Eaborn Trucking Service

National Labor Relations Board - Board Decisions

Feb 10, 1966

156 N.L.R.B. 1370 (N.L.R.B. 1966)

1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of the rights to self-organization , to form labor orga-
nizations , to join or assist International Union, United Automobile , Aerospace
and Agricultural Workers of America (UAW), AFL-CIO, or any other labor
organization , to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purposes of collective bargain-
ing or other mutual aid or protection , or to refrain from any and all such activi-
ties, except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment , as author-
ized in Section 8(a)(3) of the Act, as modified by the Labor -Management
Reporting and Disclosure Act of 1959.
All our employees are free to become or remain, or refrain from becoming or
remaining , members of International Union, United Automobile , Aerospace and
Agricultural Workers of America (UAW), AFL-CIO, or any other labor organiza-
tion, except to the extent that this right may be affected by an agreement requiring
membership in a labor organization as a condition of employment , as authorized in
Section 8 (a)(3) of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
MICHIGAN CONTRACTORS, INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
HARVEY ALUMINUM (INCORPORATED),
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive 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 pro-
visions, they may communicate directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan, Telephone No. 226-3244.
William Eaborn , d/b/a Eaborn Trucking Service and General
Teamsters, Chauffeurs and Helpers Local 249, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America . Case No. 6-CA-3199. February ' 10,
1966
DECISION AND ORDER
On August 5, 1965, Trial Examiner Eugene F. Frey issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
The National Labor Relations Board has reviewed the rulings made
by the Trial Examiner at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
has considered the Trial Examiner's Decision, the exceptions and the
156 NLRB No. 121.
EABORN TRUCKING SERVICE 1371
brief, and the entire record in this case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner, but
only to the extent consistent herewith.
We find, contrary to the Trial Examiner, that the alleged termina-
tion of Respondent's employees on July 1, 1964, was not in violation
of Section 8(a) (3), (5), and (1) of the Act, but rather that such
employees voluntarily quit Respondent's employ. During the period
in question, Respondent, who operated a small trucking company
employing five drivers, was in extremely poor financial condition, hav-
ing debts totaling over $65,000 directly related to the business. Previ-
ous to the July 1 election, Respondent's drivers had made several
demands for a wage increase and other benefits, each of which was
turned down on the grounds that Respondent could not afford it. After
filing a petition for an election, the drivers told Respondent that if
the Union won the election, they wanted the full union scale with all
other union benefits.
When the results of the union victory were announced on July 1,
the drivers immediately told Respondent that they wanted the union
scale and other benefits to start at once. The record shows, as the Trial
Examiner found, that Respondent could not afford the drivers'
demands and Respondent accordingly advised the drivers that he could
not pay more than he was presently paying them. The drivers
answered that they would not continue working for that. Respond-
ent then said if they would not work for that, they might as well get
their personal belongings out of the trucks and that he and his son
would drive the trucks. The drivers elected to remove their belong-
ings and none has worked for Respondent since that date.
We find that Respondent's employees were not discharged or laid
off,l but chose to quit Respondent's employ rather than continue to
work at their current wages. Respondent was under no obligation to
offer the drivers a higher wage, and it is apparent that Respondent
would have kept them on if they would have continued to work for
their then current wages. Thus, when Respondent told the drivers
to pick up their belongings if they would not work for what he was
then paying them, he was merely giving them their choice as to whether
to remain or not. By removing their belongings from the trucks and
permanently leaving the premises, the drivers made a, voluntary choice
to quit their employment. Consequently, as Respondent did not in
fact terminate his employees, the 8 (a) (3), (5), and (1) allegations
with respect thereto must of necessity be dismissed.
In light of our finding that Respondent's employees quit their jobs,
we further find that Respondent was under no duty to bargain about
the subsequent subcontracting out of work. In September 1964,
1 The drivers gave no indication that they were striking , and there is nothing in the
record to support such a conclusion.
13 7 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, who had curtailed his business after July 1 to a father-
and-son operation, began to haul again for a former customer. He
did so, however, with the aid of brokers, since he and his son could
not handle the work alone. The Trial Examiner found that Respond-
ent was under a duty to bargain about this subcontracting out of work
formerly performed by Respondent's drivers and violated Section
8(a) (5) by his failure to bargain with the Union thereon. Since we
have found, contrary to the Trial Examiner, that these employees quit
their employment with Respondent on July 1, we also conclude that
Respondent was thereafter under no obligation to bargain with the
Union and, accordingly, such subcontracting was not violative of Sec-
tion 8(a) (5).
Even assuming, however, that there was an economic layoff rather
than a quit on July 1, and that Respondent had a duty to bargain
about the subsequent subcontracting, we would find Respondent satis-
fied this bargaining obligation. On July 15, the date of certification,
Respondent met with John Reed, the union business agent. Reed stated
that he could do nothing about the cutback in operations, but only
wanted to negotiate for the drivers if Respondent were to resume oper-
ations. Upon hearing in September that Respondent was using
brokers, Reed telephoned Respondent and spoke with his son, Eugene.
When Reed suggested to Eugene that Respondent should go back
into business with his former drivers, Eugene replied that Respondent
no longer had operable equipment, that his old trucks had been put
up for sale, and that Respondent had been taking parts from them
to keep two trucks operating. In answer to Reed's suggestion that
Respondent rent new equipment, Eugene stated that having once
checked the rental price, Respondent determined that he could not
afford to operate in this manner. Eugene then offered to deal with
the Union if it organized the brokers, or to rehire the drivers if they
would buy Respondent's trucks or supply their own. We recognize
that Respondent subcontracted out the work to brokers before talking
to the Union, but we find that Respondent's overall conduct as
described above was such as to satisfy any bargaining requirement
within the meaning of Section 8(a) (5) of the Act.2
While we agree with the Trial Examiner that Respondent's grant-
ing of a wage raise to driver Wineland in the period directly preced-
ing the election may have violated Section 8(a) (1), we find that it
would serve no purpose of the Act to issue a remedial order for such
isolated action in the circumstances of this case.
[The Board dismissed the complaint.]
2 Hartmann Luggage Company , 145 NLRB 1572.
EABORN TRUCKING SERVICE
DECISION OF TRIAL EXAMINER
1373
STATEMENT OF THE CASE
The issues in this case are whether the Respondent named above (1) coerced
employees by grants of benefits and threats of reprisal to discourage selection of the
above-named Union as their bargaining representative, (2) temporarily discontinued
unit work and subcontracted unit work, terminating five employees engaged in that
work, because of their union activities, and (3) failed to bargain with the above Union
as the majority representative of employees in an appropriate unit, all in violation of
Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended,
29 U.S.C., Sec. 151, et seq., herein called the Act The issues arise on a complaint
issued by the Board's Regional Director for Region 6 on January 29, 1965,1 and,
answer of Respondent thereto. Pursuant to notice a hearing thereon was held before
Trial Examiner Eugene F. Frey on March 31, 1965, at Pittsburgh, Pennsylvania, in
which all parties participated fully through counsel; General Counsel and Respondent
filed written briefs with me after the hearing closed.
Upon the entire record in the case and from my observation of witnesses on the
stand, I hereby make the following:
FINDINGS OF FACT 2
I. THE RESPONDENT'S BUSINESS, AND STATUS OF THE UNION
Respondent is an individual doing business as Eaborn Trucking Service, with his
office and truck terminal at Pittsburgh, Pennsylvania, where he operates as a common
carrier hauling steel. In the year 1964, Respondent derived gross income in this
business exceeding $50,000 for services rendered to Jones & Laughlin Steel Corpora-
tion, H. J. Heinz Company, Pittsburgh Steel Company, Pittsburgh and West Virginia
Railroad Co., Joseph T. Ryerson & Son, Inc., J. B Richards Company, and at least
nine other commercial concerns named in the complaint, each of which has an annual
direct outflow in excess of $50,000. Respondent admits, and I find, that he is engaged
in commerce within the meaning of the Act.
The above-named Union is a labor organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The union activity
In May and June 1964, Respondent employed five truckdrivers.3 In May driver
Wineland asked him for a raise. Eabom said he could not afford it then, but that
Wineland should see him later. On or about June 1, Wineland, Petkas, and Hoff
made the same request, asking also for hospitalization benefits and vacation pay.
Eaborn replied that he could not afford to give any raises or other benefits, and told
Wineland that he thought it would be better if Wineland found a job elsewhere.
Petkas told Respondent they would go to the Union if they could not get anything.
The three drivers then talked it over, and on June 8 took the problem to the Union
where they signed authorization cards. On June 15 the Union filed a petition with
the Board in Case No. 6-RC-3612, seeking certification in a unit consisting of all
truckdrivers in Respondent's terminal, excluding office clerical employees, profes-
sional employees, guards, and supervisors as defined in the Act A consent election
was held on July 1, 1964, which the Union won by a 3 to 2 vote. On July 15, 1964,
the Regional Director certified the Union as the statutory representative of employees
in the unit aforesaid .4
i The complaint issued after Board investigation of a charge filed by the Union on
November 10, 1964.
2 Except where otherwise noted to resolve issues of credibility , the findings below are
based on credible and mutually corroborative testimony of witnesses of both sides, and
uncontradicted documentary proof adduced by Respondent
8 John G. Wineland, William Petkas, John Hoff, Douglas Wade, and Percy Wade.
6 Respondent admits, and I find , that at all times material herein, the unit found In the
representation proceeding was the appropriate unit for collective bargaining within the
meaning of Section 9 ( b) of the Act I also find that the Union has been since July 1,
1964, and now Is, the exclusive representative of all employees in said unit for purposes
of collective bargaining , within the meaning of Section 9 ( a) of the Act.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after the petition was filed, Eaborn told Wineland that his raise had been
put through : Wineland was raised from $2 to $2.30 an hour. About a week before
the election , Eaborn and his son, Eugene ,5 had another meeting with Wineland,
Petkas, and Hoff, in which the drivers told Eaborn they had signed up with the Union,
and if the Union won the election , they wanted pay raises on a graduated scale,
beginning with $2.50 an hour for all drivers at once,1 and in 6 months a raise to
$2.82 an hour , and at the end of a year the full union scale of over $3, with all
other union benefits, including hospitalization and time and a half for overtime.
Eaborn replied that he could not afford to give them any raise as he was "going broke,"
and if the Union won the election , he would have to "close the doors" because he
could not afford it, and he and his son would have to drive the trucks themselves.
Immediately after the election results were announced on July 1, the drivers told
Eaborn they wanted the graduated raise and other benefits they had asked for to
start at once . Eaborn replied that he could not afford it, could not pay them more
than he was then paying them . They said that they would not work for that. He
then replied, "That 's it, the operation was a success , but the patient died; if you are
not going to work for that, you might as well get your personal belongings out of the
trucks, I will have to close the doors , and my son and I will have to drive the trucks."
The drivers took their personal belongings , and none of them have worked for
Respondent since that date.
Respondent at once notified his customers of the drivers ' demands, and that he was
cutting back operations to two trucks because of his inability to comply with the
demand, and told them to find other carriers until he could find some solution to his
problem. Several of the customers , notably Pittsburgh and West Virginia Railroad
(herein called Railway ) found other haulers, and for about 8 weeks after the election,
both Eaborns drove only one large truck to service a few smaller accounts that they
were able to handle, and brought the elder Mrs. Eaborn into the terminal office to
help answer the telephone and do other office work whenever Eugene Eaborn drove
a small truck to handle short local hauls. ? In the same period Eugene spent much
time on repair and maintenance of another large truck to get it back into service.8
Immediately after its certification on July 15, the Union 's agent, John V. Reed,
came to the terminal and asked the Eaborns to negotiate a contract for the drivers.
Respondent mentioned the drivers ' wage and other demands on election day , said he
could not meet them because the business was in bad shape financially , that "this is
the straw that broke the camel's back," that he was "going out of business ," that he
and his son would drive two trucks to make a living for themselves, and sell the rest,
so that there was no need to talk about money or negotiate a contract because he could
not afford the union rates. Eaborn showed Reed his Federal income tax return,
on which he owed about $ 3,400 taxes , but Reed refused to examine or talk about it,
saying he was not interested in that or "your personal business ." Eaborn pointed out
to Reed the trucks in the yard, saying they were "practically junk," and Reed indicated
that he would take his word for it. Regarding the pay demand , Reed said the
drivers should not have made it, but should have waited for the Union to negotiate
on it. He then said that he could do nothing about the cutback in operations, that
if Respondent wanted to cut back, he could do so, but that any time he decided "to
go back into business ," the Union would negotiate for the drivers-
In the early part of 1964, Respondent had received substantial local hauling busi-
ness from the Railway , which had caused him to increase his work force from three
to five drivers and to use occasional "brokers" or subcontractors . In September, the
Railway requested Respondent to haul for it again . Eugene Eaborn explained to
the Railway agents that Respondent could not handle the account with only two men,
but might do it with the help of brokers, as none of Respondent 's other trucks were
usable. Respondent began hauling loads for the Railway again , on an irregular
basis, in August, with only the Eaborns driving. The Railway's calls for drayage
increased , and other former customers called Respondent for service , so that in
September and later months of 1964 and through March 1965 , the Eaborns supple-
mented their own personal services with brokers , ranging from 6 to 11 per month in
that period (each broker making at least one haul per month).
i Eugene was a much younger man who normally handled the office and dispatching
duties of the business , and also drove trucks on local hauls as business required
e At this time, Vineland and one other driver were getting $2 . 30 an hour, and the other
three $2 per hour
7 Respondent used brokers for only two hauls in July , but none in August.
8 Eugene Eaborn also testified that in the first 2 weeks after the election , they did
little to try to pick up more work , waiting until the Union came to bargain with them.
EABORN TRUCKING SERVICE 1375
When the Union learned in September that Respondent was using brokers, Reed
called Respondent who admitted using brokers but only for the Railway hauls. Reed
said he should stop that hauling, and that father and son should drive only their own
trucks, and if he did that, the Union would not press charges before the Board. Reed
suggested to Eugene Eaborn that Respondent should "go back into business," using his
former drivers. Eugene replied that Respondent could not do so because he had
no operable equipment on which he could use drivers, that his old trucks had been
put up for sale, and that Respondent had been "robbing parts" from them to keep
their two trucks operating. Eugene suggested that Reed examine the old equipment,
but Reed said he did not have to, as he had already seen it.0 Eugene said Respond-
ent was willing to do anything possible to help out the former drivers, that if they
would buy the trucks, Respondent would hire them, or the Union could organize
the brokers which Respondent was using. Reed suggested renting or leasing of new
equipment so that the former drivers could be put back to work. Eugene answered
that Respondent could not afford to buy or lease equipment,l'e as they still owed
money on the old trucks, which they were selling off, and that he and his father
would have to drive two trucks themselves to make a living. During the conversation,
Eugene did not agree to stop using brokers for the Railway account, and at the end
Reed said he would have to take the matter to the Board. He filed the charge herein
November 10, 1964.
Contention of Parties, and Final Findings and Conclusions
General Counsel argues that Respondent's second June reply to the drivers'
demands for more money and benefits amounted to a coercive threat to shut down
the business (and thus discharge all drivers) if the Union won an election, that the
sudden grant of a wage raise to Wineland, right after the Union filed its petition,
contrary to earlier denials of a raise, was a coercive inducement, and that Respond-
ent carried out its shutdown threat by the sudden discriminatory discharge of the
whole work force when the Union won the election However, these actions must
be considered in light of Respondent's financial situation before and at the time of
the election, because I have found that when Respondent denied the several demands
for wage raises and other benefits, he repeatedly explained to the drivers that he
could not afford them, and this is the basis of his main defense; the single action
which throws doubt on this explanation is his grant of the raise to Wineland, con-
trary to past denials.
The record clearly shows that in the early part of 1964, the business was in bad
financial condition, perhaps not far from insolvency. Respondent owed about $3,400
for current Federal income taxes, and on July 1 he had other debts totaling over
$65,000 directly related to the business, on which he was obligated to make monthly
payments of over $1,500.11 In this period the only liquid assets were cash in a
bank account which never contained more than a few thousand dollars at most. His
son, Eugene Eaborn, married with two children, both handled the office and drove
a truck on local hauls, and was drawing only $75 a week from the business; both
father and son worked 16 hours a day, 7 days a week, in the business. Most of
Respondent's trucks were in poor condition, with five out of eight operating, but only
two in fair running condition. Respondent had been unable to purchase newer
equipment for lack of funds for downpayments as well as sufficient credit standing
to procure more equipment loans. On these facts, Eugene had recommended to his
father early in 1964 that they should discontinue the operation but Respondent was
loath to do so because, although he had been running this business only 6 years, he
had been in the trucking business generally for over 26 years and felt he could still
find some way to carry on. Notwithstanding, his financial situation did not improve
9 Respondent advertised the older trucks for sale in local newspapers in July and later,
but got no responses Reed knew about these efforts, and that they were unsuccessful.
10 In June or July, when Eugene's truck broke down, he had inquired about rental rates
from a leasing concern, and discovered that the cost of leasing large trucks on a day
or trip basis would about equal his gross income per haul, so that leasing could not be
profitable.
11 The seriousness of his situation is shown by the nature and extent of these debts.
An item of $1,100 was 4 months of back rent owing 11/3 years to the landlord of the
garage; $3,000 covered loans to buy truck licenses and pay past Federal income taxes;
another $1,000 was borrowed to pay 1962 Federal taxes; $1,761 represented insurance
premiums past due for 1 years; $1,000 was a loan in early 1964 to buy license plates
for six of the then usable trucks, and the $20,000 and $18,000 loans from the bank
represented refinancings in 1962 to obtain more capital for the business
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
up to July 1, at which time he was delinquent on payments on local supply accounts,
one tire dealer was suing him to collect an overdue account, and a finance company
was threatening to repossess one truck for overdue payments on it. Just before the
election, Respondent had tried unsuccessfully to borrow more money from the bank
holding the $38,000 debt, secured by liens on all the trucks.
The drivers knew that business had been slow in early 1964 and that Respondent's
finances were shaky. When Respondent told the three drivers in June that he could
not afford to give the drivers a raise, Wineland offered to loan him money to get a
license for the truck Wineland was driving, so that Respondent could keep it running.
With this knowledge, it is clear that Respondent's early statements to drivers that it
could not afford to give the raises and benefits they asked were merely the repetition
of a harsh economic fact they already knew, and when he repeated that reason to
them after they joined the Union, and added the prophesy that he would have to
"close the doors" and cut back to a father-son operation if the Union won the election,
he was only clearly indicating to them a strongly probable, if not inevitable, con-
sequence of certification of the Union, which he could reasonably expect to present
him with the same demand for a union wage scale that the men themselves had
made, and which he could not possibly meet.12 In this context, I do not consider
Respondent's cutback prophesy as a coercive threat of reprisal if they voted for the
Union.13
However, I am compelled to conclude that Respondent's sudden grant of a sub-
stantial wage raise to Wineland, a senior driver,14 shortly after the filing of the
representation petition, and in direct reversal of his former refusal on economic
grounds, was a patent attempt to persuade a known and active union adherent to
abandon his union adherence. Respondent offers no explanation for the sudden
reversal, nor tries to show how the grant squares with its straitened economic con-
dition, or whether or not it conforms to any prior pattern of wage raises, if any such
had existed. Hence, I find that the raise was a coercive attempt to influence Wineland
against the Union, and violated Section 8(a) (1) of the Act.15 This coercive conduct
requires close scrutiny of Respondent's actions on the day of the election and there-
after.
Respondent's answer claims the termination of the drivers was for the economic
reasons on which he has adduced much cogent testimony, as found above. He now
argues that (1) their termination was a permanent action pursuant to a legitimate
discontinuance of that portion of its business requiring the use of outside employees
(other than the Eaborns), under the principle of Textile Workers Union v. Darlington
Mfg. Co., 380 U.S. 263, and (2) even if the discontinuance were temporary, he had
the legal right to lock out his employees in support of his brgaining position with the
Union, under the ruling in American Shipbuilding Co. v. N.L.R.B., 380 U.S. 300.
At the outset I must conclude from the facts found above, that after July 1,
Respondent did not permanently discontinue his business insofar as it required drivers
other than father and son, but only temporarily during the month of July, because the
testimony of both Eaborns indicates that they told customers only that they could
not haul for them temporarily due to the advent of the Union, that in July they did
not try to build up their operations until the Union approached them and made
known its demands, and that it was only after the Union had in effect waived its
demand for a contract for the time being that they began in September gradually to
expand the operation, as former customers called on them for services, by substitut-
ing brokers for former or new employees to supplement their own driving.
In the Darlington case, the Supreme Court established that (1) it is not an unfair
labor practice under the Act for an employer to close down and discontinue his entire
business, even if its liquidation is motivated by vindictiveness toward a union (380
U.S. at 273, 274), and (2) a partial closing of a business may be an unfair labor
practice "if motivated by a purpose to chill unionism in any of the remaining plants
12 The validity of this contention is shown by the fact that, if the wage and other
demands had been granted, Respondent's direct wage costs would have been increased at
once from $2 an hour to $2 50 an hour for three drivers, a 20-cent-an-hour raise for two
more, plus 7 cents an hour per man for seven-paid holidays, $6 per month per man for
pension payments, and about $8 per month per man for other fringe benefits, all being
figures supplied by the Union.
8 Adamson Company, Inc., 141 NLRB 273, cited by General Counsel is inapposite on
the facts.
U Before July 1, Wineland and Petkas had been the only regular drivers with long
service ; Holy and the Wades were recent hires.
w See The Bedford-Nugent Corp., 137 NLRB 1030, 1034; Tinley Park Dairy Co., d/b/a
Country Lane Food Store, 142 NLRB 683, 694.
EABORN TRUCKING SERVICE 1377
of the single employer and if the employer may reasonably have foreseen that such
closing would likely have that effect" (380 U.S at 274, 275). Respondent here had
only one plant, but he argues that, since he cut back to a father-son, or management-
only, operation, this was in effect a complete shutdown of its business to the extent
that it required "employees" within the meaning of the Act, which was legitimate
under the first principle of Darlington, regardless of motive, because no "employees"
remained thereafter whose statutory rights might have been affected or influenced
by the shutdown. The record supports this argument insofar as it shows that in
July and later Respondent tried constantly to sell off his older trucks, finally dis-
posing of two out of five. However, it is weakened by the fact that Respondent never
differentiated in his operations between the services of drivers and that of the Eaborns,
so that it cannot be said that he considered the sporadic father-son driving as a unit
or operation separate and distinct from the drivers. Hence, he never liquidated the
business fully, but only cut it back to a two-man operation temporarily. In its
single bargaining session with Respondent, the Union made it clear that, while it
did not claim the cutback was improper or unlawful, it still regarded the business as
an operating one and the cutback as temporary, when it notified Respondent that it
desired to negotiate with him any time he decided to "go back into business," i.e.,
with hired drivers. In light of this position, and the fact that Respondent operated on
a reduced scale for only 2 months and then began to expand its operations but with
the use of brokers, it is patent that the cutback was only partial and temporary, so
that the first Darlington principle stated above does not apply. However, although
Respondent had no hired drivers on his payroll, nor apparent need for them during
July and August and until he began to use brokers in September, I am satisfied from
the circumstances above that he viewed the cutback as temporary, with the drivers
subject to possible recall, depending upon a pickup in business and the nature and
extent of the Union's demands when presented. In this connection, I note that
Eugene Eaborn admitted that, absent the wage demands of the drivers (which would
have been echoed by the Union at the outset of bargaining, at least) Respondent
would have kept them on and "stuck it out" in trying to carry on the business, and
he also admitted to the Union in September that his father would gladly take them
back if he could get rid of the financial and maintenance headache involved in
operating the older trucks. It follows, therefore, that the laid-off drivers were con-
sidered by both parties as employees subject to recall. In this respect, the inquiry
required by the second principle of the Darlington decision comes into play, and
leads directly to Respondent's alternate defense, that the cutback was a legitimate
lockout of "employees."
On this point, the immediate wage demand of the five drivers after the election,
but before the union agent had even requested bargaining, and their plain threat not
to work for less, was notice to Respondent that they would strike if their demands
were not met at once. Respondent argues that, since he could not give them any
raise for economic reasons, and told them so, and they refused to accept that reason
(although they already knew of his financial plight), an impasse in bargaining had
been reached, which permitted him to lock out the drivers temporarily, under the
principle of American Shipbuilding Co. v. N.L.R.B., supra, in anticipation of an
immediate strike, solely in order to support his legitimate bargaining position, by
putting immediate economic pressure on the drivers (and their Union when it sought
bargaining) to modify their demands and thus secure more favorable contract terms.
The conversation between Respondent and the drivers on July 1 affords support for
this contention . Since the drivers on that date were repeating the same demand for
a graduated union scale with other expensive fringe benefits which Respondent had
already turned down for economic reasons, and making the demand in the form of
an ultimatum threatening an immediate strike, Respondent had reason to believe
that they would strike if he did not accede to their demand. Thus, though their
bargaining agent had not yet presented a formal demand, the elements of a true bar-
gaining impasse were present , created solely by the drivers. Respondent had no reason
at that time to believe that the Union would present any lesser demand when its
agent came to bargain, hence there was nothing to indicate that advent of the Union
would break the existing impasse. Nor did the picture change when Reed came to
bargain, for although he acknowledged that the drivers should not have made the
demand themselves, but waited for him to handle it, he said nothing to indicate that
he would consider wages or benefits at some figure lower than the drivers had
demanded. Instead, he recognized the harsh economic plight of Respondent when
he made no attempt to discuss wages or other benefits, raised no real objection to the
terminations or the economic necessity therefor, conceded that Respondent had a
right to cut back to a father-son operation, and at the close of the talk voluntarily
waived or suspended the Union's demand to negotiate a contract until such time as
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent resumed operations which he normally handled with hired drivers. He
thus recognized the existence of a temporarily unsolvable impasse on the all-important
issue of wages and other financial benefits. These facts alone would appear to bring
the case within the ruling of the American Shipbuilding Co. case.
However, Respondent's single palpable attempt to bribe one prominent union
adherent just before the election clearly shows his union animus, is significant proof
of his desire to undermine the Union's strength and avoid real bargaining with it, and
is a potent circumstance which brings the case outside the American Shipbuilding
Co situation.16 Furthermore, although Respondent was on notice from his talk
with Reed in July that the Union would expect to bargain about jobs for the term-
inated drivers when operations expanded, the record shows that he made no
attempt even to notify the Union when his business revived and he began to use
brokers to handle it; and when the Union protested about this in September and
sought to explore ways and means of getting Respondent's own trucks back into
service so that he could recall the drivers, Respondent in the single telephone talk
fended off every proposal with the same economic arguments, while professing will-
ingness to use the drivers if they would buy the old trucks, or continue to use brokers
even if the Union organized them. I think Respondent shirked his bargaining duty
at this point in two respects. The failure to notify the Union about his intent to
subcontract work to brokers, and his unilateral acts in subcontracting instead of
operating with hired drivers, are in all the circumstances some evidence of desire to
avoid negotiation with the Union as statutory bargaining agent, and show violation
of Section 8(a) (5) and (1) of the Act. Then, since Respondent had previously made
an effort to fulfill that duty in July by recognition of the Union with initial face-to-
face bargaining at its request, I think it was clearly incumbent on him to offer the
Union another face-to-face meeting in September (as against one telephone con-
versation), at which the parties could discuss the use of subcontractors and look for
methods of solving Respondent's economic dilemma and putting the laid-off drivers
back to work, particularly where Respondent had expressed willingness to meet the
Union's request for recall of the drivers if its truck problems could be solved. The
failure to have a real meeting, but engaging instead in a rather short discussion and
argument with the Union on the telephone, is another indication that Respondent
did not then wish to bargain bona fide with the Union.17 I am convinced that the
reason for his latter avoidance of a confrontation with the Union stems from the
rise in his business and income in the latter part of 1964 The record shows that in
the last 4 or 5 months of the year, his financial condition began to improve sub-
stantially, at least as regards income- he sold off three old trucks for $2,375, his
hauling income built up so that his gross income for 1964 was over $81,000, a record
for the 5 years ending with 1964,18 and his 1964 net income was over $7,300, which
was more than twice his net for 1963 and only slightly below the net for 1960 and
1961. At time of hearing, he was servicing all his former customers (except six)
including the steady and lucrative Railway account.19 While I cannot find or infer
that this marked improvement in his business would have in fact increased his ability
to pay higher wages or grant other benefits to drivers (in the face of his heavy debt
load), it was nevertheless a substantial change in his economic circumstances which
might have enabled fruitful collective bargaining on those demands leading to a
conceivable break in the impasse of July 1 through 15. It is also a fair inference that,
if Respondent had been compelled to discuss and reveal his rising current income in
a future meeting with the Union,20 these figures would have weakened his bargain-
"One circumstance underlying the decision of the Supreme Court in American Ship-
building Co was the lack of finding by the Board of employer union hostility or desire
to avoid its bargaining obligations under the Act (380 U.S. at 305).
17 Section 8(d) of the Act defines collective bargaining as the "performance of the
mutual obligation of the employer and the representative of the employees to meet at
reasonable times and confer in good faith . . . [ Emphasis supplied .] The Board has
long recognized that this definition encompasses collective bargaining as it has long been
historically practiced and normally involves personal conferences and negotiations be-
tween the parties. See P. Lorillard Company, 16 NLRB 684, 703; Washington National
Insurance Company, 57 NLRB 1657, 1660.
"Even with reduced operations in July and August, Respondent 's gross receipts for
the last 6 months of 1964 were over $48,000, or nearly 50 percent higher than the $33,000
gross income for the first 6 months.
19 The Railway account alone produced over $26,000 of gross revenue from Septem-
ber 13, 1964, to the end of the year, which is more than 50 percent of his gross income
of $48,155 for the last 6 months of the year.
20 N.L.R B. v. Truitt Mfg. Co., 351 U.S. 149; John S. Swift Company, Inc., 133 NLRB
185, 187, 188; Metloa Manufacturing Company, 153 NLRB 1388.
EABORN TRUCKING SERVICE 1379
ing position and perhaps strengthened the union demands, so that Respondent could
not have resisted those demands as successfully, or settled those issues as favorably,
as in July. This favorable change of circumstances probably gave him added incen-
tive to put off true bargaining with the Union as long as possible. Hence, I must
conclude that Respondent' s silence and unilateral use of brokers during September
and the following months in 1964 and 1965 betokened a continuing desire to avoid
collective bargaining, not an honest inability to meet wage and other demands, and
also that this same motive played a part in the abrupt layoff of July 1.
Respondent presents other defenses to counter the above circumstances. He argues
that he was not required to bargain with the Union about the use of brokers because
that had been part of his normal practice in the past, and the brokers had not been
used for work in his plant, hence unilateral subcontracting to brokers in 1964 was
not a variation from past practice which significantly affected employees, for which
reasons the basic principle of East Bay Union of Machinists, Local 1304, Steelworkers
(Fibreboard Paper Products Corp.) v N.L R.B, 379 U.S. 203, cannot apply here
to make subcontracting a mandatory subject of collective bargaining. He also tries
to distinguish that case by claiming that a requirement of bargaining with the Union
before he took the necessary economic step of eliminating a costly capital investment
in his business (the trucks) by the use of brokers would be an unwarranted inter-
ference with his right to run his business which overweighs the need for collective
bargaining on that subject. I find no merit in this contention for several reasons: (1)
The record shows that Respondent had used brokers in the past, where business
needs required it, to supplement the work of his regular drivers, himself, and his
son; there is no proof that he had ever used brokers to replace any or all of his
regular drivers in the normal course of business. Hence, I must conclude that the
sudden use of brokers late in 1964 to the exclusion of regular drivers was a substantial
variation from past practice, in that it involved subcontracting of all work formerly
done by hired drivers, thus eliminating their jobs, which was the most drastic
adverse change conceivable in terms and tenure of employment of employees in
the appropriate unit. This appears to bring the case squarely within the ruling
of the Supreme Court in Fibreboard, and makes the subcontracting to brokers a
mandatory subject of bargaining under the tests laid down by the Board in Westing-
house Electric Corporation (Mansfield Plant), 150 NLRB 1574, on the basis
of the Fibreboard decision . Further, Respondent's argument assumes that the Fibre-
board ruling cannot be construed to require him to delay subcontracting until bar-
gaining on it with the Union, and approval by the Union of that step. This mis-
construes the ruling of Fibreboard and the cases following it, which hold only that
Respondent must bargain in good faith with the Union about subcontracting, but do
not require him to accept or accede to any demands of the Union that he give up
brokers and rehire drivers; he is only required to meet and bargain with the Union to
give it reasonable opportunity to counter his legitimate complaint that he could not
afford to put dilapidated equipment back into service and hire drivers at union wages
to run them 21
Respondent 's corollary argument is, that he did in fact bargain in good faith with
the Union in that when the Union telephoned him in September and accused him of
using brokers, he admitted it, and his son explained why Respondent could not eco-
nomically revert to use of its own trucks and hire men to run them, discussed with
the Union its suggestions about buying or leasing newer equipment, and even offered
to rehire the laid-off drivers if they would buy his trucks (or furnish their own), or to
continue to use brokers after the Union had organized them. The Union offered no
other suggestions except to disapprove of Respondent's continued use of brokers in
servicing the Railway account. On its face this discussion is some evidence of a bona
fide attempt to negotiate the matter with the Union, which proved abortive. However,
it does not explain away Respondent's failure to notify the Union about its decision
to use brokers when it began such use. Since the July 1 layoff was only a temporary
and partial discontinuance of its operations, and the Union on July 15 notified
Respondent that it would not question that action but would bargain for the laid-off
men as and when Respondent expanded its operations, I have found that Respondent
was under a duty to notify the Union and give it a chance to negotiate, as soon as it
decided to start use of brokers, and its unexplained silence and secretiveness in tak-
ing that step is consistent with the inference that Respondent was thereby continuing
its attempts, begun with the coercive bribe to Wineland before the election , to under-
mine the Union and avoid bargaining with it.
See Fibreboard decision , 379 U.S. 203, 214.
217-919-66-vol . 156-88
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, Respondent intimates that it expanded its operations by use of brokers
only at the request of the Railway when that customer was faced with an emergency
in September, after its then hauler defaulted and its requirements for drayage steel
suddenly boomed. While unilateral use of brokers as a temporary measure in an
emergency situation at the request of customers can be justified in some situations,
as where it is necessitated by a strike,22 Respondent's use of brokers is clearly not
temporary, but permanent, as it has continued to the time of hearing, and it cannot
avail Respondent where he had already tried to undermine the Union before the
election and then failed in good faith to notify or bargain with the Union about his
use of brokers for other customers in September.
On all of the above considerations, I am impelled to conclude that (1) the layoff
of July 1 was caused in part by Respondent's desire to avoid bargaining with the
Union and in retaliation for the drivers' selection of the Union as their bargaining
agent, and was therefore discriminatory and in violation of Section 8(a)(3) and
(1) of the Act; and (2) Respondent's unilateral subcontracting of work to brokers in
September and later months, and failure to bargain face-to-face about it, amounted
to a refusal to bargain in good faith with the Union, in violation of Section 8(a)(5)
of the Act.23
HI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section II, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I will
recommend that he cease and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act.
Having found that Respondent unlawfully terminated drivers, in part because of
their union and concerted activities, and that Respondent has since resumed opera-
tions by subcontracting out the work formerly done by them, I shall recommend
that Respondent offer John G. Wineland, William R. Petkas, John Hoff, Douglas
Wade, and Percy Wade immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority or other rights and privi-
leges, and make them whole for any loss of pay they suffered by reason of Respond-
ent's discrimination against them, by payment to each of a sum of money equal to
that which he would normally have earned, absent the discrimination against him,
from the date of his termination to the date of the offer of reinstatement, less net earn-
ings during said period, the backpay to be computed in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289, and to include interest at
the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co,., 138
NLRB 716. I will also recommend that Respondent preserve and make available to
the Board, on request, all records necessary and proper for determining the amount
of backpay due under the terms of this Recommended Order.
Having found that Respondent failed to fulfill his statutory bargaining obligation,
I shall also recommend that he be ordered to bargain in good faith, upon request,
with the Union as the exclusive representative of his employees in the appropriate
unit, and, if an understanding is reached, embody such understanding in a signed
agreement.
In view of the scope and variety of the unfair labor practices found, I shall also
recommend the issuance of a broad cease-and-desist order.
Upon the foregoing findings of fact, and on the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce , and the Union is a labor
organization within the meaning of the Act.
= See, for example, Empire Terminal Warehouse Company, 151 NLRB 1359.
23 See Esti Nesderman, et al., d/b/a Star Baby Co., 140 NLRB 678, 680, 681; Mayer
B. Cohen, et al., d/b/a Riverside Wholesale Distributors , 142 NLRB 580, 583, 586 (in-
volving the ticketing operation).
DEKALB TELEPHONE COOPERATIVE 1381
2. By his lockout and discontinuance of use of hired drivers in his operations, and
termination of such drivers, thereby discouraging membership in a labor organiza-
tion , Respondent has engaged in and is engaging in unfair labor practices in violation
of Section 8(a) (3) of the Act.
3. The said Union has been since July 1, 1964, the exclusive bargaining represent-
ative of employees of Respondent in an appropriate unit consisting of all truck-
drivers at his Pittsburgh, Pennsylvania , terminal , excluding office clerical employees,
professional employees , guards, and supervisors as defined in the Act.
4. By unilateral lockout and discontinuance of use of hired drivers in his opera-
tions and resumption of such operations by subcontracting the same to brokers, and
by failing to meet and bargain with said Union thereon, Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
5. By the above conduct, and by offering wage raises to employees to induce them
to abandon support of said Union , Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed to them by Section 7 of the
Act, and has thereby engaged in and is engaging in unfair labor practices in violation
of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
DeKalb Telephone Cooperative and Communications Workers of
America, AFL-CIO . Case No. 26-CA-21?1. February 10, 1966
DECISION AND ORDER
On October 28, 1965, Trial Examiner Frederick U. Reel issued his
Decision in the above -entitled proceeding , finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action , as set forth in the attached 'Trial Examiner's Deci-
sion. Thereafter , the Respondent filed exceptions to the Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended , the National Labor Relations Board has
delegated its powers in connection with this case to a three -member
panel [Chairman McCulloch and Members Fanning and Brown].
The 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 Decision , the exceptions and brief , and the entire record
in this case, and hereby adopts the findings, conclusions,1 and recom-
mendations of the Trial Examiner , except as modified herein.
1We find it unnecessary to decide whether Respondent violated Section 8(a) (3) as well
as 8(a ) ( 1) Inasmuch as the remedy for the violation of Section 8(a) (3) would be the
same as for the violation of Section 8(a) (1). Accordingly , we do not adopt the Trial
Examiner's comments as to an 8 (a) (3) violation.
156 NLRB No. 125.