Dixie Ohio Express Co.

National Labor Relations Board - Board Decisions

Sep 26, 1967

167 N.L.R.B. 573 (N.L.R.B. 1967)

DIXIE OHIO EXPRESS CO. 573
Dixie Ohio Express Company and Teamsters,
Chauffeurs , Helpers and Taxicab Drivers, Local
Union 327, affiliated with International Brother-
hood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America . Case 26-CA-2184
September 26, 1967
DECISION AND ORDER
On February 2, 1966, Trial Examiner Arthur E.
Reyman issued his Decision in the above-entitled
proceeding, finding that the Respondent had not en-
gaged in the alleged unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that the complaint be
dismissed, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the General Coun-
sel filed exceptions to the Decision and a support-
ing brief, and the Respondent filed a reply brief.
The National Labor Relations Board has
reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Deci-
sion , the exceptions, the briefs, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer only to the extent consistent herewith.
1. The record discloses that in July 1965 the
Respondent, during the term of a collective-bar-
gaining contract with the^Jnion, decided-to make
changes in the work of its employees in order to
reduce its high operating costs. The purpose of the
changes was to eliminate inefficiency and substan-
tially reduce the existing complement of employees
in the collective-bargaining unit. The Union, hear-
ing rumors, in late July asked Terminal Manager
Henry about the impending changes so that the
Union could properly represent the employees to
be affected; and Union Representative Watson of-
fered his services, based on past experience, to help
the Respondent work out the changes in a mutually
satisfactory manner. Henry replied that he did not
have to discuss the matter with the Union, and that
in any event he was unable to engage in any discus-
sion since the nature and extent of the changes
would not be known until later.
On August 17 the Respondent decided on the na-
ture and extent of the changes. Instead of advising
the Union, however, and despite the Union's
requests so as to be able adequately to represent the
employees, the Respondent at once put the changes
into effect and terminated the 15 regular employees
named in the complaint (about one-third of the
unit). The changes were essentially twofold in na-
ture:
(1) Until August 17, the Respondent had used
two employees in loading and unloading freight.
The first, classified as a checker, sorted the freight
and signed the accompanying bill of lading. The
second, classified as a lower rated dockman but
receiving the same pay,' assisted the checker and
engaged chiefly in stacking the freight according to
the checker's directions. Although the dockman
was supposed to report for reassignment when the
checker no longer needed his assistance, in practice
he usually stayed beyond the point when his ser-
vices were no longer needed. "This was causing us
to have one of the highest dock costs in the
system," Manager Henry remarked at the hearing.
On August 17, the Respondent changed to a one-
man crew, consisting of a checker, with a second
employee (also classified as a checker) helping out
only when and so long as the first checker requested
extra help.
(2) Until August 17, the loading and unloading of
freight from the Respondent's trucks and trailers
had been done at the same time.
On August 17, the Respondent changed this
work procedure: Each operation was thereafter
done at a different time. In addition, unloaded cargo
was stacked by destination, more carts were used
to trundle it about, and, where possible, freight con-
signed to a certain city was unloaded near a trailer
going to that city.
In short, from the Respondent's point of view the
operational changes it effected on August 17
resulted in a one-third saving in manpower and
dock costs. But from the employees' point of view,
the changes resulted in the termination of 15 exist-
ing jobs. Yet, despite the Union's obvious interest
in the changes and its prior requests for consulta-
tion so that it could carry out its obligations under
the Act and properly represent the employees to be
affected thereby, the Respondent effected the
changes and terminations unilaterally and without
affording the Union any opportunity to bargain
about the impact on the employees.
2. The General Counsel excepts to the Trial Ex-
aminer's conclusion that the Respondent's conduct
did not violate Section 8(a)(5) and (1) of the Act,
and specifically refers to the termination of the 15
employees resulting from the changes unilaterally
effected by the Respondent in the handling of in-
bound and outbound freight. The General Coun-
sel's accompanying brief points out, in part, that
despite the Union's requests for advance notice of
the changes so that it could properly represent the
employees to be affected thereby, the Respondent
proceeded to bypass the Union, and instituted the
changes and made the terminations unilaterally.
The General Counsel expressly argues in the brief
that the present case is substantially similar to
' The collective-bargaining contract provides in part that the Respond- tions, and that the rate of pay should be at the rate for the highest classifi-
ent could utilize employees interchangeably in the various classifica- cation
167 NLRB No. 72
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northwestern Publishing Company,2 where the
Board had found that similar unilateral terminations
would be unlawful even apart from any discrimina-
tory motivation. Although the General Counsel
also advanced other contentions, which we find
lack merit, we cannot ignore the foregoing sound
contention.
The Respondent filed no exceptions to the Trial
Examiner's Decision, and thus raises no objections
to any of the Trial Examiner's factual findings, in-
cluding those which we have summarized above.
The Respondent did, however, file a brief in reply
to the General Counsel's exceptions and brief. In
its brief the Respondent shows that it was quite
aware of the nature of the General Counsel's con-
tention, as set forth above. Indeed, the Respondent
expressly admits that "15 men have been laid off"
as a result of the operational changes, and that it
"bypassed the Union" with respect thereto.
It is thus apparent, and we find, that the present
proceeding properly raises the issue of whether or
not the Respondent, because of its nondiscriminato-
ry motivation, may ignore its statutory obligation to
bargain collectively with the Union before terminat-
ing 15 existing jobs.
3. In our opinion this issue must be resolved
against the Respondent. At the outset, it may be
noted that the Respondent is not here charged with
violating Section 8(a)(3), which would prohibit it
from terminating jobs or employees in order to
discourage union membership. We are thus not con-
cerned with the Respondent's motivation or pur-
pose. Rather, the issue involves the Respondent's
obligation to bargain collectively with the Union
over the termination of jobs and employees result-
ing from its decision to reorganize its operations. It
is clear that both a purpose and effect of the reor-
ganization was to enable the Respondent to perform
its workload without the services of about one-third
of its existing complement of employees.
"The term `bargain collectively' as used in the
Act `has been considered to absorb and give statu-
tory approval to the philosophy of bargaining as
worked out in the labor movement in the United
States. 1113 Reorganization plans designed to change
outmoded work rules and to eliminate unnecessary
jobs are undeniably intended to effect changes in
established terms and conditions of employment.4
In this country, such matters have traditionally
been subjected to collective bargaining.5
2 144 N LRB 1069,enfd. 343 F 2d521 (C A 7)
3 N L R B v American National Insurance Co , 343 U S 395, 408,
quoting from and citing Telegraphers v Railway Express Agency, 321
U S 342, 346 See, also Fibreboard Paper Products Corp v N L R B ,
379 U S 203
Respondent's reorganization proposals involved changing the size of
work crews to be assigned initially to loading and unloading trucks, the
discontinuance of one job classification, new procedures relating to the
placement of freight on the docks and the scheduling of loading and un-
loading operations , and the termination of jobs for 15 employees (almost
one-third of the unit)
5 For judicial recognition of this fact, see Order of Railroad Teleg-
We note that the Respondent did not merely lay
employees off temporarily because of a transient
dip in business or other factors beyond the Respond-
ent's control. On the contrary, it severed their ex-
isting regular employment status as a permanent
matter (though not foreclosing some possible later
employment on a casual or irregular basis).
Although the reason for the Respondent's action
may be beyond question in that it was designed to
eliminate existing inefficiency, we further note that
the work practices had become established as an in-
tegral part of the terms and conditions of employ-
ment, and were matters entirely within the Respond-
ent's control. The changes thus cannot be properly
viewed as merely a result or consequence of the or-
dinary course of business. Nor can the termination
be viewed as within the contemplation of section (5)
of article 39 of the contract, which refers to
temporary layoffs, and provides that when the work
force was again increased after such a temporary
layoff, the laid-off employees should be returned to
work in order of seniority.
On similar facts in Assonet Trucking Company,
Inc., 156 NLRB 350, the Board (by a panel consist-
ing of Chairman McCulloch and Members Fanning
and Jenkins) found that the company had violated
its bargaining obligation by making unilateral
changes in the operations which resulted in the
layoff of four night-shift employees on August 7,
1964, although, as in the present case, this was done
solely for economic reasons . We reach the same
conclusion here.
We are not to be misunderstood as holding that
the Respondent may not eliminate existing ineffi-
ciency in its business operations until first securing
the content of the Union. We do hold that, although
the Respondent had the right to determine the need
for a reorganization of its operations along more ef-
ficient lines, the Act imposed upon it the obligation
to notify the Union of its reorganization plan and to
afford the Union an opportunity to negotiate con-
cerning changes in the plan itself, the manner and
timing of the implementation of the plan, and the ef-
fects of the changes on employees whose jobs were
to be eliminated. It is clear that the Respondent
here not only refused to give the Union any ad-
vance notice, but indeed rejected th,; Union's prior
specific requests for such notice. Nor did the
Respondent show any circumstances indicating that
it was faced with an emergency requiring immediate
raphers v Chicago & Northwestern Railway Co, 362 U S 330 Also
consider the well - publicized negotiations between the railroads and rail-
way unions concerning revisions of work rules dictating size, classifica-
tions, and working conditions of employment of train crews, similar recent
negotiations in the steel industry concerning revisions in working rules
and crew complements , the provisions in collective-bargaining agree-
ments covering longshoremen which dictate the size of work gangs for
various types of cargo, and so forth All of these situations involve prac-
tices and rules which it may be in management 's interest to revise in the
interests of efficiency, but it is accepted that other interests and values are
also involved, and that submission of the disputes to the collective-bar-
gaining process best serves society 's interest
DIXIE OHIO EXPRESS CO.
action. Rather, the Respondent deliberately deter-
mined, as a voluntary assertion of its own alleged
prerogatives, that it would conceal from the Union
what layoffs it proposed to make before effecting
them.
The Respondent's position, in its extreme form,
would mean that an employer need never bargain
over changes in terms and conditions of employ-
ment if such changes had an economic justification,
regardless of their impact on employees. The Act
makes it clear, however, that the duty to bargain
collectively is not so circumscribed. Even accepting
the Respondent's contention that its reorganization
was solely for the economic purpose of eliminating
inefficiency, there are many questions which might
profitably have been the subject of collective bar-
gaining if the Respondent had not foreclosed bar-
gaining by its uncompromising position. Such
questions might include the matter of how soon the
proposed changes should be put into effect. Or
whether there should be any severance pay. Or
whether the terminated employees should be given
some other compensatory right, such as was pro-
vided in section 6(b)(2) of article 5 of the contract,
which provides that employees, if affected by the
partial closing of a terminal because of the transfer
of the work to another terminal, should have the
right to transfer to such other terminal if work was
available. Or as in section 6(c) of article 5, which
provides that employees, if affected by the
complete closing of a terminal because of the
elimination of the work, should have first opportu-
nity for available work at any other terminal within
the southeastern area (covering more than five
States). Bargaining may also have explored the
question whether the work of all the employees
should be reduced by one-third, so that none would
be required to bear the entire brunt of the Respond-
ent's decision. As the Supreme Court remarked in
Fibreboard Paper Products Corporation v.
N.L.R.B., 379 U.S. 203, 214, cost-cutting deci-
sions, even though not motivated by discriminatory
considerations, are "suitable for resolution within
the collective bargaining framework," and "it is not
necessary that it be likely or probable that the union
will ... supply a feasible solution but rather that the
union be afforded an opportunity to meet manage-
ment 's legitimate complaints...."
Accordingly, we conclude and find that the
Respondent violated Section 8(a)(5) and (1) of the
Act on August 17, 1965, by unilaterally effectuat-
ing its decision to institute certain operational
changes and terminate the regular employment
status of 15 employees.
4. To remedy the Respondent's unlawful uni-
lateral action, the General Counsel urges us to
6 See The Renton News Record, 136 NLRB 1294
'See Jersey Farms Milk Service, Inc , 148 NLRB 1392
' The appropriate unit consists of all employees in the classifications of
work covered by the current Local Cartage Contract between the
575
order the Respondent to reinstitute the inefficient
operational practices discontinued on August 17,
1965, and thereby create jobs in which to reinstate
the 15 employees . Recognizing that such a remedy
might be deemed inappropriate , however, the
General Counsel argues in the alternative that we
should order the Respondent to bargain with the
Union concerning the resumption of the discon-
tinued inefficient practices , with backpay running
pending satisfaction of this bargaining obligation.
We are satisfied that neither of these suggested
retrogressive remedies would be appropriate,"
particularly since the decision to effect the changes
was reached for purely economic reasons and
without thereafter either hiring others to perform
the work of the terminated employees or transfer-
ring such work to any other group of employees.
In fashioning an appropriate remedy , we note
that the Trial Examiner found that the Union met
with the Respondent on August 23, less than a
week after the unilateral changes, and discussed the
effect on the employees ; and the effects were
further discussed at a final meeting on September
2. In the absence of exceptions to these findings, we
adopt them pro forma. In addition , we note that the
record contains no evidence whatsoever that the
Union requested any further meetings to discuss
the effects of the unilateral changes upon the em-
ployees. Accordingly , we are persuaded that in this
instance the Respondent satisfied its bargaining
obligation by September 2, and find that an ap-
propriate remedy must take these facts into ac-
count. We shall , therefore , enjoin the Respondent
from hereafter taking unilateral action without first
advising the Union , and award the 15 unilaterally
terminated employees backpay , computed in the
customary fashion from the date of their termina-
tion to September 2.7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Dixie Ohio Express Company, Nashville,
Tennessee, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from unilaterally instituting
operational changes significantly impairing the
terms, conditions, or tenure of employment of any
of its employees in the appropriate unit," without
prior consultation with Teamsters, Chauffeurs,
Helpers, and Taxicab Drivers, Local Union 327,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive collective-bargaining
Respondent and the Union who are employed at the Respondent ' s Nash-
ville, Tennessee, terminal , including all dockmen , hostlers, checkers, and
local city truckdrivers, but excluding office clerical employees, guards,
and supervisors as defined in the Act
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of such employees , or in any like or
related manner refusing to bargain collectively with
the said union as the exclusive representative of
such employees.
2. Take the following affirmative action, which
we find appropriate to effectuate the policies of the
Act:
(a) Make whole the 15 employees terminated on
August 17, 1965, in the manner set forth above in
this Decision , for any loss of earnings they may
have suffered during the period from their termina-
tion to September 2, 1965.
(b) Preserve and, upon request , make available
to the Board or its agents, for examination and
copying, all payroll records , social security pay-
ment records , timecards , personnel records and re-
ports, and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its plant in Nashville , Tennessee, cop-
ies of the attached notice marked "Appendix."9
Copies of said notice , to be furnished by the Re-
gional Director for Region 26, after being duly
signed by the Respondent 's representative , shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by the
Respondent to insure that said notices are not al-
tered, defaced , or covered by any other material.
(d) Notify the Regional Director for Region 26,
in writing , within 10 days from the date of this
Order , what steps have been taken to comply
herewith.
Member Jenkins, dissenting:
I cannot agree with my colleagues that Respond-
ent's failure to bargain with the Union over the
decision to eliminate inefficient work procedures is
a violation of the Act.
My colleagues devote the bulk of their decision
to Respondents failure to bargain over the effects
of the changes in work procedures. On the facts
here, I think it plain that Respondent afforded the
Union proper opportunity to bargain about these
matters, and if this were the only difference
between us, I should be content to say so in a few
lines and forego discussion of principles.
However, the majority also holds that Respond-
ent was obligated to bargain with the Union about
its decision to make the changes, or as the majority
phrases it, "changes in the plan itself," as well as
"the manner and timing of the implementation of
the plan, and the effects of the changes on em-
ployees whose jobs were to be eliminated ." That is,
Respondent was required to bargain about whether
to take the action at all, as well as about how to ac-
complish the changes and the manner of distributing
the impact.
Respondent unilaterally made the following
changes in its operations: Loading and unloading,
formerly done simultaneously, were now done at
different times; unloaded cargo, formerly stacked
hapharzardly, was now stacked according to
destination and more hand cars were used to move
it about within the terminal, and where possible,
cargo was unloaded near a trailer going to the city
to which the cargo was consigned; and a second em-
ployee, who assisted a checker in each unloading
operation and who in theory was required to report
for reassignment when no longer needed but in
practice stayed with the unloading beyond that
point, was replaced by an employee assigned to the
unloading only when and so long as the checker
requested extra help. 10
More succinctly, Respondent made minor
changes in work procedures in unloading trailers
and stacking shipments on the dock, and eliminated
the idle time of unloading assistants whose idleness
developed only out of their own breach of the work
rules for the job. As a result of this rearrangement
of work procedures and th e elimination of wasteful
steps of the operation, Respondent's requirement
for employees decreased, resulting in a termination
of 15 employees.' 1
Thus, this is not a case in which an employer has
subcontracted work unilaterally, or transferred unit
work to other employees, or introduced new labor
saving machinery, without notifying or bargaining
with a union. Here, the employees continued to do
the same type work in essentially the same manner
as before, and the same volume of freight continued
to pass through the terminal , the differences being
where truck cargo was stacked and when additional
men were assigned to help the checker. There is
nothing to indicate that the jobs themselves became
more onerous, difficult, protracted, or intensive.
These minimal changes in procedure resulted in ef-
ficiencies which permitted a reduction in the total
number of employees needed.
Such slight procedural changes are not mandato-
ry subjects of collective bargaining but rather are
part of the day-to-day managerial control of an en-
terprise, just as were the multitudinous ad hoc
"make or buy" subcontracting decisions in
Westinghouse (Mansfield Plant).12 Inefficiencies
9 In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order "
10 As my colleagues acknowledge , all of the changes in work assign-
ments were in accordance with provisions of the collective -bargaining
contract
11 As the Trial Examiner noted , the Union filed grievances under the
contract and subsequently the parties met and discussed the changes and
layoffs on August 23 and September 2 Apparently , there were no
changes made as a result of such negotiations and the record does not dis-
close that the Union requested any further meetings
12 Westinghouse Electric Corporation (Mansfield Plant), 150 NLRB
1574
DIXIE OHIO EXPRESS CO 577
and mistakes creep into an operation, and manage-
ment attempts to weed them out as they are
discovered. The fact that they exist for a time
without being discovered or eliminated does not
elevate them to being "terms and conditions" of
employment which must be bargained about.
I doubt that my colleagues would require an em-
ployer to bargain over whether truck drivers must
use a newly opened Interstate highway instead of
the old road in order to save running time, whether
to shut down a production line which through error
in product design, in materials, or in deliveries
turned out useless products, or whether to ter-
minate 10 unneeded employees hired by a super-
visor in excess of his authorization. The problem
here is where the line should be drawn of making a
distinction of degree.
Blunders, mistakes, errors in judgment, and even
tolerated inefficiencies do not, by a relatively brief
and unrecognized existence within an enterprise,
thereby become "terms or conditions of employ-
ment," uncorrectable until they are bargained out
with the union. It is this which distinguishes the
Telegraphers case,13 where a secular trend of
technological obsolescence had rendered unneces-
sary jobs which had existed for decades, in an in-
dustry where manning requirements were the sub-
ject of elaborate work rules which had long been the
subject of bargaining.
Both cases on which the majority relies are readi-
ly distinguishable. In Northwestern Publishing
Company, 144 NLRB 1069, the employer dis-
criminatorily terminated employees in violation of
Section 8(a)(3); the work performed in
Northwestern was subsequently performed by em-
ployees who had not done the work in the past; and
the Employer unilaterally altered hourly rates of
pay and mileage reimbursement rates. In Assonet
Trucking Company, Inc., 156 NLRB 350, the
Board found that the employer's sale of its trucks,
on May 15, 1964, and its layoff of seven employees
and the subcontracting of their work was done for
discriminatory reasons and was violative of Section
8(a)(5) and (3). While subsequent elimination of
four employees on a night shift was found to be
economically motivated, the Board nevertheless
noted that "the Respondents had just 3 months
earlier given evidence of their opposition to the pol-
icies of the Act...."
The Board has repeatedly stated that the princi-
ples of Fibreboard14 "are not meant to be hard and
fast rules to be mechanically applied irrespective of
the circumstances of the case."15 If so, then in
drawing the line the present case should be placed
on the side on which bargaining is not required. To
hold otherwise is to give point to Mr. Justice
Holmes' observation that "All rights tend to declare
themselves absolute to their logical extremes" and
to ignore his warning that "all [rights] in fact are
limited by the neighborhood of principles of policy
which are other than those on which the particular
right is founded, and which become strong enough
to hold their own when a certain point is
reached." 16 In their belief that "Respondent's posi-
tion, in its extreme form, would mean that an em-
ployer need never bargain over changes in terms
and conditions of employment if such changes had
an economic justification, regardless of their impact
on employees," my colleagues have adopted the op-
posite extreme as an antidote. I find both extremes
unappealing, and unnecessary to the disposition of
this case.
Therefore, I am compelled to conclude that the
Employer was not obligated to bargain with the
Union about whether to make the modest changes
in work procedures and the resulting reduction in
force. Respondent was obligated, of course, to bar-
gain about the effects on the terminated employees,
and did so. Significantly, almost all of the matters
which the majority suggest might have been the
subject of fruitful bargaining are such effects.
For the foregoing reasons, I consider that the bar-
gaining requirements of the statute have been
satisfied by Respondent and would dismiss the
complaint.
13 Telegraphers v Chicago & Northwestern Railway Co, 362 U S
330
14 Fibreboard Paper Products Corp v N L R B 379 U S 203
',Shell Oil Company, 149 NLRB 305, 307, Westinghouse Electric
Corporation (Mansfield Plant), 150 NLRB 1574, 1576, Sucesion
Mario Mercado Hilos dibla Central Rufina, 161 NLRB 696
"Hudson County Water Co v McCarter, 209 U.S 349,355
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT unilaterally institute opera-
tional changes impairing the terms and condi-
tions of employment of any of our unit em-
ployees, without prior consultation with Team-
sters, Chauffeurs, Helpers, and Taxicab
Drivers, Local Union 327, affiliated with Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
as the exclusive collective-bargaining represent-
ative of such employees, or in any like or re-
lated manner refuse to bargain collectively with
the said Union as the exclusive representative
of such employees. The appropriate unit con-
sists of:
All employees in the classifications of
work covered by the current Local
Cartage Contract with the Union who are
578 DECISIONS OF NATIONAL
employed at the Nashville, Tennessee, ter-
minal, including all dockmen, hostlers,
checkers, and local city truckdrivers, but
excluding office clerical employees,
guards, and supervisors as defined in the
Act.
WE WILL make whole the 15 employees laid
off on August 17, 1965, for any loss of earnings
they may have suffered during the period of
their layoff of September 2, 1965.
DIXIE OHIO EXPRESS
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office, 746 Federal Office Building , 167 North
Main Street , Memphis, Tennessee 38103,
Telephone 534-3161.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARTHUR E. REYMAN, Trial Examiner: On August 2,
1965, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, herein
sometimes called the Union, filed a charge against Dixie
Ohio Express Company, herein sometimes called the
Respondent or the Company, charging that the Company
had engaged in unfair labor practices within the meaning
of Section 8(a)(I) and (5) of the National Labor Relations
Act, as amended, 29 U.S.C. Sec. 151, et seq., herein
called the Act. The basis of the charge was that on or
about August 16, 1965, and "continued since until Oc-
tober 25, 1965, and at all times since said date," the Com-
pany, by its officers and agents, refused to bargain collgc-
tively with Teamsters Union, Local 327, a labor or-
ganization chosen by a majority of its employees in an ap-
propriate unit, for the purposes of collective bargaining in
respect to rates of pay, hours of employment, and other
conditions of employment. On October 19, 1965, the
General Counsel of the National Labor Relations Board,
on behalf of the Board, by the Regional Director for Re-
gion 26, issued a complaint and notice of hearing against
the Respondent, the complaint alleging that the Respond-
ent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Sec-
tions 8(a)(1) and (5), and 2(6) and (7) of the Act. The
Respondent filed timely answer to the complaint, effec-
tively denying the contraventions of the Act as alleged.
Pursuant to notice, this case came on to be heard before
me at Nashville, Tennessee, on December 6, 1965, and
was closed on that day. At the hearing, the General
LABOR RELATIONS BOARD
Counsel and the Respondent were represented by coun-
sel and the Union was represented by the business
iepresentative of Local Union 327. Each party was ac-
corded full opportunity to be heard, to call and examine
and cross -examine witnesses , to engage in oral argument,
and to file briefs and proposed findings of fact and conclu-
sions of law. Briefs have been submitted on behalf of the
General Counsel and the Respondent.
Upon the full record in this case, and upon my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Dixie Ohio Express Company, is
now, and has been at all times material herein, an
Alabama corporation, engaged in the furnishing of in-
terstate motor freight transportation services between
several States, including Ohio, Georgia, Alabama, New
York, Pennsylvania, Kentucky and Tennessee. Respond-
ent maintains terminals at various locations including a
terminal at Nashville, Tennessee. During the 12 months
immediately preceding the issuance of the complaint
herein, the Respondent, in the course and conduct of its
business operations at its Nashville, Tennessee, location,
derived gross income in excess of $50,000 from its per-
formance of motor freight transportation services
between several States.
The Respondent is now, and has been at all times
material herein,-an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Helpers and Taxicab Drivers,
Local Union 327, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is now, and has been at all times
material herein, a labor organization within the meaning
of Section 2(5) of the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges, and the answer asserts insuffi-
cient knowledge to admit or deny, that all employees in
the classifications of work covered by a current Local
Cartage Contract between the Respondent and the Union
who are employed by the Respondent at its Nashville,
Tennessee, terminal, including all dockmen, hostlers,
checkers and local city truckdrivers, excluding office
clerical employees, guards, and supervisors as defined in
the Act, constitute an appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act; and that at all times material herein, the Union
has been designated by a majority, and has been the
representative for purposes of collective bargaining of the
employees in the above-described unit, and by virtue of
Section 9(a) of the Act, has been, and is now, the exclu-
sive representative of all the employees in said unit for
the purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment.
The complaint alleges, and the answer admits, that col-
lective-bargaining agreements have been negotiated and
executed by and between the Respondent and the Union
covering the employees in the above-described unit, the
DIXIE OHIO EXPRESS CO.
latest of these agreements having been executed on or
about January 16, 1964, being thereafter and currently in
effect.
The complaint alleges, and the answer denies, that on
or about July 30, 1965,' and thereafter, the Union, as the
exclusive collective-bargaining representative of all the
employees of the Respondent in the described unit, has
requested and is requesting the Respondent to bargain
collectively with respect to the rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment of the employees in that unit, and specifically
with regard to the consolidation of classifications of work
and consequent layoff of certain of the Respondent's em-
ployees at its Nashville terminal; that at all times material
herein , the Respondent did refuse , and continues to
refuse, to bargain collectively with the Union as the ex-
clusive collective-bargaining representative of the em-
ployees in the unit above described in that the Respond-
ent, on or about August 16, unilaterally modified the
duties of certain of its employees at its Nashville ter-
minal, and consolidated the classifications of checker and
dockmen into the single classification of checker, all
without notice to, consultation or bargaining with, the
Union; and that as a result of such unilateral changes as
set forth in the complaint, the Respondent has, since on
or about August 17, laid off some 15 of its employees at
the Nashville terminal.
The Collective-Bargaining Agreement and Pertinent
Contract Provisions
Dixie Ohio Express Company, the Respondent, is a
freight trucking company which operates from a number
of city terminals, including the one located at Nashville,
Tennessee. Local Union 327 represents the Nashville
city employees of the Respondent, as has at all pertinent
times been a party to a contract with the Respondent
Company which covers these city employees. This con-
tract, the National Master Freight Agreement and
Southeastern Area Local Cartage Supplemental Agree-
ment, covering over-the-road and local cartage em-
ployees of private, common, contract, and local cartage
carriers, is for the period February 1, 1964, to March 31,
1967. Among the provisions of this collective-bargaining
agreement applicable to the Nashville city employees of
the Respondent are the following-
Article 47. Rates of pay
The following minimum
rates of pay shall prevail
for all classifications as
follows:
Section 1. -1-64 -1-65 -1-66
Checker & Driver $3.12 $3.21 $3.31
Dockman $3.02 $3.11 $3.21
' Unless specifically noted , all dates hereinafter mentioned are for the
year 1965
2 The provisions of the Act mainly to be considered here are
Sec 7 Employees shall have the right to self-organization, to form,
join, or assist labor organizations , to bargain collectively through
representatives of their own choosing , and to engage in other con-
certed activities for the purpose of collective bargaining or other mu-
tual aid or protection
Sec 8 (a) It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain , or coerce employees in the exer-
cise of the rights guaranteed in section 7,
579
Section 8. The rate of pay for any day shall be the
rate for the highest classification in which an em-
ployee works on that day. Regular employees em-
ployed in a particular classification shall not suffer a
reduction in his hourly rate of pay while working in
a lower classification. The Employer may utilize em-
ployees interchangeably in the various classifica-
tions.
* * * * *
Section 12. An Employer may use the youngest fif-
teen (15%) percent of the total regular employees (at
least one (1) at each terminal ) as unassigned em-
ployees. These unassigned employees shall work
under all conditions of and guarantees of this Agree-
ment, except their work week shall be any five (5)
days from Monday through Sunday. These em-
ployees may be worked on any day during the work-
week to make up their weekly guarantee ....
The contract also contains provisions governing the ap-
plication of seniority and provides for grievance
procedures. The layoffs of August 17 were made the sub-
jects of grievance and were processed up to a certain
point, as described below.
The issues in this case arise out of the disagreement
between the Respondent and the Union, the Charging
Party, as to the application of these section 1 and section
8 provisions of the contract by the Company on and after
August 17. Counsel for the Respondent briefly and cor-
rectly states the issues of this case to be:
1 Was Respondent obligated to bargain with the
Charging Party with regard to the decision to make cer-
tain modification of Respondent's operations at its Nash-
ville terminal?
2. Was Respondent obligated to bargain with the
Charging Party with regard to the effect of certain modifi-
cations of Respondent's operations at its Nashville ter-
minal; and if so, was that obligation met?
The General Counsel contends that the Act and Board
and court cases decided pursuant thereto, require that an
employer, in the face of a certified representative of its
employees, give notice to this same representative before
instituting or changing the wages , hours, or other condi-
tions of employment of its employees, that here, the
failure of the Respondent to give notice of certain
changes in practice affecting and causing loss of work for
some employees constitutes action violative of Section
8(a)(5) of the Act, with a consequent derivative violation
of Section 8(a)(1).2
Terminal Dcck Operations Prior To and After August 17
In the course of dock operations prior to August 17 in
the handling of inbound and outbound freight at the Com-
(5) to refuse to bargain collectively with the representatives of
his employees , subject to the provisions of section 9(a)
(d) For the purposes of this section, to bargain collectively is the
performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times and
confer in gocd faith with respect to wages, hours, and other condi-
tions of employment, or the negotiation of an agreement, or any
question arising thereunder , and the execution of a written contract
incorporating any agreement reached if requested by either party, but
such obligation does not compel either party to agree to a proposal or
require the making of a concession
310-541 0 - 70 - 38
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany's Nashvi lle terminal , there were four job classifica-
tions customarily bid: dockman, checker, hostler or yard-
man, and city driver. The primary duty of the hostler at
that time , as now , required him to see that the trucks were
moved in and out of the docks so that the dockmen could
work them , to see that the units were prepared to go on
the road, properly weighed and properly closed. The city
drivers then , as now , worked primarily in the city,
delivering to and picking up freight from customers in the
commercial area of Nashville. The checkers and the
dockmen did primarily the same kind of work ; that is, ac-
complishing the physical handling of freight across the
dock . The checker was the one who signed the bill of lad-
ing, showing that the freight had moved and the condition
in which moved and to what destination . In the words of
Terminal Manager Jack Henry "they both are to help
each other in freight that required two men to handle, in
the stacking of it onto carts or wheelers to take across the
dock , in going across and stacking it into the other units,
to load outbound , or placing it in the proper place on the
dock."
Prior to August 17, inbound and outbound freight was
handled simultaneously. Inbound freight is that which
originates at another terminal , is unloaded from large
trailers at the Nashville terminal and reloaded on smaller
delivery trucks for delivery in Nashville to customers or
to connecting freight lines ; outbound freight is that which
is picked up by smaller trucks in the Nashville area and
unloaded at the terminal , and then reloaded on large
trailers for transport to other terminals . During these
times prior to August 17, trucks and trailers were placed
at the several doors of the terminal without regard to their
content or destination. Freight unloaded from the trucks
and trailers were placed in different spots over the whole
terminal area until, in the words of Henry, "it got so full
that we couldn 't do anything else, then we would go in
there and route out loads of freight to load up , and at this
time we made a definite decision as to what trucks did we
need to have to load to certain points, such as Akron,
Buffalo and Atlanta, where the majority of our freight did
go." In describing the work of the checkers and dockmen
on the dock, and how closely they work together, Henry
testified:
Well, they worked together in various different ways.
They originally, under the setup that we had, by
working both our inbound and outbound at the same
time, we had a limited number of available spaces to
work trailers in, and we tried to work two men
primarily together even though it was less efficient it
would speed up getting these trailers out of the doors
where we could put more trailers into the limited
number of doors we had available. They would be as-
signed to go together to work on a unit as they came
to a certain type of freight for a position in that trailer
where one man could handle the rest of it the other
man then was supposed to become available to do
something else. However , in a period of time this had
kind of deteriorated to the point that unless the
foreman actually was on the spot to see them arrive
at this point that one man would stand and hold a bill
while the other did the work , and this was causing us
to have one of the highest dock cost in the system,
and it was becoming prohibitive.
Now, previously we had worked these both one
against the other , when they are two definitely dif-
ferent operations , and we felt that with a limited
number of doors, and tools, such as four-wheelers,
two-wheelers and dock plates, and things of this na-
ture, tow motors , that if we would do one operation
at a time we could dev(,te all the tools, the available
men and the room to that one operation and it would
be almost like doubling our equipment.
In July, company representatives had made a definite
decision to survey the situation in an effort to reduce the
cost of freight handling at the Nashville terminal . In early
August, after conferences between Terminal Manager
Henry, J. Burns, a company industrial engineer, and Vice
President O'Hara, a definite plan of reorganization of the
work in the yard and on the dock was formulated.
The city drivers make the local pickups and deliveries
and, according to Job Steward Warren Owenby , are used
on the dock when there is no driving to be done. The long-
haul or road drivers are not involved in this dispute. The
actual task of loading and unloading the freight falls upon
the checkers and dockmen, and as noted, the only dif-
ference in their duties is that the checker is primarily
responsible for the loading and he is the one who signs the
bill of lading. Until August 17, the four different job clas-
sifications were bid, subject to the contract provision giv-
ing the unlimited right to the employer to use the em-
ployees interchangeably regardless of classification. Too,
as noted above, the contract provides that when an em-
ployee is used in two classifications in one day, he must
be paid the wage rate for the higher classification. Uncon-
tradicted upon the record is the testimony of Henry that
interchange among the classifications was and is such a
common practice of the Company that, in order to avoid
confusion, it has always paid all employees the highest
applicable contract rate.
The dollar-and-cents difference in the total aggregate
earnings of the employees affected here is not shown. It
does appear that 13 regular men were displaced, at least
temporarily; how many of the 31 regular employees who
formerly bid as dockmen but who now benefit by bid as
checker is not shown either. These figures in any event
are not material if it be found that the Company acted
within its contractual right. In connection with the reor-
ganization of the dockwork procedure, Terminal
Manager Henry testified that since the changes were ef-
fected, the Company's dock costs have dropped from
about 30 cents a hundred across the dock to about 18
cents a hundred, and that the Company's service to their
customers has improved to the point that "I feel that we
are in good standing and in a good position to retain this
business on a competitive basis." The changes also in-
volved the hiring of some additional help in the office and
the acquisition of new two-wheel or four-wheel dock
carts.
Before the change in dock methods was put into effect,
the Company employed 44 regular "city" (as distin-
guished from "road") employees and 2 regular extra em-
ployees. As noted, the contract covering these employees
provided for three job classifications: driver, checker and
dockman, the classification of hostler or yardman not
being provided for in the contract. The hostler's duties
consist of shifting trucks and trailers and spotting them in
the yard area. After August 17, the Company laid off the
2 regular extra employees and 13 of the regular em-
ployees which, the General Counsel contends, meant
the abolition of the job classification of dockman and
various other changes in the work operations at the Nash-
ville terminal." It is what the Respondent refers to as
DIXIE OHIO EXPRESS CO.
"modification of operations" made at this terminal that so
greatly increased efficiency that 13 city employees and
the 2 regular extras no longer were needed and con-
sequently were laid off.
The changes made were not extensive. Both before and
after August 17, the terminal handled inbound and out-
bound freight, the only difference after August 17 being
that it is not now handled simulatenously. Before August
17, trucks and trailers backed up to the terminal dock to
load and unload freight; after that date, they still backed
up to the terminal doci: to load and unload freight, the dif-
ference being that now effort is made to place trucks con-
taining goods consigned to a certain city as near as possi-
ble to the trailer which is going to that city. In other
words, before August 17 freight was unloaded and placed
indiscriminately on the dock, but thereafter while it was
still placed on the dock it was placed in one designated
area for the city to which the freight was to be carried. Be-
fore August 17, freight was moved on the dock by means
of two-wheel handtrucks and four-wheel carts, after that.
it was handled with the same equipment except that more
of the same equipment is now available. Both before and
after that date, freight requiring two men to handle it was
and is handled by two men. The evidence confirms the
contention of the Respondent that after August 17 more
care was given to the placing of trucks and trailers at the
dock to reduce the distance freight had to be moved on
the dock and that the increase in freight handling dock
equipment speeded up handling time even though no new
types of equipment was purchased. Therefore, with the
increased ease in finding and handling freight shipments,
it has been possible for single employees to be assigned to
act as checkers in loading and unloading trucks except
that, when particular freight shipments require, additional
men are assigned to help handle it. The new practice has
eliminated the need for an unneeded man to check with
his supervisor for reassignment when only one man is
needed to load or unload a truck. In practical effect, and
the parties seem to be in agreement here, the dockman
(who may hold the classification of checker) now is
nothing more than a helper assigned to a checker when
the nature of the freight requires two men to handle it.
Dockmen still are employed to assist checkers when they
are needed.
Even though the Company does not now choose to bid
the classification of dockman and the duties of the
dockman would seem to fall almost exclusively within the
job classification of checker, nevertheless, the classifica-
tion of dockman has not been abolished and the Respond-
ent certainly has the right, so plainly written into section
8 of article 47 of the contract, to utilize employees in-
terchangeably in the various classifications. I can find no
real difference in the application of that provision of the
contract as between the time prior to August 17 and the
time thereafter. It is clear enought that, prior to August
17, if an employee did the job of checker and there was
work for a dockman and the Respondent needed a
dockman, a checker could be used as a dockman but be
paid the checker's rate. The uncontradicted testimony of
Terminal Manager Henry on cross-examination shows
that at any time, either before or after that date, a bid
checker could be assigned to the work of a bid dockman
if there was checking work to be done, so that the delinea-
tion as between work assignment and work duties, taken
either way, would make no difference so long as the em-
ployee was paid at the higher rate while working on a par-
ticular job. This has been the invariable practice of the
Company.
581
I am constrained to disagree with the contention that
the evidence presented herein by the General Counsel
together with the admissions of the Respondent, as a
result of changes made in the mode of operation at the
Nashville terminal, accomplished the abolition of the
dockman classification. The fact is that job classification
remains in contract form, and that there was no real
change such as to constitute a difference in mode of
operation in the handling of inbound and outbound freight
at the terminal. The Charging Party surely should not
reasonably complain if the Company now undertook to
pay the second man at the dockman's rate if, as a bid
dockman, he performed the dockman's duties. The
present mode of operation is the same as before; the dif-
ference is that the methods used to conduct the work at
the dock has been changed to accomplish a more efficient
operation. If this were a matter of contract interpretation
only, I would find that the Company has not breached the
provisions of either section 1 or section 8 of article 47 of
the current agreement.
Discussions Concerning Changes in Dock
Freight Handling
Both prior to and after August 17, representatives of
the Company and the Union discussed changes to be
made which eventually were accomplished as described
above.
Luther Watson, business representative of Local
Union 327, had heard that the Company was contemplat-
ing certain proposed changes in methods of freight han-
dling and sometime during late July, after he had heard ru-
mors of this, he and George Tarpley, assistant job
steward, called at the office of Terminal Manager Jack
Henry, when Watson told Henry that he had heard that
there was a change of operations in the making and asked
him to discuss the changes with him; that he told Henry
that the Union was entitled to know if any changes were
going to be put into effect so "we could represent the peo-
ple" and that Henry replied that he did not think he had
to discuss a change and upon being questioned said that
if changes were made, there was a possibility that several
employees might be laid off for "a short duration." Con-
cerning this meeting, Tarpley testified that the men on the
dock had heard a rumor through the dock foreman and of-
fice personnel that there was going to be a change in
operation and their purpose in talking to Henry was about
this change. He said that at that time Henry told him and
Watson that there was to be a change, he was not sure as
to the extent, told the union representatives that he ex-
pected company engineers to come in from Akron, that
they would have the final say as to what changes would
be made and further that he, Henry, had been informed
that changes had already been made in at least three of
the northern terminals in the system. In substance, this
conversation amounted to an effort on the part of Watson
and Tarpley to find out if changes were to be made and if
so what the extent of the changes would be, and that
Henry could give them no definite answer.
On August 16, Henry discussed the possibility of a
meeting between the business agent and the company en-
gineers, at which time Henry told Owenby that he was
meeting with the company engineers that morning. On
August 17, the engineers discussed the possibility of
changes and the changes to be made with these and other
men, and the layoff notices were given out. On August
23, Henry again discussed the effects of the changes with
Watson and Job Steward Owenby. On September 2, at
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Albert Pick Motel, a final meeting was held concern-
ing the changes and layoffs. Business Agent Watson,
Owenby, and Union Representative Vaughan discussed
the layoff procedure with i. Burns, a company engineer,
and Henry.
Henry testified that on August 23 Watson and Tarpley
had called at his office to discuss certain grievances at
which time, he said, Watson again "went over this" and
said he felt that the other use of the one-man crew as he
was familiar with it, by a company where he once worked,
and was used by some companies in Nashville, was a
better, more efficient method of utilizing the one-man
crew. Henry said that there was no further discussion
concerning any other modifications or changes; that dur-
ing the next week he and Owenby had two different con-
versations when Owenby said that he thought "that it
would be well and in the best interest of everybody if J.
Burns, our engineer, and Luther Watson, the business
agent, could get together and discuss the relative merits
of these different methods, that Watson had worked in
freight a long time and was a pretty well-versed person in
methods of handling freight " Henry told Watson he
would be glad to arrange such a meeting; that was the
meeting arranged for and held on September 2. In regard
to this latter meeting, Henry testified:
Yes, on September 2, we had this meeting with Mr.
Vaughn, Mr. Watson, Mr. Owenby, Mr. Burns and
myself attended, at which time Mr. Watson and Mr.
Burns sat down and discussed in our presence, but
mostly between the two of them, different points and
different ways of handling freight, different methods
of using tho one-man crew. Mr. Burns had the com-
pany manual and made some notes, and said that he
would take some of these suggestions under advise-
ment. At the end of this, when Mr. Watson again told
me that he felt that we had made these layoffs for the
purpose of defeating the contract to allow us greater
flexibility in the use of these men, and I denied this,
and he indicated that he felt that our work records,
the number of hours that we had worked these men
casually, proved that his contention was right.
* * * * *
The one thing that is not repetitive, at the end of
this discussion of these grievances was the fact that
at this time Mr. Owenby and/or Mr. Vaughn jointly
said that what was causing a great deal of problems
with the men was the fact that when we laid these 13
people off we didn't provide a bid job for them to
come back to, we had only bid 31 jobs for the men
that were staying on regular and as these men earned
back on, as per provisions of the contract, based on
hours they worked in a given period of time, that we
would get beyond our 15 percent unassigned that
was allowed, which we were in that position, getting
in that position that week and that that would put us
in that position for the following week, and I told
them that we would post a bid on the first business
day of the next week, and they said that still this
created a problem by having this occur during this
week that it took to bid the bids off that remained
posted for a period of 5 days.
* * * *
In the next bid that we posted we posted all the
bids, all the bid jobs, as the Local had asked us to do
for all the men on the seniority list, including the laid
off men.
The unrefuted testimony ties in with the statement by
Henry that the Union raised no objections to the changes
that the Company-had anstitu--ted, and-ftis uftTiern con-
tradicted testimony that while now under the present
system checkers and dockmen are not bid as such, the
Company does still use them interchangeably; "we will
take a checker and assign him to work as a dockman if
[it] is the type of freight that requires two men to handle
it." In this situation, the Respondent points out that since
each loading assignment is begun with only one mar., and
since the bill of lading must be signed by a checker, all
freight handlers are bid as checkers; therefore, it is spe-
cious to contend that the Respondent has eliminated the
job classification of dockman since the Respondent is
permitted, under the clear language of the contract, to use
checkers as dockmen. Henry says this is exactly what is
being done; no one on the side of the Charging Party
claims that it is not being done. Clearly, the job classifica-
tion of dockman still exists.
That the matter was regarded by both parties as one of
contract interpretation supported by the testimony of
Assistant Job Steward George Tarpley:
Actually that took place in both of these meetings, in
July and August. Mr. Watson offered his services in
July and August as business representative to come
in and help the Company work out these changes in
operation, in line with the contract and to point out
any discrepancy as he saw it, whereas we could work
this thing out on a so-called peaceful basis, and Mr.
Henry informed us that there wasn't any negotiating
to be done on this matter, as the company policy was
to be enforced irregardless of any outlook that we
might have on it.
Mr. Watson did make that statement [an objection to
a one-man crew]. We in the Union, in this area, have
our own idea as to what a one-man operation is that
is- presently in effect at various other terminals in
Nashville, and the operation that DOX has put in is
an entirely different operation. On these other docks
with a one-man operation, as we know it, one man,
the checker, isn't completely eliminated. Maybe you
will have all jobs bid as checkers but people, accord-
ing to their seniority, are allowed on a given day or a
given week whatever the case may be, to bid on this
day whether or not they want to break out trailers or
whether or not they want to stack freight, and in the
DOX change of operation, why, there is no such
thing. One man does the complete function.
To support its contention that the only change made is
one of form, rather than substance, and that while it no
longer posts the job classification of dockman, that clas-
sification still exists, the Respondent says that while ar-
guably this decision to change the form of the bidding
procedure is bargainable, it is a dispute far better resolved
under the grievance procedure of the contract; that the
position of the Respondent is most clearly seen in the
light of the course of action the Respondent could have
taken and still can take even in the face of an adverse
decision in this case, by posting only one bid for a
dockman, and then assign the dockman to work as a
checker; thus the form would be satisfied, and the sub-
stance of the present situation remained unchanged. This
argument is not met by simply saying that the Company
unilaterally rewrote the contract by inserting a new provi-
sion thereof or by arbitrarily eliminating section 8 of arti-
cle 47.
DIXIE OHIO EXPRESS CO 583
The Filing of Grievances and Their Consideration
Business Representative Watson testified that no
grievance was filed with regard to the "consolidation of
checkers and dockmen into one classification," but that
grievances were filed by the Union against the Company
alleging that the Company had improperly laid off per-
sons under terms of the contract. In explanation, Watson
testified:
Yes, sir, that's correct, based on for the purpose of
defeating the contract, and what it was for was for
them to use an excess amount. See, the contract
gives them a right to use 15 percent of the regular
employees as unassigned. They have no bid classifi-
cation. This grievance was filed because the Com-
pany laid these people off and was working them
every day in order to violate the contract by using an
excess amount of people as unassigned. That was the
basis of the grievance.
In his brief, counsel for the General Counsel, in interpret-
ing this testimony, says that "Subsequent to the layoffs,
the Union filed grievances under the procedures set forth
in the contract regarding the means by which employees
were selected for layoff. At no time, however, has the
Union filed a grievance under the contract with regard to
the unilateral changes or the resulting effects of these
changes upon the employees that it represented."
The testimony of Tarpley does not contradict this
rather finely drawn distinction, whereas the uncon-
tradicted testimony of Terminal Manager Henry would
indicate that either one of the two interpretations of the
grievance handling had been considered under the
grievance procedure contained within the contract.
Henry testified-
The layoff was protested in three different ways.
There were three grievances filed ... first of all,
there was a grievance filed in the name of all the men
involved who were assigned to the grievance stating
that the layoff was for the purpose of defeating the
contract This grievance was heard, and during the
time, between the time the grievance was filed and
the grievance was heard some men earned back on
beyond the allowable 15 percent. During the week
that these men were on in excess of the allowable 15
percent, while we were writing or having a new bid
bid off, they ruled that part of the men, the men in ex-
cess of our allowable 15 percent, would be paid time
and a half for the work off of the old bid shift, for that
week. On the other grievance the No. 6 man from the
top of these 13 men had a later starting workweek.
He had a different starting time, different starting day
in the week. The top sixth man protested then, saying
that since he was junior man to them in seniority that
he should be laid off first and not after them. The
committee ruled that since the man's workweek had
been started after theirs had finished his workweek
started on a Saturday and theirs finished on a Friday,
that any one man of the six, the senior men, who suf-
fered a loss of earnings during the three days that
they could have worked, being Monday, Tuesday,
and Wednesday, when he was on a regular bid shift,
that they would be paid up to 3 days, one of the men.
The other grievance was a grievance protesting let-
ters that I had given to two regular extra men stating
that they would no longer be regular extra. This was
not heard by the committee. It was settled between
the parties, because the contract sets up a procedure
whereby these men would automatically fall off the
regular extra status at the end of 30 days if they work
less than so many hours. So,'that one was settled and
only two were heard
Henry testified that no grievance was filed about the
changes or alleged changes.
It seems to me that the questions submitted for arbitra-
tion were ones arising under sections 1 and 8 of article 47
of the contract and the application of section 12 of that ar-
ticle to sections 1 and 8.
The power of the Board to remedy unfair labor prac-
tices is not limited by the fact that conduct constituting an
unfair labor practice may also violate the collective-bar-
gaining contract, thereby giving rise to remedies in addi-
tion to the Board's. International Harvester Company
(UAW), 138 NLRB 923, 925. However, the Board in
such case will not automatically exercise jurisdiction but
may, as a matter of discretion, decline to proceed, re-
mitting the parties to their contract remedies. The Board
ordinarily would consider this the appropriate course
where an arbitration proceeding had already been in-
stituted. United Telephone Company of the West and
United Utilities, Incorporated, 112 NLRB 779; Morton
Salt Company, 119 NLRB 1402; National Dairy
Products Corporation, 126 NLRB 434.
The Board will not decline jurisdiction in all cases
where there may be overlapping Board and contract
remedies. If there is no question of contract interpretation
that must be resolved before the determination of an un-
fair labor practice can be made, if the contract contains no
arbitration procedure, or if the contract defense is insub-
stantial or imcompatible with the policies of the Act, the
Board may proceed to an adjudication of the unfair labor
practice complaint. Cloverleaf Division of Adams Dairy
Co., 147 NLRB 1410; Smith Cabinet Manufacturing
Company, Inc., 147 NLRB 1506; Century Papers, Inc.,
155 NLRB 358.
Concluding Findings
The General Counsel asserts in his brief that the
Charging Party properly chose the only forum in which it
can seek redress for a denial of the statutory rights
guaranteed it when it filed the charges upon which the in-
stant complaint is based; that it has been the position of
the Charging Party throughout the entire proceeding that
it seeks only to be advised of changes which affect its em-
ployees and to be given the right to bargain concerning
these changes.3
Here we have in essence a dispute concerning the ap-
plication of the provisions of a negotiated collective-bar-
gaining agreement, neither the validity nor any particular
provision of the agreement being under attack; and
further specific contractual provisions (not under attack
either) for the resolution of disputes between the parties
arising from differences as to the meaning or application
of any of the terms or conditions of that agreement. But
3 I find it unnecessary to determine whether or not there may be any in-
ference of waiver to be drawn from Business Representative Watson's
reference to a one-man crew when he was discussing rumored changes
with Terminal Manager Henry I do agree that Watson did make per-
sistent attempts to learn what actions were being contemplated in connec-
tion with any changes in freight handling on the dock before such changes
were made
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has the Respondent unilaterally adopted , by implication
through action , new contractual provisions it seeks to im-
pose upon the Union without the acceptance and against
the opposition of the Union ? I think not.
The Respondent ' s position is that there were no
"changes" at all at the Nashville Terminal , but assuming,
arguendo , that there were, they were not changes in
wages, hours, or working conditions within the meaning
of the mandatory bargaining requirements of the Act. On
the other side of the case, the General Counsel states that
the evidence herein establishes beyond doubt that the
change in operations effected by the Respondent with the
resulting layoffs was a subject upon which the Respond-
ent was compelled to bargain ; and that the Act and
Board and court cases decided pursuant thereto, required
the Company , in the face of a certified representative of
its employees , to give notice to the representative before
instituting or changing wages, hours, or other conditions
of employment of its employees and that the failure of the
Respondent to give such notice constituted action viola-
tive of Section 8(a)(5) of the Act.
The General Counsel seems to rely on and request the
remedy required by the Board in Assonet Trucking Com-
pany, Inc., et al., 156 NLRB 350. The facts in that case
do not lend support to the position of the General Coun-
sel here. There, the Board found that the employer vio-
lated Section 8(a)(5) and , in one instance , 8(a)(3) as well,
by, among other acts, unilaterally selling some of its
equipment , subcontracting a portion of its work, and
discontinuing its night shift . In fashioning its order in
Assonet, the Board distinguished between the instances
where equipment was sold and work subscontracted, and
the change in which the night shift was discontinued. Re-
garding the former , the Board concluded that it would not
be equitable to order restoration of the status quo ante
although there was discrimination present in one of the
changes, since the sales of equipment were made to bona
fide purchasers, the employer was motivated solely by
economic considerations in making most of the changes,
and a portion of the work subcontracted was restored
after a short period . Accordingly , the Board took the view
that an order requiring the employer to bargain over any
future changes and providing for reinstatement and
backpay was sufficient . Backpay was ordered to run until
an offer of reinstatement was made or the employees
secured employment elsewhere. The discontinuance of
the night shift , it was found , created a different problem
because no intervening outside interests would suffer if
the action taken were undone. Hence, the Board ordered
that the employer bargain with the Union concerning the
resumption of the night shift and, if no agreement be
reached , bargain concerning the effects of the discon-
tinuance of the night shift on the employees involved.
No grievances were filed in the instant case by the
Union specifically relating to the so-called changes, and
the Union does not deny that it did not protest or file a
grievance concerning the bidding procedure used on Au-
gust 17. Indeed , all the parties agree that grievances were
filed concerning the method (or "mode" or "procedure")
of the layoffs, and concerning the Company 's use of over
15 percent of the work force unassigned to a specific
shift . Without regard to the propriety or necessity for the
use of the grievance procedure , however , here the parties
have within their contract a clause which completely
covers the handling of a layoff , previously bargained for
and agreed to, so that the procedure for layoffs here is
covered by the contract clause and is not a mandatory
subject for bargaining.
Upon the facts presented , I do not believe that Ter-
minal Manager Henry attempted to hide from the Union
the fact that impending changes were being considered by
the Company or that he avoided the Union 's representa-
tives and refused to talk to them about proposed changes
on the dock and possible consequent layoffs. When the
rumors of impending changes were brought to Henry's at-
tention by the Union representatives , Henry volunteered
to them the information that the Company ' s industrial en-
gineers were expected in Nashville and some modifica-
tion and possible layoffs might occur. This conversation
occurred in Henry's office early in August when Watson
and Tarpley raised the question . Watson claims that he
saw Henry at that time "to discuss this change with me,
and he said he didn 't care to discuss it," that he did not re-
call any reason other than the proposed changes he had
heard about . Tarpley said that he and Watson went in to
see Henry in about the middle of the month of July to
discuss, not only the rumored changes, but other matters
pertaining to petty grievances which were discussed be-
fore the subject of the proposed changes. The testimony
of each of these three makes it clearly apparent that at the
August 23 meeting with Henry, the latter was told that
the Union needed to know what was going on and
Tarpley wanted to know exactly what the change would
be that the Company intended to put into effect in Nash-
ville; Henry said that Watson told him that he (Watson)
did not question the Company's right to make the
changes; Tarpley's testimony shows that he did not ever
indicate to Henry any question concerning the Com-
pany's right to make the proposed changes under section
8 of article 47 of the agreement.
I find that a question of contract interpretation is in-
volved here , and it is my opinion that the Company acted
within its management rights as established by section 1
and section 8 of article 47 of the contract. I find further
that while the question could be settled definitively under
the grievance procedure provided in the contract, the
Board properly may take jurisdiction and dispose of the
matter under its own jurisdictional power and under the
provisions of Section 10(b) of the Act.
In support of its position , the Respondent cites Ordont
Orthodontic Laboratories , Inc , 156 NLRB 49. In that
case, the Board sustained the finding of its Trial Ex-
aminer that the elimination of overtime work, restrictions
on the movements of employees in the plant, and the en-
forcement of a no-talking rule, among other things, did
not constitute violations of Section 8(a)(5) of the Act.
There the Trial Examiner wrote.
The question of the employer's responsibility
under Section 8 (a)(5) of the Act to notify the bargain-
ing agent of his employees in advance of a layoff has
arisen only comparatively recently. It was not until
1962, when the Board decided in the Town and
Country [136 NLRB 1022, enfd . 316 F.2d 846
(C.A. 5)] and Fibreboard [138 NLRB 550, enfd.
322 F . 2d 411, affirmed 379 U . S. 2031 decisions ...
it was rarely contended by either unions or the
General Counsel that an employer was obligated to
notify the statutory bargaining representative of his
employees in advance each time he decided that a
single employee had to be laid off for lack of work.
. In the normal running of his business an employer
has numerous decisions to be made each day, and to
enlarge the area of compulsory bargaining in advance
about every single layoff for lack of work would bur-
den the employer in the management of his business
in a manner disproportionate to the gain to the
DIXIE OHIO EXPRESS CO. 585
represented employees.... historically the persons
most directly concerned - employers, employees,
and their bargaining representatives - have avoided
a construction of Section 8(a)(5) of the Act which
would require an employer, each time economic con-
ditions require him to layoff a single employee, to
notify the bargaining agent in advance. This has been
true, despite the fact that a layoff involves a change
in a term or condition of employment and hence is
technically within the sphere of mandatory bargain-
ing.
I subscribe to this interpretation of Section 8(a)(5)
of the Act. The collective-bargaining process func-
tions more effectively, in my opinion, when it con-
cerns itself with the overall problems of employer-
employee relations. The details and the minutiae of
employer-employee relations which arise every day
in the operation of a business can best be handled
under the scheme established in the collective-bar-
gaining contract, without having recourse to the
Board available each time a union disagrees with an
employer's decision regarding such a matter.
The Respondent relies, too, on American Oil Company,
152 NLRB 56, where it was found that the employer's
subcontracting did not require bargaining because it was
consistent with the employer's past practice and resulted
in "no real change in terms and conditions of employ-
ment." The Respondent points out that Westinghouse
Electric Corporation, 153 NLRB 443, and Allied Chemi-
cal Corporation, 151 NLRB 718, were also dismissed
primarily because of the existence of past practices.
Where management-rights clauses were involved, the
Respondent points to Druwhit Metal Products Company,
et al., 153 NLRB 346, and Kennecott Copper Corpora-
tion, 148 NLRB 1653
Important to the resolutions of questions of law in-
herent in the instant case is Fibreboard Paper Products
Corp. v. N.L.R.B., 379 U.S. 203. There the employer
contracted out plant maintenance work which his em-
ployees had previously been doing to an independent con-
tractor, who undertook to perform the same work with a
different set of employees. The court pointed out that the
contracting out of work performed by the members of the
bargaining unit was "well within the literal meaning of the
phrase `terms and conditions of employment,"' as used in
Section 8(d) of the Act; that the situation was not unlike
that in Local 24, Teamsters Union v. Oliver, 358 U.S.
283, "where we held that conditions imposed upon con-
tracting out work to prevent possible curtailment cf jobs
and the undermining of conditions of employment for
members of the bargaining unit constituted a statutory
subject of collective bargaining"; that the ". . . Com-
pany's decision to contract out the maintenance work did
not alter the Company's basic operation," since the Com-
pany merely replaced existing employees with those of an
independent contractor to do the same work under similar
conditions of employment; and that the factors which
prompted the Company's decision to contract out-i.e.,
a desire to reduce the high cost of its maintenance opera-
tion-had "long been regarded as matters peculiarly
suitable for resolution within the collective-bargaining
framework" (379 U.S. at 210, 212, 213-214). On the
basis of these considerations, the Court concluded that
the type of contracting out involved in Fibreboard was a
statutory subject of collective bargaining under Section
8(d) of the Act. The same factors are not present here.
More pertinent is N.L.R.B. v. Adams Dairy, Inc, 350
F.2d 108 (C.A. 8). There the employer completely
changed his distribution system from one of employed
drivers to one of sale of milk to independent contractors
for delivery. On first hearing, the court of appeals ruled
that the Company's action did not violate Section 8(a)(5)
of the Act. The Supreme Court remanded the case for
rehearing in the light of its Fibreboard decision. Upon
rehearing, the lower court again found no violation of the
Act holding that
. . . to require Adams to bargain about its decision
... would significantly abridge its freedom to
manage its own 'affairs.
In the instant case, to find that the Respondent is required
under Section 8(a)(5) to bargain with the Union over the
placing of freight on its docks and the loading and unload-
ing of trailers would be to disregard N.L.R.B. v. Adams
Dairy and completely ignore the contractual provisions
of section 8 of article 47 of the contract.
I therefore find and conclude that the Respondent was
not obligated to bargain with the union representatives
with regard to the decision to make certain modifications
of its operations at its Nashville terminal, nor was the,
Respondent obligated to bargain with the union represent-
atives with regard to the effect of the modifications of its
operations at the terminal.
On the preponderance of the evidence and upon the
record as a whole I find that the complaint herein should
be dismissed.
Upon the foregoing facts, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Dixie Ohio Express Company, is
now, and has been at all times material herein, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Teamsters, Chauffeurs, Helpers and Taxicab
Drivers, Local Union 327, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is-now , and has been at all times
material herein , a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has not engaged in and is not en-
gaged in unfair labor practices as alleged in the complaint.
4. The complaint herein should be dismissed.
RECOMMENDED ORDER
It is recommended that the Board enter an Order
herein dismissing the complaint.