Emeryville Trucking, Inc.

National Labor Relations Board - Board Decisions

Mar 24, 1986

278 N.L.R.B. 1112 (N.L.R.B. 1986)

1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emeryville Trucking, Inc. and Melvin Packer. Case
6-CA-14900
24 March 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 24 June 1985 Administrative Law Judge
Burton S. Kolko issued the attached decision. The
Respondent filed exceptions, a supporting brief,
and a request for oral argument. The General
Counsel filed an answering brief, and also filed lim-
ited cross-exceptions and a supporting brief. The
Respondent thereafter filed an opposition brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below. and orders that the Re-
spondent, Emeryville Trucking, Inc., Warrendale,
Pennsylvania, its officers , agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wal! Products , 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir . 1951).
We have carefully examined the record and find no basis for reversing
the findings. The Respondent also contends , inter alia, that the judge pre-
determined the case adverse to the Respondent before all the evidence
was taken and should have disqualified himself pursuant to its posthearing
motion for disqualification. Careful review of the record shows no state-
ments or other evidence indicating bias or prejudice against the Respond-
ent by the judge . We therefore find no merit in the Respondent's conten-
tion that the judge erred in denying its posthearing motion for disqualifi-
cation of the judge.
The Respondent has requested oral argument. The request is denied as
the record , exceptions, and briefs adequately present the issues and the
positions of the parties.
2 We shall modify the judge 's recommended Order to set forth the
names of the 31 drivers discriminatorily laid off on 14 September 1981,
and to include therein , pursuant to Sterling Sugars, 261 NLRB 472 ( 1982),
the affirmative requirement that the Respondent remove from its records
any reference to those layoffs . The Respondent shall also be required to
provide written notice of expunction to each of the discriminatorily laid-
off drivers and to inform them that the Respondent 's conduct will not be
used as a basis for future personnel action against them.
The judge 's recommended Order is also modified to include a provi-
sion directing the Respondent to preserve and make available to the
Board copies of pertinent records and documents necessary to compute
the amount of backpay due those discriminatorily laid off.
Member Johansen would terminate backpay 30 September 1981, the
date the Respondent terminated its relationship with Helms for lawful, in-
dependent business reasons.
1. Substitute the following as paragraph 2(b).
"(b) Make whole the following drivers for any
loss of pay and benefits that they suffered by
reason of Emeryville's having caused their layoff:
"Dennis Baker Floyd Baldwin
Lonnie Bemis Terry Begley
Charles Bronson David Brown
Steve Caltagirone Tom Chapot
Donald Disko Anthony Elkins
Charles Gerson Gary Hussey
Tom Joyce Lewis Linhart
Guy McCool Donald Miller
David Miller Harry Mulder
William Oliver John O'Sche
Melvin Packer Harold Parks
Wallie Rohrer Mark Ross
David Schirm Shane Schandeimeier
Robert Stahura John Stromberg
James Tomcho Gary Vuchinich"
Tom Writt
2. Insert the following paragraphs as 2(c ) and (d)
and reletter subsequent paragraphs.
"(c) Remove from its files any reference to the
14 September 1981 layoff of the above-listed driv-
ers and notify each of them in writing that this has
been done and that evidence of these layoffs will
not be used against them in any way.
"(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards , personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order."
3. Substitute the attached notice for that of the
administrative law judge.
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.
278 NLRB No. 153
EMERYVILLE TRUCKING
WE WILL NOT lay off or cause the layoff of em-
ployees who file grievances or who help other em-
ployees file grievances , or who engage in union ac-
tivities.
WE WILL NOT refuse to employ or refuse to
transfer employees who engage in union activities.
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 offer employment to driver Melvin
Packer.
WE WILL pay backpay with interest to the fol-
lowing drivers whose layoffs we caused by cancel-
ling truck leases with Helms Express:
Dennis Baker Floyd Baldwin
Lonnie Bemis Terry Begley
Charles Bronson David Brown
Steve Caltagirone Tom Chapot
Donald Disko Anthony Elkins
Charles Gerson Gary Hussey
Tom Joyce Lewis Linhart
Guy McCool Donald Miller
David Miller Harry Mulder
William Oliver John O'Sche
Melvin Packer Harold Parks
Wallie Rohrer Mark Ross
David Schirm Shane Schandeimeier
Robert Stahura John Stromberg
James Tomcho Gary Vuchinich
Tom Writt
WE WILL remove from our files any reference to
the discriminatory layoff of the above-listed driv-
ers, and WE WILL notify each of them that this has
been done and that evidence of these unlawful lay-
offs will not be used as a basis for future personnel
action against them.
EMERYVILLE TRUCKING, INC.
Charles H. Saul, Esq., for the General Counsel.
Anthony P. Picadio, Esq., of Pittsburgh, Pennsylvania, for
the Respondent.
DECISION
STATEMENT OF THE CASE
BURTON S. KoLKO, Administrative Law Judge.
Melvin Packer drove an over-the-road tractor trailer that
was leased by Emeryville Trucking to Helms Express.
Helms was an Interstate Commerce Commission licensed
common carrier, and the loads that Packer carried often
were loads that Helms was delivering under its ICC au-
thority. Emeryville was Helms '. agent in Warrendale,
Pennsylvania, for soliciting customers and for hiring, dis-
patching, and controlling the drivers who drove out of
the Warrendale terminal . Packer was one such driver.
Packer had succeeded in pursuing a grievance for
being forced by Emeryville to decline Helms' loads and
1113
to return to Emeryville's terminal empty from Detroit.
Packer filed the grievance under the terms of the collec-
tive-bargaining agreement to which Helms was a party.
Helms would not pay the grievance award and referred
it to Emeryville. Emeryville 's president , Phillip Rezze-
tano, told Packer that if Emeryville had to pay Packer
what he had been awarded by the grievance panel,
Packer would be through driving for Emeryville. When
Packer insisted on picking up his check , Rezzetano can-
celed the leases to Helms of the 30 trucks whose drivers
were junior to Packer and then canceled the lease on the
truck that Packer was driving.
The General Counsel alleges that Emeryville violated
Section 8(a)(3) and (1) of the Act by these and succeed-
ing actions . Emeryville denies that it did so, its denial
based both on its interpretation of the facts and on its de-
fense that it was not Packer's employer , but was merely
Helms' agent in hiring him. I find that Emeryville did
cause the layoff of Packer and 30 others, that it was
Packer's employer jointly with Helms, and that it has
violated the Act. ' Regarding a second round of lease
cancellations that occurred 10 days after the Packer inci-
dent, I dismiss the complaint.
1. THE JOINT EMPLOYER ISSUE
The threshold issue is the relationship between Helms
and Emeryville , because the General Counsel is proceed-
ing on the theory that they were joint employers of
Packer and the other drivers whose truck leases with
Helms were terminated by Emeryville . For its part,
Emeryville denies that it was an employer rather than
being merely the agent for Helms.
The joint employer concept deals with "independent
legal entities that have merely `historically chosen to
handle jointly . . . important aspects of their employer-
employee relationship ."' NLRB v. Browning-Ferris Indus-
tries, 691 F.2d 1117, 1122 (3d Cir . 1982), quoting from
NLRB v. Checker Cab Co., 367 F.2d 692, 698 (6th Cir.
1966).
Under this standard , the question of "joint employ-
er" status is a factual one and requires an examina-
tion into whether an employer who is claimed to be
a "joint employer" "possessed sufficient control
over the work of the employees to qualify as a joint
employer with [the actual employer]."
1 29 U.S.C. §§ 158(a)(3) and 158 ( a)(1).
The complaint issued on 17 December 1981. Although it names both
Emeryville Trucking and Helms Express as respondents, Helms Express
and the General Counsel reached a settlement that was approved by the
administrative law judge over the objection of Emeryville. After the
hearing, which concluded on 7 December 1984, Emeryville filed a
motion for disqualification of the administrative law judge. The motion is
without merit and is denied. The General Counsel's motion to correct the
transcript is granted.
The record contains two transcript volumes that begin with page 1.
The first of such volumes is dated 22 November 1983, the day when the
record was opened and some procedural matters were discussed, and it
contains pages 1-8. The second such volume is dated 3 December 1984,
contains pp. 1-53, and is the first of four volumes that contain testimony.
The final volume of transcript is dated 7 December 1984, contains pp.
615-625, and contains no testimony.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Browning-Ferris, supra at 691 F .2d 1121, quoting from
Boire Y. Greyhound Corp., 376 U.S. 473, 481 (1964). Be-
cause the court 's decision in Browning-Ferris states the
law so well, and because it is in the third Circuit that
this case arises, further quotation from that decision is in
order.
In "joint employer" situations no finding of a
lack of arm 's length transaction or unity of control
or ownership is required , as in 'single employer'
cases . As this Circuit has maintained since 1942,
"[i]t is rather a matter of determining which of two,
or whether both, respondents control, in the capac-
ity of employer, the labor relations of a given group
of workers." N.L.R.B. v. Condenser Corp. of Amer-
ica, supra , 128 F.2d at 72 (citations omitted). The
basis of the finding is simply that one employer
while contracting in good faith with an otherwise
independent company, has retained for itself suffi-
cient control of the terms and conditions of employ-
ment of the employees who are employed by the
other employer . Walter B. Cooke, 262 NLRB No. 74
(1982) (slip op. at 31). Thus, the "joint employer"
concept recognizes that the business entities in-
volved are in fact separate but that they share or
co-determine those matters governing the essential
terms and conditions of employment. C.R. Adams
Trucking, Inc., 262 NLRB No. 67 (June 30, 1982)
(slip op . at 5); Ref-Chem Co. v. NLRB, 418 F.2d
127, 129 (5th Cir. 1969); N.L.R.B. v. Greyhound
Corp., 368 F.2d 778, 780 (5th Cir. 1966).
The Board recently has expressed continued adherence
to the Browning-Ferris principles , Laerco Transportation,
269 NLRB 324 (1984), see also Clinton's Ditch Coopera-
tive, 274 NLRB 728 (1985). As stated by the Board, to
resolve the instant issue we look to determine which
"matters relating to the employment relationship such as
hiring, firing, discipline , supervision and direction" are
"meaningfully affect[ed]" by Emeryville and by Helms.
Laerco Transportation, supra, 269 NLRB at 325.2
A. Emeryville's Relationship with Helms and with the
Drivers
Emeryville is the owner of a fleet of tractor -trailer
trucks that over the years it leased to various common
carriers for use in the freight hauling business. Emery-
ville is owned by Phillip Rezzetano and his brother, John
Rezzetano.
Emeryville leased its fleet of trucks to the Astro Divi-
sion of Helms Express . Each tractor-trailer unit was cov-
ered by a separate written equipment lease under which
Helms agreed to pay Emeryville 33 percent of freight
2 It is not alleged that Helms and Emeryville constitute a "single em-
ployer," which if it were would require that we determine whether they
have : (1) common ownership or financial control , (2) common manage-
ment, (3) centralized control of labor relations , and (4) interrelated oper-
ations . See Radio Union v. Broadcast Service of Mobile, 380 U.S. 255
(1965). Therefore, I discount U.S. Steel Corp., 270 NLRB 1318 (1983),
cited by Respondent , because it applies a "single employer" analysis to
what is apparently a "joint employer" situation . See also John Breuner
Co., 248 NLRB 983 (1980).
revenues for rental of the tractor and 13 percent for
rental of the trailer . Each lease stated:
The Equipment which is the subject of the Lease
shall be driven by an employee of the lessee at all
times that it is in the service of the lessee . . . . The
lessee expressly reserves the right to control the
manner, means and details of, and by which the
driver of such leased Equipment performs his serv-
ices, as well as the ends to be accomplished.
In accordance with this provision , the equipment rented
to Helms was driven by drivers who were hired by and
employed by Helms.
In addition to the equipment leases, Emeryville was a
party to an agency agreement with Helms under which
Emeryville agreed to act as Helms' agent in the solicita-
tion of freight business in an exclusive geographical terri-
tory that included parts of Pennsylvania , Ohio, and Indi-
ana. Emeryville agreed:
7. To comply with all the rules, policies, and proce-
dures from time-to-time established by the carrier in-
cluding, but not limited to, the control of drivers'
logs, the verification of hours of service, and inspec-
tion of vehicles.
9. To advance to drivers not more than the percent-
age of revenue and/or other maximum amount as
the carrier may from time-to-time prescribe.
10. To execute permanent leases only on lease forms
supplied by carrier and in the manner prescribed by
the carrier and to make no commitment to any
owner regarding the lease of equipment nor to any
driver applicant regarding employment without the
express prior approval of carrier.
The drivers who were hired by Helms to drive the
trucks leased to Helms by Emeryville were members of
Teamsters Local Union No. 800. Their terms and condi-
tions of employment were established by the National
Master Freight Agreement and Eastern Conference Area
Iron and Steel Rider entered into on behalf of the drivers
by the Teamsters National Freight Industry Negotiating
Committee. Helms was a signatory to the National
Master Freight Agreement, and Emeryville was not.
Emeryville did not participate in the negotiations that
led to the Master Freight Agreement and the Iron and
Steel Supplemental Agreement.
The method in which the drivers and trucks were dis-
patched was set forth in the National Master Freight
Agreement . The drivers were paid by Helms by means
of a Helms payroll check. The Helms payroll checks
were mailed by Helms to Emeryville for distribution by
Emeryville . Because Emeryville was required under its
equipment leases with Helms to pay fuel and other main-
tenance expenses for the equipment , Emeryville would
advance expense money to drivers. The drivers were ob-
ligated to return the unused portion of the advanced ex-
pense money to Emeryville . Emeryville was authorized
by the drivers to cash the Helms payroll checks and to
reimburse itself for any unsettled expenses from the pro-
EMERYVILLE TRUCKING 1115
ceeds of the payroll checks, remitting the balance to the
drivers with an Emeryville check. However, in most
cases the driver would settle his expense advance with
Emeryville at the conclusion of a trip , and he would
then receive the Helms payroll check for the applicable
pay period.
A driver would receive money from Emeryville when
he received payments for sick days or vacation. These
payments were made from a fund administered by
Emeryville for Helms . The fund was created by Helms
by paying into it 3 percent of the gross freight revenues
generated on trucks domiciled out of the Warrendale ter-
minal . Although Emeryville administered the fund for
Helms, a driver 's eligibility for payments for the fund
was determined by the National Master Freight Agree-
ment, and Emeryville would make payments from this
fund as directed by Helms.
With respect to hiring drivers, Emeryville had author-
ity to receive a driver's application , after which a driver
was placed on a 30-day probationary status . Helms had
the final decision to put the drivers on permanent status
or to reject the application . Grievances were . paid and
processed by Helms, although sometimes the payment
was made by Emeryville. The trucks leased to Helms
carried Helms' markings.
B. Emeryville 's Control of its Trucks
From the above recitation , it appears that the normal
indicia of the employer -employee relationship are met by
Helms alone. But a closer look at Emeryville's role in
the day-to-day operations shows that it , in very substan-
tial degree , controlled how the drivers performed their
jobs to the point of laying them off or firing them if
Emeryville 's own standards were not met . This control
over dispatch and discipline is sufficient to render
Emeryville a joint employer with Helms.
The key to this finding is an understanding of Emery-
ville's control over its trucks, a control that extends
beyond the passivity that Emeryville would have us be-
lieve inheres as a result of its being a lessor to Helms.
For as important as the Helms agency and lease arrange-
ments were to Emeryville, its "bogey " with the United
States Steel Corporation loomed larger . That "bogey"
with U.S. Steel was a commitment by private agreement
that Emeryville would move whatever loads that U.S.
Steel needed moved , and would do so on one-half day's
notice . The Rezzetanos had worked hard for this busi-
ness from U.S. Steel, and not even their obligations to
Helms stood in the way of their making Emeryville's
trucks available to U.S. Steel on an as-needed basis. This
need to please U.S. Steel created some tension, which
manifested itself often in terms of outbursts and threats
of discharge to drivers who disrupted the pattern of
having trucks that were leased to Helms nevertheless
stay sufficiently close to Warrendale to be diverted to
U.S. Steel . Emeryville's drivers were obligated to call.in
to Emeryville before taking on each new load, and even
if a Helms load was "on the board" the drivers were
denied permission to take that load if by so doing they
would be diminishing the Rezzetanos'. ability to route
that truck to the U.S. Steel dock on sudden notice. In
fact , this case arises out of a circumstance where Helms'
loads were denied to a driver by Emeryville.
Driver Melvin Packer had delivered a load in the De-
troit, Michigan area and was at a Detroit terminal of
Helms , where he was offered a load by the Helms agent
that was destined for North Carolina . Packer told the
agent he would take it, but called Emeryville to inform
the Rezzetanos of the load and to receive permission for
it. Packer was informed by Emeryville that he was not
to take the Helms load to North Carolina . Packer then
called to different terminals and was able to get a load
going to New York City. He then again called Emery-
ville to receive permission to take the load , but was told
that he was not to haul that load either . Packer then told
the Emeryville dispatcher , Robert Rezzetano , that it was
obvious that he did not want Packer to haul a load. He
asked, "Why don 't you bring me home instead of me
hanging around?" Rezzetano laughed and instructed him
to come back to Pittsburgh and to call the terminal later
that day on his way back . Packer followed these instruc-
tions and came back empty to Warrendale . Packer then
filed his grievance.
It seemed to Emeryville that the possible ramifications
of this grievance were greater than the amount of money
due Packer if he were to win the grievance . Thus, as ad-
mitted by witness Bateman ,3 Phil and John Rezzetano
told him "that they had a grievance with him that was
important to their operation." The grievance had the
possibility of establishing a precedent whereby in certain
instances drivers could refuse to accept 'a trip lease or-
dered by Emeryville , could refuse orders to "dead-head"
home , or could accept a Helms load regardless of the
wishes of Emeryville.
So threatening to its U.S. Steel business did this griev-
ance appear to Emeryville that upon returning from the
grievance hearing , Phil Rezzetano yelled at Packer "I
have just come from that hearing and if I lose that griev-
ance , you're through . . . . [I]f I have to lay off half this
fleet or sell 50 trucks to get to you, I will get to you.
You are done . I'm sorry I ever hired you. You're noth-
0 Bateman is president of Team Transport . Team Transport was incor-
porated in August 1980, and began operations in February 1981. Emery-
ville leased trucks to Team, supplied drivers, and solicited business for
Team . Gradually , Emeryville increased the number of trucks that it
leased to Team and decreased those leased to Helms. By September 1981,
when it canceled with Helms altogether, there were 35 trucks leased to
Team and just over 60 leased to Helms.
Team had been formed by Phil and John Rezzetano and by Phil Bate-
man. Attorney Sam DeLisi testified through deposition that Phil ' Rezze-
tano met with him to arrange for the foundation of Team and to process
the ICC application , an arrangement which Phil Rezzetano incredibly
denied . Bateman is the owner of Team's 30 ,000 shares of stock . The cap-
ital for Bateman's purchase of that stock was furnished by Phil and John
Rezzetano , who held the stock as security for the loan to Bateman, and
who had the option to purchase 31,000 additional Team shares. The Rez-
zetanos could veto the issuance of more Team stock , and had the right to
provide consulting services to Team . Two of the Rezzetanos' children
are on Team's board of directors.
Bateman was a sincere and very credible witness. He was refreshingly
straightforward in his testimony . He testified that he and the Rezzetanos
had decided that Team would be a nonunion operation because it was
easier to operate without a union and because of the high costs of the
National Master Freight Agreement.
None of the information about Team came freely from the Rezzetanos,
which does not enhance their credibility.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing but trouble , and you 're behind every bit of trouble
we have at this terminal ." Driver Townsend witnessed
this, and recalled that Phil Rezzetano then stated that he
was not going to let anyone tell him how to operate or
run his business or his trucks.
This presaged for Packer what his fate would come to
be, for when it came time to collect on the grievance:
[Phil] said, if you take the check for this grievance
you are through . . . . You are not working here.
Clean out your truck . We [sic] said , are you firing
me? He said , no, I am laying you off. We [sic] said,
you can 't lay me off. There are 30 people below
me, and he said , I will lay off every one of them to
get to you . I am going to show you what principals
[sic] are . I will not lose control of my trucks. . . . I
can't have any driver telling me what to do with
those trucks , and you can take the check . You're
done . Clean it out. . . . I won 't lose control of my
trucks, and I don 't care what I have to do.
After giving Packer his check , Phil Rezzetano called in
his secretary and directed her to call every driver below
Packer on the seniority list and tell them that they were
laid off. John Rezzetano told Packer that he was one of
the top drivers that they had, "but we are not going to
lose control of the trucks ." As the other drivers were in
the process of being told that the trucks they were driv-
ing were no longer leased to Helms, several were told by
Rezzetano that Packer's "deadhead" grievance was the
cause.
An incident that occurred between the time of the
grievance hearing and Packer 's layoff shows that Packer
was not the only driver threatened for appearing to jeop-
ardize the Rezzetanos ' control of their trucks . Driver
David Brown, aware that Helms had issued instructions
that drivers were not permitted to trip lease to a newly
formed Rezzetano company called Team Transport,
questioned whether he could do so after being instructed
by Emeryville to take just such a trip lease from Team.
When word of Brown's inquiry reached Phil Rezzetano,
he called Brown in to tell him that Brown was not to
concern himself with whose loads he was told to drive,
"that they were his trucks and he would load them the
way he wanted them loaded and nobody would tell him
how to operate his vehicles and that he would do what
he wanted when he wanted and he would get rid of any-
body that stood in his way."
What are we to conclude from the Rezzetanos' fixa-
tion on control of their trucks? I conclude that whatever
rights of control that were vested in Helms over the
drivers who drove for it and Emeryville , and there is no
denying that those rights were substantial by virtue of
Helms' collective -bargaining agreement obligations and
rights, Emeryville in fact exercised actual daily control
over working conditions that affected where the drivers
would go, whether they could take certain loads (upon
which their remuneration depended ), and, above all,
whether they would be working or laid off. The latter
was exercised through Emeryville 's power to cancel
their trucks' leases, a power that it proved was not in the
least theoretical.
There were other indicia of control over working con-
ditions as well. Emeryville issued written driver work
rules that provided that "failure to [call in daily for
Emeryville 's trip permission] will result in immediate dis-
charge . Failure to follow various other rules pertaining
to property care, record keeping, and maintenance
would after the second violation "lead to termination,"
as would violation of a variety of other rules and instruc-
tions . Permission for using vacation or sick leave was to
come from Emeryville , which also supervised all of the
paperwork-logs, forms, expense sheets, and grievance
processing-that attended the drivers as they would
check in and out.
Driver Brown had been right to question some of the
Emeryville directives that ran counter to Helms' general
or specific policies, instructions, or practice , for in fact
there was some question about whether Emeryville's
practice of diverting its drivers from Helms ' loads was
proper practice under the agency agreement between
Helms and Emeryville . But Helms allowed these appar-
ent breaches, perhaps because it , too, was deviating from
its agreement with Emeryville , as we shall later see. The
point here is that Helms was an absent employer. Pack-
er's testimony makes the point well:
Q. Was this a dispute that arose on one or more
than one occasion concerning who the drivers were
employed by?
A. That was a constant dispute, sir.
Q. And could you describe the dispute for us?
A. It was ' just the Rezzetanos ' contention that
people work for Emeryville, that they didn't work
for Helm's . And I tried to tell people that, without
much success, that they worked for Helm's.
Q. Why did you do that?
A. Because I thought that Helm's was a signator
to the contract and that's who we had to basically
file grievances with , even though you were getting
paid by the Rezzetanos on the grievances some-
times, and that Emeryville didn 't have-they didn't
have a name on the contract . Even though they
were an employer of sorts, they didn 't have a name
on the contract.
Q. And what was Phil and John Rezzetano's po-
sition that you are aware of? What did they say?
A. A very constant position that we didn't work
for Helm 's, that we worked for Emeryville Truck-
ing, that Emeryville would tell us what to do,
where to go , how to go there, how to run the
truck, whether to load the truck , and that was our
loyalty . And we had no loyalty whatsoever to
Helm's, and we should pay no attention to anything
that Helm's said.
Q. Could you describe, as a driver , what con-
tacts-work related contacts you would have with
management of Emeryville and what work related
contacts you would have with management or su-
pervisors of Helm's?
A. I had daily contact . Sometimes , many times
during the day, contact with Emeryville employees,
certainly out of Warrendale and their employees out
of Gary terminal, also.
EMERYVILLE TRUCKING
Q. You are saying Emeryville employees who-
A. Emeryville dispatchers . That was my constant
contact . That was my supervision . That's who told
me what to do. I virtually had no contact with
Helm's with the exception of whether I had to file a
grievance for detention pay or something like that.
I would then file it , and they might be at a griev-
ance hearing . That was it.
Q. Could you give us some examples of the type
of directions you had received from Phil or John
Rezzetano and also the dispatchers?
A. Received directions on everything from
orders about changing my own tires to being re-
sponsible for maintenance on the truck , not that I
should do it all-not that I should do most of it, but
to make sure it got maintained to checking my air
pressure, to when I would deliver in some places, as
to what loads I would put on , as to where I would
run, as to whether or not I would be disciplined if I
failed to obey their rules . I mean all of the things
that normally happened , plus some . They like to
post a lot of rules.
Emeryville exercised the authority to assign , direct and
supervise the work of Helm's drivers . Thus, for all prac-
tical purposes the drivers who were nominally employed
by Helms reported to and drove for Emeryville , cf. C.R.
Adams Trucking, 262 NLRB 563 (1982), which could and
did "meaningfully affect" significant matters relating to
their employment, Laerco, supra.
II. THE CANCELLATION OF THE TRUCK LEASES
AFFECTING PACKER AND THE 30 DRIVERS JUNIOR TO
HIM
On 14 September 1981 driver Mel Packer went with
union representative Hammel to Emeryville 's office to
pick up the check that the grievance panel had awarded
him after Packer was forced by Emeryville to turn down
two loads and to deadhead home . As Phil Rezzetano ad-
mitted in his testimony , he "blew up" at Packer, yelling
"I'll give you the check , but you're out of a job because
I'm cancelling my equipment , and I'm cancelling your
truck." "I just went nuts, I guess ." When told by
Hammel that Packer was senior to many drivers, he or-
dered that the truck leases with Helms of every truck
whose driver was junior to Packer be canceled. Two
weeks later Helms acknowledged the cancellations and
laid off the drivers.4
Emeryville does not dispute this , and without more
there would clearly be a violation of Section 8(a)(3) of
the Act for causing layoffs in retaliation for the filing of
a grievance under a collective -bargaining agreement.
Royal Development Co., 257 NLRB 1168, enfd . in perti-
nent part 703 F.2d 363 (9th Cir . 1983). Thus, in Boston
Mutual Life Insurance Co., 259 NLRB 1270, 1279 (1982),
the Board stated:
It is well established that grievance filing is within
the umbrella of the Act's protection. The underly-
4 I find immaterial the one difference between Packer' s and Rezze-
tano's versions of this episode, i.e., whether Phil used the term "layoff."
1117
ing rationale of this principle is designed to promote
the viability of collective bargaining . It assures em-
ployees of maximum benefits of their collective bar-
gaining agreement . E.g. Crown Wrecking Co., Inc.,
222 NLRB 958, 962-963 (1976). Indeed , the right to
file grievances , and have them adjusted , is explicitly
granted in Section 9 (a) of the Act.
And, of course, see NLRB v. City Disposal Systems, 465
U.S. 822 ( 1984), reaffirming that such activity is concert-
ed activity under Section 8 (a)(1) of the Act (in addition
to, here, being union activity under Section 8(a)(3)).
Thus far, then, the General Counsel has established a
prima facia case for finding both 8 (a)(3) and ( 1) viola-
tions , see Wright Line, 251 NLRB 1083 ( 1980), approved
in NLRB v. Transportation Management Corp., 462 U.S.
393 (1983).
But Emeryville, while not denying the deed , denies
that it caused the layoffs , for three reasons : (1) that it
was not the drivers' employer , (2) that the truck leases
would have been canceled for business reasons regardless
of the Packer grievance , and (3) that there were in fact
no layoffs until Helms acted independently to lay off the
drivers . The first argument having been disposed of
above, we turn to the latter two.
A. Emeryville's Business Justification
Emeryville argues that , in any event, the truck leases
with Helms would have been canceled because of the de-
terioration in its relationship with Helms that occurred
during the summer of 1981. That deterioration began just
before 1981 when Helms brought in a new general man-
ager, Haggard, who set the tone for the future by an-
nouncing that the Helms-Emeryville agency agreement
"stinks." Shortly after that, Haggard advised Emeryville
by letter that he was closing Emeryville's Gary, Indiana
station . This was for the purpose of Helms opening an-
other agency station at Gary.
Subsequently , Haggard apologized and rescinded that
letter . Nevertheless , Emeryville learned that Helms had
indeed opened another Gary agency , the Drake agency,
which solicited freight for Helms in Emeryville 's terri-
tory, even in competition for the same important steel-
shipping customer . Moreover, Haggard also began the
practice of unilaterally withholding 3 percent of Emery-
ville's lease rentals for no other reason than "I'm doin' it
because I want to do it."
At a Helms -Emeryville meeting on 30 July 1981, it
seemed to Emeryville that Haggard was using the 3-per-
cent withholding as a hostage to secure Emeryville's ap-
proval of the competitive Drake agency . After extended
discussions Phil and John Rezzetano agreed to permit
the Drake agency to operate as a trip lease station with-
out any solicitation of business from any of Emeryville's
customers and with payment to Emeryville of a 1-per-
cent override on Drake's business. Haggard promised to
prepare a written addendum to the agency agreement re-
flecting the understanding reached at the meeting with
respect to the Drake agency.
Several weeks after the meeting, Emeryville had not
received the written addendum. Repeated telephone calls
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Phil Rezzetano to Haggard went unanswered and,
in Rezzetano's words, "the aggravation was just becom-
ing unbearable for me." In early August 1981, the Rezze-
tanos learned that Helms had notified Bethlehem Steel in
Gary, Indiana, a major Emeryville customer, that future
dealings should be through the Drake Agency, which
was identified in the letter as "our agent in Hammond,
Indiana ." The letter, which was dated 13 August 1981,
was signed by Bill Engle, the assistant general manager
of the Astro Division of Helms Express. A copy of the
letter was sent to Roy Haggard. This letter was in direct
conflict with the assurances that the Rezzetanos received
from Haggard during the 30 July 1981 meeting.
On 9 September 1981, 5 days before Phil Rezzetano
"blew up" at Mel Packer, Helms' Brumfield went to
Emeryville with an addendum to the agency agreement,
which the Rezzetanos refused to sign because it did not
reflect the 30 July agreement and because of the inter-
vening events. Brumfield promised to straighten things
out with Haggard.
On 11 September Emeryville received a letter from
Haggard that did not contain the 1-percent override and
the no-competitive-solicitation conditions that Emery-
ville had extracted at the 30 July meeting as its price for
agreeing to the Drake agency.
Both Rezzetanos testified that they met at Phil's home
on Sunday, 13 September, to discuss their Haggard prob-
lems, resolved to cancel one-half of their leases with
Helms "to get someone 's attention," and were in the
very process of deciding which ones on Monday morn-
ing (i.e., trying to decide which of its drivers would not
mind being transferred to Team Transport, the nonunion
company that had been formed earlier in 1981 by the
Rezzetanos and Bateman), when Packer walked in with
Hammel to be paid on his grievance. Respondent's
theory is found on brief at 17:
On the day before Packer and Hammel walked
into Emeryville's offices demanding payment of the
Packer grievance award, Phil and John Rezzetano
had already decided to cancel Emeryville 's relation-
ship with Helms. They decided to do it in two
stages, by cancelling approximately one-half of the
truck leases on the following morning and, if this
"drastic" action did not cause Helms to promptly
resolve its differences with Emeryville, then to
cancel the remaining leases and the agency agree-
ment (Tr. 412-13, 432, 507-10). Thus, if Packer and
Hammel had not walked into Emeryville's offices
on the morning of September 14, 1981, approxi-
mately the same number of truck leases would have
been cancelled, although probably not the identical
ones (Tr. 417, 431-32).
This is all too pat, and I do not credit it. I particularly
do not credit it because the testimony of Phil, who was
the more glib, was clouded in a verbal smokescreen of
evasion and was self-serving . Eliciting testimony from
John was like the figurative pulling of teeth. Contradic-
tions abound, particularly on exactly when a decision
was made to cancel the agency agreement and on what
role they had in helping Bateman start up Team. So im-
pressed am I with their lack of candor that I have put no
faith in their account of their private meeting on 13 Sep-
tember. Thus, although it is true that Emeryville was
being provoked by Helms, it is not true that the truck
leases were canceled on 14 September for that reason.
The provocation that caused the cancellations came from
Packer, who was perceived in Phil Rezzetano's eyes as a
troublemaker. Phil Rezzetano had let that particular cat
out of the bag when, after the 21 July grievance hearing
he threatened Packer that "I will get to you. . . . You're
nothing but trouble, and you're behind every bit of trou-
ble we have at this terminal ." The "trouble" was because
Packer had often, and vigorously, encouraged and aided
other employees to file grievances. After one such griev-
ance involving driver Ostroff in July 1980, Phil Rezze-
tano told Packer that he should not have helped Ostroff,
and in a rage threatened Packer "if I have to pay any-
thing on this grievance, I am going to get you." If one
has a sense of deja vu regarding this episode it is because
we know that 12 months later Rezzetano yelled that at
Packer again, this time about Packer's own grievance. 5
All this pent-up resentment at Packer's "troublemak-
ing" came to the fore on 14 September 1981 when Phil
finally made good on his threats to get rid of Packer. It
did not seem to matter that to do so meant getting out of
the way of the drivers who stood in the way on the se-
niority list by cancelling the leases to Helms of their
trucks as well as Packer 's. After Rezzetano laid off
Packer, Rezzetano told the other laid-off drivers that
their truck leases had been canceled "to get to Mel
Packer" and that Rezzetano could not have people filing
for "deadhead money" on him. Driver Vuchinich was
told to apply at Team Transport or take the layoff with
Emeryville. In fact, all of the laid-off drivers, other than
Packer, were told or heard that, and all but five elected
to apply at Team . 6 In these circumstances it matters not
at all whether Emeryville had it in mind to cancel some
leases with Helms to focus attention on its problems.
What does matter under Section 8 (a)(3) of the Act is that
Emeryville canceled the lease on Packer's truck and 30
others in order to rid itself of a union activist. By so
doing, Emeryville discriminatorily caused the layoff of
31 drivers (named below).'
B. Did Helms or Emeryville lay off the Drivers?
Emeryville argues that it was Helms that laid off the
drivers, not Emeryville. In fact, on 29 September Helms
sent two letters , one to Emeryville that "accepted the
a Earlier in 1981 Phil Rezzetano , angry that Packer had helped driver
Little file a grievance, threatened Packer , who was out on medical dis-
ability, that "I hope you don't think you are coming back to work here
because there is probably not going to be a truck when you come back."
a Helms, too, told the drivers that they were on layoff status after it
accepted the lease cancellations, since there was no further work for
these drivers at the Warrendale terminal.
I Because the record contains , at best, only speculation whether
Emeryville would have parted from Helms if Packer 's grievance had not
catalyzed events, the backpay that is due Packer and the drivers named
below shall be calculated from 14 September 1981 to 31 December 1982
when Emeryville's agreement with Helms expired by its terms . The back-
pay is to make the drivers whole for losing the pay rate and benefits pro-
vided in the collective -bargaining agreement between Helms and the
Union.
EMERYVILLE TRUCKING
voluntary cancellation of the permanent lease agreements
with the Astro division on [31] units . . . effective this
date," and another letter to 32 drivers8 stating that "due
to the fact that Emeryville Trucking Inc., the owner of
the equipment you drive for the Astro Division , has can-
celled the permanent lease agreement on that equipment,
we are forced to place you on a lay-off status until fur-
ther notice, effective this date ." As far as Emeryville is
concerned , Helms did not have to lay off the drivers be-
cause Helms had another source of trucks at the Warren-
dale terminal , those of owner Robert Short , another
Helms lessor . But Short had only 14 trucks then, and
Emeryville had canceled the leases of 31 trucks.
Emeryville offered all the drivers but Packer employ-
ment at Team ,9 and all but four went there . As far as
Emeryville is concerned , Short's trucks were available to
Helms for Packer and the other four, and the reason that
Helms did not use them was Helms' own antiunion
animus . Although there are juicy tidbits in the record
that suggest Helm's antiunion animus (such as its initial
refusal to employ Packer), the conclusion proffered by
Emeryville is speculation . What we know is that Short
already had four trucks idle at a time and in a place
where unemployment was high . Although Short opined
on direct examination by Respondent that Packer and
the other four could have made money if they had been
transferred to his trucks , in fact business at Warrendale
was slow and was getting slower . By the end of 1982
Helms had canceled its leases with Short and had closed
its Astro Division . But, apart from this general decline,
the impact of the Emeryville lease cancelations and ter-
mination of the agency agreement was specific and im-
mediate, as Helm's operations manager, Colinear , testi-
fied:
Q. (on redirect examination by the General
Counsel) What is the affect [sic] of the cancellation
of the leases and the agency agreement, on the
availability of work , at Warrendale?
THE WITNESS : Once Emeryville cancelled, we
had no agent . There were still a few domiciled op-
erators, but in essence, we had no one soliciting
business for us , at Warrendale.
Q. Okay, so, what did that mean , as far as the
work that was available for employees?
A. There wasn't any.
8 By stipulation, the parties agreed that the following 31 drivers re-
ceived layoff notices from Helms (but see G.C. Exh. 10, which lists 32
drivers): Dennis Baker , Floyd Baldwin, Lonnie Bemis , Terry Begley,
Charles Bronson , David Brown, Steve Caltagirone , Tom Chapot , Donald
Disko, Anthony Elkins , Charles Gerson , Gary Hussey , Tom Joyce,
Lewis Linhart , Guy McCool , Donald Miller, David Miller, Harry
Mulder , William Oliver , John O 'Sche , Melvin Packer , Harold Parks,
Wallie Rohrer , Mark Ross, David Schirm , Shane Schandeimeier , Robert
Stahura, John Stromberg, James Tomcho , Gary Vuchinich , and Tom
Writt.
9 This singling out of Packer was discriminatorily motivated to get rid
of Packer altogether , completing the making good on the threats to get
Packer for filing his grievance and having helped other drivers to file
grievances . This constitutes an independent violation of Section 8 (a)(3).
As requested by the General Counsel , who seeks the reinstatement only
of Packer, Emeryville will be required to offer employment to Packer at
Emeryville/Team, and backpay will run from the date of layoff to the
date of offer of employment.
1119
Q. And, I believe, you testified, under cross-ex-
amination about equipment , roughly, around five
pieces of equipment , of Short's, that was sitting idle,
even before the cancellation . Why was it sitting
idle, at that point? To your knowledge?
A. Number one, he had no drivers . Number two,
he wasn 't makin ' any money on the units that he
was runnin '. If you would-if we had his figures,
I'm sure it would indicate that Mr. Short wasn't set-
ting the world on fire, with the equipment he was
running, let alone putting the other five, on the
road.
In addition to expressing Helms' lack of confidence in
Short, Colinear testified that Helms had another Pitts-
burgh area agent, in Adamsburg , and that no other
agents in western Pennsylvania were added.10
In short, for Helms (1) there was slack at the Warren-
dale terminal after Emeryville , which was Helm's Astro
Division 's largest revenue producer , left Helms without
an agent there , and (2) Helms was not sufficiently confi-
dent in Short to have him replace Emeryville . Therefore,
I find no basis in Helm's conduct for exonerating Emery-
ville from the consequences of causing the layoff of
Packer and 30 other drivers.
III. THE SECOND ROUND OF LEASE CANCELLATIONS
On 24 September 1981 Emeryville sent Helms a letter
that stated , "We will consider our arrangements termi-
nated" as of 30 September 1981. This meant that Emery-
ville was terminating its remaining truck leases and the
agency agreement . Helms acknowledged this by its letter
of 28 October 1981, listing the 31 truck leases to be can-
celed , and sent a letter to the drivers of those trucks that
they were on layoff status because of the cancellations.
The General Counsel alleges that these layoffs, like those
on 14 September , were the result of Emeryville's discri-
minatorily motivated lease cancellations . I find that they
were not.
To understand what was going on, we must retrace
our steps back to 14 September. Throughout 1981 and up
to 14 September, two persons had been trouble to Phil
Rezzetano-Roy Haggard and Mel Packer. Haggard had
set Helms and Emeryville on a collision course, and
Packer's union activities had threatened Rezzetano's per-
ception of who was going to control his trucks. These
separate problems intertwined on 14 September when
Packer came to collect on his grievance . Phil Rezzetano
made good on what he had threatened Packer and had
told Bateman and Colinear. He "got" Packer, and in an
admitted fury did so by cancelling every truck lease of
every driver that was below Packer on the seniority list.
That brings us to the remaining cancellations. When
the dust settled and Phil calmed down , he and John Rez-
zetano discovered that in Phil' s rage exactly one-half of
10 In view of the fact that the Helms-Emeryville relationship deterio-
rated to the point of a civil suit, one must be careful with Colinear 's testi-
mony. I found him to be forthcoming in areas that did not touch on
Helms initial rejection of Packer's driving application , a situation that ap-
peared to embarrass him. Regarding the remaining matters of his testimo-
ny, I found him to be a knowledgeable and credible witness.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the truck leases had been cancelled . They realized that
they had done something that would "get someone's at-
tention" at Helms and awaited a conciliatory response.
None came . During the next 2 weeks Helms made no
effort to contact Emeryville to patch up their differ-
ences . After consulting counsel , Phil Rezzetano called
Colinear at Helms and said , "No one seems to care, I'm
cancelling the remaining leases ." Colinear said , "Before
you do that let me get ahold of Brumfield and Haggard,
and have them call you ." Phil said , "Fine, have them
call me ." However, no one ever called back , and Phil
then sent the final termination letter cancelling the re-
maining leases and the agency agreement.
The General Counsel argues that Emeryville terminat-
ed with Helms to move more quickly into a nonunion
operation with Team and, incidentally , to be away from
the union contract Helms had under which Packer might
grieve his layoff and win.
But I find that once Emeryville discriminatorily can-
celed the first round of leases, the second round of leases
and the agency agreement were canceled as an independ-
ent business decision . Doubtless Emeryville was now
free of Packer and the Union , and this was in the Rezze-
tanos' minds when they canceled on 24 September by
phone to Colinear and by letter to Haggard . But Colin-
ear's testimony does provide corroboration that on the
second round of lease cancellation , Emeryville threw in
the towel on Helms because Helms was paying no atten-
tion . I see it as a business decision that is separate from
the first round of cancellations and that "would have
taken place even in the absence of the protected con-
duct." Wright Line, supra, 251 NLRB at 1089. Other
than surmise that the timing of the second round of can-
cellations 10 days later was to thwart a Packer griev-
ance, or had other union animus, there is no record sup-
port for finding that the second round was not done out
of frustration with Helms , which had made no effort to
reconcile the differences on which Emeryville had been
seeking redress since July. Once the Packer grievance
triggered the first round of cancellations , there is no
knowing when the second round would have come, if at
all. Accordingly , I dismiss the complaint on this issue.
CONCLUSIONS OF LAW
1. Emeryville Trucking, Inc. is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act."'
2. By causing the layoff of the above-listed drivers that
it jointly employed with Helms Express in retaliation for
having to pay a.grievance award that was made pursuant
to a collective -bargaining agreement between the drivers'
union and Helms Express , Emeryville violated Section
8(a)(3) and (1) of the Act.
3. By causing the layoff of Melvin Packer in retaliation
for his having aided other drivers in the filing of griev-
ances under the collective -bargaining agreement between
11 During 1981 Emeryville derived gross revenue in excess of $50,000
from the transportation of freight and commodities in interstate com-
merce.
their union and Helms Express , Emeryville violated Sec-
tion 8(a)(3) and (1) of the Act. -
4. By failing to offer Melvin Packer employment at
Team Trucking , Inc. In order to be rid of a union activ-
ist, Emeryville violated ' Section 8 (a)(3) and ( 1) of the
Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following t 2
ORDER
The Respondent, Emeryville Trucking, Inc., Pitts-
burgh, Pennsylvania, its officers , agents, successors, and
assigns, shall
1. Cease and desist from
(a) Laying off or causing the layoff of drivers because
of their union activities.
(b) Laying off or causing the layoff of drivers because
they have filed grievances or aided other employees in
the filing of grievances.
(c) Failing to offer employment or the opportunity to
transfer employment to employees because of their union
activities or because they have filed grievances or aided
employees in the filing of grievances.
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer employee Melvin Packer employment at
Emeryville Trucking or Team Trucking, and make him
whole for any loss of pay and benefits suffered by reason
of Emeryville having caused the layoff of Packer-13
(b) Make whole the drivers listed above for any loss of
pay and benefits that they suffered by reason of Emery-
ville's having caused their layoff.
(c) Post at its Warrendale , Pennsylvania terminal
copies of the attached notice marked "Appendix." 14
Copies of the notice , on forms provided by the Regional
Director for Region 6, after being signed by the Re-
spondent 's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent 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 Re-
spondent has taken to comply.
12 If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall , as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
19 See F. W. Woolworth Co., 90 NLRB 289 (1950), Isis Plumbing Co.,
138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977).
11 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board." .
6