.
The third corporation involved herein is Am-Del-Co,
Inc., hereinafter called Am-Del-Co. Mr. Hunt is also presi-
dent of Am-Del-Co and Mr. Garrett the vice president.
Messrs. Hunt and Garrett and their families split the stock
of Am-Del-Co as of Compton Service and Compton Leas-
ing.
Am-Del-Co is engaged in the business of providing,
somewhat as a broker, owner-operators to any enterprise
with whom they could make a contract. The record reveals
that Am-Del-Co has acted as an agent only for one operator
and has contracted for his services only for a period of time
between December 21, 1973, and March 2 or 3, 1974.
Murray Hines is the operations manager for the Famous
Barr Division of Compton Leasing. His main duties are to
supervise the employees of Compton Leasing performing
work for Compton Service at Famous Barr. Hines has repre-
sented Compton Leasing in negotiations and grievance
committee panels with the Union, he also has represented
Compton Service in the same capacity. Murray Hines is also
the general manager of Am-Del-Co.
I find that, as alleged in the complaint, Compton Service,
Compton Leasing, and Am-Del-Co are affiliated businesses
engaged in a common enterprise with common offices, own-
ership, directors, and operators and constitute a single-inte-
grated business enterprise. By reason of the fact that all
employees of the two corporations which have employees,
Compton Service and Compton Leasing, and are subject to
identical labor relations contracts which are negotiated and
enforced by the same persons, I find that the three corpora-
tions have a common labor policy.
Insofar as the General Counsel has alleged that each of
said companies is and has been the alter ego of the others,
whatever connotations such a statement may have are not
necessarily adopted. I find that the three corporations con-
stitute a single enterprise and a single employer.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
tionwide in scope. Apparently some saving was accom-
plished thereby and other enterprises, including
Respondent's customers, were interested in the same type of
service. When Carafiol, one of the customers of Compton
Leasing, found that it had more delivery work to do than
the six men it normally used from Compton Leasing could
handle, it asked Murray Hines if he could provide them with
an owner-operator. In his capacity as general manager of
Am-Del-Co, Hines provided an owner-operator, who
worked from December 21 until about March 1 delivering
Carafiol's merchandise in his own truck.
Respondent, aware that it was probably losing business
to the owner-operator mode of delivering merchandise, de-
termined to expand Am-Del-Co's program. To that end
Hines attempted to recruit additional owner-operators ap-
parently without much success? Commencing about No-
vember 19, Hines talked with three employees of Compton
Leasing, Raymond Blackey, Ally Darnell, and John Hus-
key, suggesting to them that they operate as owner-opera-
tors for Am-Del-Co, going over with each of them the costs
that they would have to incur, either leasing or buying a
truck, and the pro that could be made thereby. Hines
offered them no sped job but merely asked them to con-
sider the matter. Each of them considered the matter, at
least one of them took it up with a union agent and was told
that the Union frowned upon the idea of employees driving
as owner-operators and each of them declined to enter into
the relationship. Hines testified that he selected these three
men because he knew that Famous Barr, where they
worked, was going to be using more owner-operators and
that the employees low on the Famous Barr seniority list3
would get little or no employment thereafter. This in fact
has come to pass. Where the Famous Barr division prior to
the advent of the new year had used in excess of 40 employ-
ees, at the time of the hearing it was using only 16 or 17. The
other employees on the seniority list were not working and
the three employees to whom Hines addressed himself, who
occupied positions 37, 42, and 43 out of 43 employees on the
seniority list, had not worked since February 25. Hines
asserted that he was concerned to get good men as lease
drivers or owner-operators and that he knew these three
men were competent and dependable. Hmes further testi-
fied that he suggested to these men that they could drive as
owner-operators for Am-Del-Co and continue to work
whenever they were called for Famous Barr under the union
contract.
Background
The contracts between Respondent and the Union ex-
pired November 1, 1973. The employees went on strike and
negotiations continued. After a strike lasting several weeks
the new contracts were signed and the employees went back
to work. In the meantime a considerable backlog had accu-
mulated. In addition to the backlog of warehousing and
deliveries, the Christmas season arrived and all employees
were at work.
In the recent past in St. Louis enterprises requiring deliv-
ery work had increasingly been subcontracting their deliv-
ery work to owner-operators under agreements directly with
the owner-operators or through agents, some of them na-
Discussion and Conclusions
I do not think that Respondent engaged in any unfair
labor practices in the situation presented by this case. I find
that the three enterprises constitute a single employer. The
units I find to be a unit of all employees of Compton Service
working at J. C. Penney, Speed Queen, and McGraw-Edi-
r It is not possible to tell from the record whether the failure of Am-Del-Co
to provide more than one owner-operator with more than one contract was
due to Am-Del-Co's inability to find owner-operators or its inability to find
enterprises which would use their owner-operators or both.
3 A separate seniority list was established for each of the divisions of
Compton Leasing under the separate contract signed with the Union.
COMPTON SERVICE COMPANY, INC. 559
son, another unit of all employees of Compton Leasing
employed at Famous Barr, yet another of all employees of
Compton Leasing at Carafiol, and another of all employees
of Compton Leasing at Furniture Distribution Center.4 The
three employees contacted by Hines were not offered em-
ployment nor were they offered a change in their working
conditions as employees of Compton Leasing. Respondent
at no time had a contract to provide owner-operators of
Famous Barr where the three men worked andindeed now
that Famous Barr is doing about half of its work with own-
er-operators it is not doing so pursuant to any contract with
Respondent. Accordingly, the terms and conditions which
Murray Hines was talking about with these three employees
were outside the employment relationship and not inconsis-
tent with it. I recognize that this is a somewhat narrow and
legalistic disposition of the issue but it is nonetheless neces-
sary in my opinion. Respondent was in a position of rapidly
losing its business because as an employer it could not com-
pete with those enterprises furnishing owner-operators to its
customers and its customers accordingly sought elsewhere
for owner-operators and found them, depriving Respondent
and its employees of the work they had theretofore done.
The decision to do this was not made by Respondent nor
was Respondent privy to it. The only way that Respondent
could salvage business from the situation was to itself act as
the agent of owner-operators which it attempted to do
through Am-Del-Co. Respondent makes much of the fact
that Hines acted outside of his function, beyond his authori-
zation, and in disobedience of his direct orders from Presi-
dent Hunt not to approach employees of Compton Leasing
in his search for owner-operators. I do not find it necessary
to reach this argument in view of my findings above.
With regard to the allegation of the complaint that Re-
spondent had a duty to bargain with the Charging Party
concerning the subcontracting of the delivery service at Ca-
rafiol during the December, January, and February period
4 There are no longer employees working at Carafiol , which has gone
completely to the owner-operator method of delivery and no longer called
upon Compton Leasing for employees Carafiol 's contract with Compton
Leasing provides only that Compton Leasing shall supply employees as
requested by Carafiol and does not provide that Compton Leasing's employ-
ees shall do all of the delivery work for Caraftol.
to an owner-operator under arrangements made through
Am-Del-Co, I find that no bargaining duty arose from this
situation. The decision to use an owner-operator rather than
to expand the Carafiol unit of employees was a decision of
Carafiol, not of Respondents. As I have pointed out above,
Carafiol's contract with Respondent required only that Re-
spondent furnish employees as requested by Carafiol. When
Carafiol declined to request additional employees but in-
stead requested an owner-operator, Hines wearing his Am-
Del-Co general manager's hat came forward with an owner-
operator to meet Carafiol's request. Again Respondent was
not responsible for the decision nor privy to it. Nor can it
be argued that Respondent should have used its influence,
if any, with Carafiol to require Carafiol to use employees
rather than owner-operators. It is obvious that no such in-
fluence existed and Respondents had no apparent legal
right to insist that the delivery work which it had contracted
to do be performed solely either by Respondent's employees
or by employees rather than by independent contractors.
Under these circumstances I can see no violation in
Respondent's refusing to bargain with the Union, Respon-
dent had nothing to bargain about, it was taking no steps
to dissipate the unit. On the contrary, all its interests would
best be served by the continuation of the unit. Respondent
did not change its operations, it's customers changed
theirs.
Upon the basis of the foregoing findings of fact and con-
clusions, and pursuant to Section 10(c) of the National La-
bor Relations Act, as amended, I hereby issue the following
recommended:
ORDERS
I find that Respondent did not violate the Act by refusing
to bargain or failing to bargain with the Union as alleged.
In view of the above findings, I recommend that the com-
plaint be dismissed in its entirety.
5 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relation Board, the findings,
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