Eazor Express

National Labor Relations Board - Board Decisions

Jul 31, 1984

271 N.L.R.B. 495 (N.L.R.B. 1984)

EAZOR EXPRESS
Eazor Express, Inc. and Truck Drivers, Oil Drivers,
Filling Station & Platform Workers Local 705
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Cases 6-CA-15619 and 6-CA-15872
31 July 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed 7 July 1982 by Truck Driv-
ers, Oil Drivers, Filling Station & Platform Work-
ers Local 705 a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America (the Union), and received by Eazor Ex-
press, Inc. (the Respondent), the General Counsel
of the National Labor Relations Board, by the Re-
gional Director for Region 6, issued a complaint
and notice of hearing on 31 August 1982 against
the Respondent, alleging that the Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of
Section 8(a)(5) and (I) and Section 2(6) and (7) of
the National Labor Relations Act. Copies of the
complaint and notice of hearing before an adminis-
trative law judge were served on the parties to this
proceeding. On 10 September 1982 Respondent
filed its answer to the complaint denying the com-
mission of any unfair labor practices.
Thereafter, upon another charge filed by the
Union 21 October 1982 and received by the Re-
spondent, the General Counsel issued a consolidat-
ed amended complaint against the Respondent, to-
gether with an order consolidating cases and notice
of hearing, alleging that the Respondent had en-
gaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
Copies of the order consolidating cases and con-
solidated amended complaint and notice of hearing
were served on the parties to this proceeding. On
15 December 1982 the Respondent filed its answer
to the consolidated amended complaint denying the
commission of any unfair labor practice.
Thereafter, on 19 and 26 January 1983 and 1
February 1983, the Respondent, the Union, and the
General Counsel, respectively, entered into a stipu-
lation of facts and joint motion to transfer this pro-
ceeding directly to the Board for findings of fact,
conclusions of law, and an order. The parties
agreed that the charges, complaint and notice of
hearing, order consolidating cases, consolidated
amended complaint and notice of hearing, answer
to complaint, answer to consolidated amended
complaint, and the stipulation of facts, including
271 NLRB No. 84
the exhibits attached thereto, constituted the entire
record in this case and that no oral testimony was
necessary or desired by any of the parties. The par-
ties waived a hearing and the taking of testimony
or the submission of evidence before an administra-
tive law judge, and the issuance of an administra-
tive law judge's decision. On 24 August 1983 the
Board approved the stipulation of facts and or-
dered the proceeding transferred to the Board. The
Board also granted permission and time for the
filing of briefs. Thereafter only the General Coun-
sel filed a brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the basis of the stipulation, brief, and the
entire record in this proceeding, the Board makes
the following findings.
1. BUSINESS OF THE EMPLOYER
Eazor Express, Inc. is and has been at all materi-
al times a Pennsylvania corporation with its princi-
pal office and place of business in Pittsburgh, Penn-
sylvania, and facilities located in various States of
the United States, including a facility in Chicago,
Illinois, where it has been engaged in the interstate
and intrastate transportation of freight and com-
modities. Only the Respondent's Chicago, Illinois
general commodities terminal is involved in this
proceeding. During the 12-month period ending 31
July 1982, the Respondent, in the course and con-
duct of its business operations, derived gross reve-
nue in excess of $50,000 for the transportation of
freight and commodities from the Commonwealth
of Pennsylvania to points outside Pennsylvania.
The parties stipulated, and we find, that the Re-
spondent is, and has been at all material times, an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act, and that it
will effectuate the policies and purposes of the Act
to assert jurisdiction.
11. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that Truck
Drivers, Oil Drivers, Filling Station & Platform
Workers Local 705 a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Stipulated Facts
The Union has been the exclusive collective-bar-
gaining representative of Respondent's local cart-
age drivers in the Respondent's General Commod-
495
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ities Division (GCD) located in Chicago, Illinois.'
This recognition was embodied in a series of col-
lective-bargaining agreements, the most recent of
which was effective by its terms for the period of I
April 1979 to 31 March 1982. In addition to its
GCD, the Respondent also operated a Special
Commodities Division (SCD). In the Chicago area,
the Respondent's SCD was located in Hammond,
Indiana. The GCD generally hauled less than full
loads of products such as packages and appliances;
the SCD generally hauled full truckloads of prod-
ucts such as steel, glass, roofing materials, and
other low tariff items. The Union never represent-
ed employees in the SCD.
On 1 March 19822 a certificate of incorporation
was issued for Eazor Special Services, Inc. (Eazor
Special) a wholly owned subsidiary of the Re-
spondent formed to do the work formerly done by
the SCD. The assignment and assumption transfer-
ring the assets and liabilities of the SCD to Eazor
Special took place on 31 July.
In the meantime, on 26 February, the Respond-
ent notified the Union that it intended to close its
GCD, including its Chicago operations in that divi-
sion. As of that date the Respondent began wind-
ing down its GCD operations and about 20 March
it closed its Chicago facility and laid off all em-
ployees represented by the Union.
On 7 June the Union filed a grievance claiming
that since 1 January to 31 March the Respondent
violated the subcontracting provision and related
provisions in the collective-bargaining agreement. 3
Also on 7 June the Union, by letter, requested the
Respondent to furnish it with certain information,
including records on pickups and deliveries of
commodities covered by the collective-bargaining
agreement, that had application to the work per-
formed within the classification contained in the
contract. 4 The Respondent did not provide any of
the requested information.
Subsequently, notice of application filed with the
Interstate Commerce Commission (ICC) to transfer
to Eazor Special Respondent's operating authority
for the transport of general commodities in States
I The parties stipulated that this unit was an appropriate unit for the
purposes of collective bargaining within the meaning of Sec. 9(b) of the
Act, and that the Union was the exclusive representative of these em-
ployees by virtue of Sec. 9(a) of the Act.
2 All dates hereinafter are in 1982 unless otherwise indicated.
s The grievance is being held in abeyance pending resolution of the
issues in this proceeding.
I The specific information request was for "records-such as corre-
spondence, freight or other bills-from I January 1982 through 31 March
1982, and from I April 1982 to date concerning pick-ups and deliveries of
commodities which were covered by the Cartage Agreement and had ap-
plication to the work performed within the classifications contained in
the Cartage Agreement and which were and are being made by Eazor,
including any subsidiary, division of operations, such as special commod-
ities division, general commodities division, and Consumer Transport."
including Illinois appeared in the 1 August edition
of the Federal Register. By letter dated 22 Septem-
ber, the Union requested the Respondent to pro-
vide it information as to whether Eazor Special
was, or would be, performing work covered by the
collective-bargaining agreement.s The Respondent
did not respond to the Union's information request.
B. Discussion and Conclusions
Based on the facts to which the parties have stip-
ulated, we find that the Respondent has refused to
bargain in violation of Section 8(a)(5) and (1) of the
Act by failing to provide requested information
concerning possible precontract expiration breaches
of the collective-bargaining agreement's subcon-
tracting and related provisions. However, we find
that the Respondent was under no duty to provide
information pertaining to postcontract expiration
matters.
It is well established that an employer must pro-
vide a union with requested information "if there is
a probability that such data is relevant and will be
of use to the union in fulfilling its statutory duties
and responsibilities as the employees' exclusive bar-
gaining representative." Associated General Contrac-
tors of California, 242 NLRB 891, 893 (1979).6 The
Board uses a liberal, discovery-type standard to de-
termine whether information is relevant, or poten-
tially relevant, to require its production. Informa-
tion necessary for proceeding and arguing griev-
ances under a collective-bargaining agreement, in-
cluding that necessary to decide whether to pro-
ceed with a grievance or arbitration, must be pro-
vided as it falls within the ambit of the parties'
duty to bargain. s
Judged against these standards, it is clear that the
information requested by the Union as it concerns
matters arising during the life of contract is rele-
vant and necessary to processing the pending
grievance and to monitoring the terms of the con-
tract while it was in effect. The Union requested
only information on pickups and deliveries covered
by the contract and applicable to work performed
5 The Union requested the following information:
"I. Whether Eazor Special Services, Inc. is performing work
within the classification of drivers described in the Cartage Agree-
ment, and the date when it began.
2. If the answer to paragraph I is in the negative, does Eazor Spe-
cial Services Inc. intend to perform such work?
3. If the answer to paragraph 2 is in the affirmative, then
(a) the appropriate date such work will begin;
(b) the address of each terminal-whether owned, leased or
used-in the area of the Cartage Agreement which will be used in
the performance of the work referred to in paragraph 1."
e Enfd. 633 F.2d 766 (9th Cir. 1980). See generally NLRB v. Acme In-
dustrial Co., 385 U.S. 432 (1967).
? NLRB v. Truit Mfg. Co., 351 U.S. 149 (1956).
NLRB v. Acme Industrial, above. See, e.g., Bickerstaff Clay Products,
266 NLRB 983 (1983).
496
EAZOR EXPRESS
by those in classifications contained in the contract.
The Respondent's only proffered defense on this
matter, as stated in its answer to the complaint, is
that it had never been requested or required to pro-
vide such information in any prior arbitration cases
in which it had been involved. There is no evi-
dence in the stipulation concerning what prior in-
formation requests, if any, had been made by the
Union. In light of this factor, we agree with the
General Counsel that there can be no past practice
or waiver argument of which the Respondent can
avail itself. To the extent the Respondent may be
contending that the requested information is not
relevant to the proceeding, its contentions are
devoid of appropriate supporting argument and,
considering the nature of the information request-
ed, without merit. Thus we find that the Respond-
ent violated its duty to bargain by failing to pro-
vide information requested by the Union for the
time period of 1 January 1982-31 March 1982.
However, the Union's additional requests for in-
formation stand on a different footing from the re-
quest discussed above. The stipulated facts indicate
that the Respondent gradually closed its Chicago
GCD terminal beginning on 26 February, and
ending on 20 March, just a week prior to the expi-
ration date of the contract. The Respondent duly
gave notice to the Union of its intent to close the
facility. There is no evidence in the stipulated facts
that the Respondent failed to meet and bargain
with the Union over the decision to close the Chi-
cago GCD terminal, or the effects of that deci-
sion.9 There are no allegations that the Respondent
unlawfully closed the facility, or unlawfully laid off
its employees. Although the notice in the Federal
Register stated that the Respondent had applied to
transfer its authority to transport general commod-
ities to Eazor Special, the record before us is
devoid of any evidence that Easor Special is a joint
employer, single employer, alter ego, and/or suc-
cessor employer of the Respondent. Despite this set
of facts, the General Counsel would have this
Board order the Respondent to divulge information
to the Union concerning postclosing and postcon-
tract expiration matters. This we shall not do. It
may be that, in certain circumstances, the informa-
tion requested by the Union should be provided by
an employer. However, the facts here indicate that
all employees had been laid off pursuant to a
lawful closing of the Chicago GCD terminal.10
9 See generally First National Corp. v. NLRB, 452 U.S. 666 (1981).
1O The General Counsel asserts that the timing of the incorporation of
Eazor Special and the application to transfer general commodities ICC
rights to Eazor Special indicates that the Respondent concealed informa-
tion and deceived the Union when it closed the Chicago facility. We are
constrained to note that there are no complaint allegations concerning
Since the facility closed and the contract had ex-
pired, no matters remained thereafter for which the
Union was entitled to obtain information. 1 That is,
there were no employees remaining in the Re-
spondent's employ represented by the Union con-
cerning whom a bargaining obligation could be
generated. A union's right to bargain, and thereby
to obtain information, does not extend in perpetui-
ty. The facts in this case indicate that the Respond-
ent terminated its operation on 31 March. Hence,
there was no obligation after that date for the Re-
spondent to provide the requested information to
the Union. Accordingly, we shall dismiss those al-
legations of the complaint concerning the 7 June
request of information from I April "to date," and
also those allegations concerning the 22 September
letter.
On the basis of the foregoing findings of fact and
the entire record, we make the following
CONCLUSIONS OF LAW
I. Eazor Express, Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Truck Drivers, Oil Drivers, Filling Station &
Platform Workers Local 705, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By refusing to provide information concerning
records such as correspondence, freight, or other
bills from 1 January 1982 to 31 March 1982, relat-
ing to pickups and deliveries or commodities which
were covered by the collective-bargaining agree-
ment between the Respondent and the Union,
which had application to the work performed
within the classifications contained in that agree-
ment, and which were being made by the Respond-
ent, including any subsidiary, division, or oper-
ation, the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of
Section 8(aX5) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
these issues, and that the Respondent has not been charged with any vio-
lations of the Act on these matters.
" The General Counsel attempts to surmount this critical problem by
asserting that there is no evidence that either party gave notice of a
desire to terminate the collective-bargaining agreement, or that either
party requested bargaining. By virtue of the closing of the facility and
the expiration of the contract, we assume, absent facts to the contrary,
that the contractual obligations ended at that point. We emphasize that
we are governed here by the stipulated facts of the case.
497
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that the Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act,
we shall order that it cease and desist therefrom
and take certain affirmative action in order to ef-
fectuate the purposes of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Eazor Express, Inc., Pittsburgh,
Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Truck
Drivers, Oil Drivers, Filling Station & Platform
Workers Local 705, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, by refusing to supply relevant
information upon request.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Furnish on request to the Union records such
as correspondence, freight, or other bills, from 1
January 1982 to 31 March 1982, relating to pickups
and deliveries of commodities which were covered
by the collective-bargaining agreement between the
Respondent and the Union, which had application
to the work performed within the classifications
contained in that agreement, and which were being
made by the Respondent, including any subsidiary,
division, or operation.
(b) Post at its offices copies of the attached
notice marked "Appendix."' 2 Copies of the notice,
on forms provided by the Regional Director for
Region 6, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
"2 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
-WE WILL NOT refuse to bargain collectivley with
Truck Drivers, Oil Drivers, Filling Station & Plat-
form Workers Local 705 a/w International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, by refusing, upon request,
to furnish information necessary and relevant for
the Union's use in policing and administering the
collective-bargaining agreement between us and the
Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, furnish the Union with
records such as correspondence, freight, or other
bills, from 1 January 1982 to 31 March 1982, relat-
ing to pickups and deliveries of commodities which
were covered by the collective-bargaining agree-
ment between us and the Union, which had appli-
cation to the work performed within the classifica-
tions contained in that agreement, and which were
being made by us, including any subsidiary, divi-
sion, or operations.
EAZOR EXPRESS, INC.
498