Ford Brothers, Inc.

National Labor Relations Board - Board Decisions

Aug 4, 1982

263 N.L.R.B. 92 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ford Brothers, Inc. and Teamsters Local Union No.
159, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America and Teamsters Local
Union No. 505, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America. Case 9-CA-
15848
August 4, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On March 30, 1982, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent and the Gener-
al Counsel filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order,' as
modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Ford Brothers, Inc., Coal Grove, Ohio, and
Kenova, West Virginia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Substitute the following for paragraph 2(d):
"(d) Reimburse all employees for all initiation
fees and dues paid by them to Teamsters Local
Union No. 505, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, through dues checkoff
since on or about August 1, 1980, with interest on
any such moneys due the employees."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
s We shall modify the Administrative Law Judge's recommended
Order to provide for interest on all initiation fees and dues reimbursable
to the employees.
263 NLRB No. 11
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Teamsters Local Union No. 159, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, and the
Central Conference of Teamsters, as the exclu-
sive collective-bargaining representative of all
employees in the following appropriate unit:
The employees of the Employer who work
at the Employer's facility at Coal Grove,
Ohio, and/or at Coal Grove, Ohio, and who
were transferred to the Employer's Kenova,
West Virginia, terminal and who were treat-
ed by the parties as covered by the collec-
tive-bargaining agreement, Central States
Area Tank Truck Agreement, and the Ohio
Rider to Central States Area Tank Truck
Agreement, as specified in such agreements
in effect in 1980, and as stipulated with re-
spect to truckdriver and mechanic employ-
ees as being represented by Teamsters Local
Union No. 159, and other Kenova terminal
employees performing similar work, and ex-
cluding all office clerical employees, and all
professional employees, guards and supervi-
sors as defined in the Act constitute an ap-
propriate bargaining unit. Such employees
are also referred to in one of the above re-
ferred to agreements as follows:
Section 1.2-Employees Covered
(a) The employees covered by this Agree-
ment shall include any and all the employees
of the Employer employed directly by
and/or under the supervision and control of
the Employer within the jurisdiction of the
Union and who are represented by the
Local Union or during the life of this
Agreement may come to be represented by
the Local Union.
WE WILL NOT refuse to apply the terms and
conditions of an existing collective-bargaining
agreement with Teamsters Local Union No.
159 and the Central Conference of Teamsters
covering employees in an appropriate collec-
tive-bargaining unit to employees in said unit
when performing unit work.
WE WILL NOT discriminate against employ-
ees to rid ourselves of bargaining obligations
under our contract with Teamsters Local
92
FORD BROTHERS, INC.
Union No. 159 and the Central Conference of
Teamsters as the exclusive collective-bargain-
ing representative of the employees in the ap-
propriate unit set out above, nor will we oth-
erwise discriminate against employees because
of membership in any labor organization.
WE WILL NOT transfer unit employees or
unit work or relocate appropriate unit oper-
ations from one facility to another without the
consent of or without giving notice to and bar-
gaining with the exclusive collective-bargain-
ing representative within the meaning of Sec-
tion 8(d) of the Act.
WE WILL NOT grant recognition to, execute
a collective-bargaining agreement with, or oth-
erwise maintain, enforce, or give effect to rec-
ognition or bargaining agreements with, or
otherwise aid and assist in any other manner
Teamsters Local Union No. 505, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of
America, as the exclusive collective-bargaining
representative of any of the employees in the
appropriate unit described above.
WE WILL NOT threaten employees with dis-
charge or other reprisals to force them to sign
authorization cards for a union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights guaranteed in Section 7 of
the Act, except to the extent that such rights
may be affected by lawful agreements in
accord with Section 8(a)(3) of the Act.
WE WILL make the employees listed below
whole for any loss of pay or other benefits
they may have suffered by reason of the dis-
crimination against them, with interest:
Leslie Burd
Glenn Carr
Ellis Davis
Tex G. Devore
Homer Dickerson
Boyce Dotson
Harold Grim
Carl Hamilton
Don Holbrook
Glenn Hopper
Don Howard
Fred Mann
James McGinnis
George Menshouse
Harold Montavon
Chester Napier
Elmer Napier
Lester Napier
Donald Rambo
William Riffe
Dean R. Robinson
Robert Ross
Kenny Lee Skeens
Kenny Ray Skeens
Ivan Smith
Robert L. Smith
Harry G. Sparks
Charles Spears
William Stover
John Thomas
Hancel Truesdell
Tommy Ward
Merrill Wells
Clayton Wheeler
WE WILL reimburse all employees for all ini-
tiation fees and dues paid by them to Team-
sters Local Union No. 505, affiliated with the
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of
America, through dues checkoff since on or
about August 1, 1980, with interest on any
such moneys due the employees.
WE WILL rescind any existing collective-bar-
gaining agreement with and withdraw and
withhold recognition from Teamsters Local
Union No. 505, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, as the exclu-
sive bargaining representative of any of the
employees in the appropriate unit described
above, unless and until it has been certified by
the National Labor Relations Board as such
representative.
WE WILL apply the terms and conditions of
the collective-bargaining agreement with
Local Union No. 159 and the Central Confer-
ence of Teamsters, as it now exists or may be
modified within the concept of collective bar-
gaining, to all employees in the appropriate
unit set forth above, as long as such Union is
the exclusive collective-bargaining representa-
tive of such employees.
WE WILL recognize and, upon request, bar-
gain in good faith with Teamsters Local Union
No. 159, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, and the Cen-
tral Conference of Teamsters, as the exclusive
collective-bargaining representative of the em-
ployees in the above-described appropriate
unit, with respect to the continued location or
relocation of the unit facilities at Coal Grove,
Ohio, and Kenova, West Virginia, or any ad-
justments thereto, and with respect to all other
matters relating to wages, rates of pay, hours,
and other terms and conditions of employ-
ment.
WE WILL submit the work at our Kenova,
West Virginia, terminal for rebidding by our
employees, with all employees having the
same rights for such bidding as they had on
September 27, 1980, and with the assignment
of such employees to the Kenova, West Vir-
ginia, terminal to be in accordance with our
collective-bargaining agreement with 159 and
the Central Conference of Teamsters; pro-
vided, however, that if agreement is made
with said Union resulting in a return of the
Kenova, West Virginia, work to Coal Grove,
Ohio, such rebidding by employees and reas-
93
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signment of employees shall be in accordance
with such agreement.
All our employees are free to become or remain,
or refrain from becoming or remaining, members of
any labor organization, except to the extent pro-
vided by Section 8(a)(3) of the Act.
FORD BROTHERS, INC.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice
on September 30, 1981, and October 1, 2, and 29, 1981,
at Catlettsburg and Ashland, Kentucky.
The charge in Case 9-CA-15848 was filed on Septem-
ber 19, 1980. The second amended complaint in Case 9-
CA-15848 was issued on September 25, 1981. The issues
concern whether Respondent aided and assisted Local
505 of the Teamsters in securing authorizations from em-
ployees for representation, illegally recognized Local 505
as a bargaining representative, bypassed Local No. 159 in
bargaining directly with employees, transferred oper-
ations, equipment, and employees for discriminatory rea-
sons and without bargaining with Local No. 159 as to
such transfers, and whether Respondent by certain of the
above conduct violated Section 8(a)(1), (2), (3), and (5)
of the Act.
All parties were afforded full opportunity to partici-
pate in the proceeding. Briefs have been filed by Re-
spondent and the General Counsel and have been consid-
ered.
Upon the entire record in the case and from my obser-
vation of witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The facts herein are based on the pleadings and admis-
sions therein and the record as a whole.
At all times material herein, Ford Brothers, Inc., Re-
spondent herein, an Ohio corporation with an office and
place of business at Coal Grove, Ohio, herein called Re-
spondent's facility, has been engaged in interstate trans-
portation of liquid products in bulk by tank truck.
During a 12-month representative period, Respondent,
in the course and conduct of its business operations de-
scribed above, performed services valued in excess of
$50,000 outside the State of Ohio.
As conceded by Respondent and based on the forego-
ing, it is concluded and found that Respondent is, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
1
Teamsters, Local Union No. 159,2 affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America is, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
Teamsters Local Union No. 505, 3 affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America is, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues
1. Supervisory status4
At all times material herein, the following named per-
sons occupied the positions set forth opposite their re-
spective names, and are now, and have been at all times
material herein, supervisors of Respondent within the
meaning of Section 2(11) of the Act and agents of Re-
spondent within the meaning of Section 2(13) of the Act:
J. Robert Ford-president
Richard Trettin-vice president
Sidney Gibson-terminal manager, Kenova, West
Virginia, terminal
Charley Hamlin-director of personnel and labor
relations, Coal Grove, Ohio, terminal
2. Agency status
At all times material herein, James R. Boyd occupied
the position of president of Local 505, and is now, and
has been at all times material herein, an agent of Local
505 within the meaning of Section 2(13) of the Act.
3. The appropriate bargaining unit 5
The employees of Respondent who work at Respond-
ent's facility at Coal Grove, Ohio, and/or at Coal Grove,
Ohio, and who were transferred to Respondent's
Kenova, West Virginia, terminal, and who were treated
by the parties as covered by the collective-bargaining
agreement, Central States Area Tank Truck Agreement,
and the Ohio Rider to Central States Area Tank Truck
Agreement, as specified in such agreements in effect in
1980, and as stipulated with respect to truckdriver and
mechanic employees as being represented by Teamsters
Local 159, and other Kenova terminal employees per-
forming similar work, and excluding all office clerical
employees, and all professional employees, guards and
supervisors as defined in the Act constitute an appropri-
ate bargaining unit within the meaning of Section 9(b) of
I The facts are based on the pleadings and admissions therein.
' Sometimes simply referred to herein as Local 159.
' Sometimes simply referred to herein as Local 505.
· The facts are based on the pleadings and admissions therein.
s The facts are based on the exhibits, stipulations, and fair inferences
therefrom.
94
FORD BROTHERS, INC.
the Act. Such employees are also referred to in the
above referred to agreements as follows:
Section 1.2-Employees Covered
(a) The employees covered by this Agreement
shall include any and all the employees of the Em-
ployer employed directly by and/or under the su-
pervision and control of the Employer within the
jurisdiction of the Union and who are represented
by the Local Union or during the life of this Agree-
ment may come to be represented by the Local
Union.
I note that Respondent raises the question of a national
bargaining unit. I note also that the Central States Area
Tank Truck Agreement contains reference to a "Multi-
Employer Unit" as is revealed by the following excerpt
from such agreement:
The parties agree to become a part of the multi-
employer, multi-union bargaining unit established by
this Central States Area Tank Truck Agreement,
and to be bound by the interpretations and enforce-
ment of this Central States Area Tank Truck
Agreement and Supplements thereto.
The parties further agree to participate in joint
negotiations of any modification or renewal of this
Central States Area Tank Truck Agreement and
Supplements thereto and to remain a part of the
multi-employer, multi-union bargaining unit set
forth in such renewed Agreement and Supplements
thereto.
It is clear that the local appropriate bargaining unit is
also part of a multiemployer, multiunion unit. A review
of the Central States Area Tank Truck Agreement re-
veals delineation of matters of local and regional inter-
ests. Thus, the basic core bargaining unit of employees
involved in the issues in this case is the unit of Respond-
ent's employees represented by Local 159. The issues
concern only employees in such bargaining unit.
B. Representative Status
The parties entered into stipulations relating to the
representative status of Teamsters Local 159 as is re-
vealed by the following excerpts from the record:
Mr. Lang: Your Honor, as a result of a discussion
between Respondent's Counsel and myself, my un-
derstanding is that paragraph six has been denied by
Respondent, and Respondent would be welcome to
stipulate as follows: For a period of approximately
20 years, and all times material herein, the Charging
Party has been the designated collective bargaining
representative of Respondent's truck driver and me-
chanic employees at the Coal Grove, Ohio location
and during such time, the Charging Party has been
recognized as such representative, by the Respond-
ent. Such recognition has been embodied in the
successive collective bargaining agreement, the
most recent which is effective by its terms for the
period of November, 1979, to November 14, 1982.
Mr. Flamm: Your Honor, it's my understanding
that the Respondent further stipulates, with respect
to paragraph six B, which has been denied, that at
all times material herein, the Charging Party, by
virtue of Section 9A and has been, and is, a repre-
sentative of all the employees referred to in previ-
ous stipulation. For the purpose of the collective
bargaining with respect to the recent pay, wages,
and hours of employment, and other terms of the
conditions of employment.
Statements by Respondent's counsel seem to indicate
that the real dispute with the General Counsel's plead-
ings as to the alleged appropriate bargaining unit and as
to alleged representative status of the Union is whether
there were more than one representative of the employ-
ees in the appropriate bargaining unit. The parties' litiga-
tion of this issue indicated that these issues were not of
great moment.
I note that the stipulations concerning status conferred
by Section 9(a) of the Act would support a finding of ex-
clusive representative status by Teamsters Local 159 as
regards the employees in the appropriate bargaining unit.
The collective-bargaining agreement between the par-
ties6 reveals in effect that the exclusive collective-bar-
gaining representative of the employees in the appropri-
ate bargaining unit is the Union and that the Union is
composed of the Central Conference of Teamsters and
Local Union No. 159. Such contract sets out in specifics
who is to act for the "Union" in various situations. In
overall effect, it appears that Local 159 would handle
day-by-day and local affairs. Considering the correspond-
ence between the parties and their actions otherwise,
such single, integrated, exclusive collective-bargaining agent
with individuals or components thereof acting as specifi-
cally set forth in the contract is clearly revealed and so
found.
In the instant case, it would appear that specific find-
ings as to whether the exclusive collective-bargaining
representative is Local 159 or Local 159 and the Central
Conference of Teamsters are not necessary. The question
of whether Respondent has violated the Act regarding
its dealings with Local 159 and the Central Conference
of Teamsters has been fully litigated, and the ultimate
findings herein would be the same under findings that
Local 159 is the exclusive collective-bargaining repre-
sentative or that Local 159 and the Central Conference
of Teamsters constitute a single, integrated, exclusive
collective-bargaining representative. ?
6 The Central States Area Tank Truck Agreement-November 15,
1979-November 14, 1982.
? I note that contractual language refers to the fact that Local 159 and
the Central Conference of Teamsters are exclusive collective-bargaining
representatives. Such looseness in language is often observed in the de-
scription of two entries constituting in effect a single legal entity or a
joint representative.
95
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Deferral Issue
The parties presented excellent briefs with respect to
their arguments as to whether or not decision in the in-
stant matter should be deferred to allow the parties to
determine the issues involved under their contractual
grievance arbitration machinery. It is clear that such
contractual grievance arbitration machinery exists. Re-
spondent argues that, in accordance with Roy Robinson,
Inc. d/b/a Roy Robinson Chevrolet, 228 NLRB 828
(1977), this proceeding should be deferred to arbitration
since the issue involves a contention that Respondent's
action is justified under the collective-bargaining agree-
ment. The General Counsel argues that the principles set
forth in Los Angeles Marine Hardware Co., a Division of
Mission Marine Associates, Inc.; and California Marine
Hardware Co., a Division of Mission Marine Associates,
Inc., 235 NLRB 720 (1978), are controlling and that the
decision in the instant proceeding should not be deferred
to the contractual grievance arbitration machinery be-
cause Respondent's conduct involved a repudiation of an
existing collective-bargaining agreement and relationship.
It is not disputed that Respondent moved a large part of
its Coal Grove, Ohio, operation to Kenova, West Virgin-
ia; ceased applying its existing contract to the employees
tranferred to Kenova; ceased recognizing Local 159 and
the Central Conference of Teamsters as a single, integrat-
ed, exclusive collective-bargaining representative of such
employees as were moved to Kenova; recognized and
signed a collective-bargaining agreement with Local 505
of the Teamsters; and utilized a different wage structure
for employees. Had Respondent (1) simply moved its op-
erations and utilized the wage structure of the "Ken-
tucky" rider, and (2) continued to recognize Local 159
and the Central Conference of Teamsters, one might
construe that the overriding issue was one of whether
Respondent's actions were justified by the contract. In
my opinion, the issues go beyond a question of contrac-
tual justification. I am persuaded that the issues concern
questions of repudiation of the contract and repudiation
of the existing collective-bargaining representative. This
being so, under the principles approved in Los Angeles
Marine Hardware Co., supra, Respondent's motion that
the instant proceeding be deferred to arbitration is
denied. 8
D. Background
The critical events concerning the issues in this case
commenced in April 1980. Prior to April 1980, the fol-
lowing may be said to constitute the setting.
Ford Brothers was a corporation engaged in the trans-
portation of liquid and dry products in bulk by tank
truck. It maintained large or reasonably large terminals
at Coal Grove, Marietta, Columbus, and Cincinnati,
Ohio. Its employees at such terminals were represented
by the Teamsters Union or entities thereof. For over 20
years, Ford Brothers had had a bargaining relationship
s I note that the Respondent refers to the fact that there are close and
well-established relationships between the parties and that I made such
observation at the hearing of this matter when remarks were made to en-
courage the parties to pursue settlement of the instant proceeding. Such
pursuit was ultimately fruitless.
with entities of the International Teamsters Union. Such
relationship had resulted in contracts as have been re-
ferred to in the section of this Decision relating to the
"deferral" issue. There is no evidence that the bargaining
relationship between Ford and the Teamsters had been
other than what might be described as amicable. Em-
ployees at the above referred to locations belonged to
different locals of the Teamsters, and each of such locals
and the Central Conference of Teamsters constituted a
single, integrated, exclusive collective-bargaining repre-
sentative for the employees at each respective location.
At the Coal Grove, Ohio, terminal, Local 159 and Cen-
tral Conference of Teamsters constituted a single, inte-
grated, exclusive collective-bargaining representative for
the Coal Grove employees in the appropriate bargaining
unit at Coal Grove, Ohio. 9
All of the aforementioned terminals were covered by
the previously mentioned Central States Area Tank
Truck Agreement and the Ohio Rider to Central States
Area Tank Truck Agreement.
Ford Brothers also had a small terminal at Neal, West
Virginia. There were around three employees at the
Neal, West Virginia, terminal of the type that would
have been in the bargaining unit if employed at Coal
Grove, Ohio. The Neal, West Virginia, employees were
not represented by any union, and there were no collec-
tive-bargaining contracts covering such employees.
There is no evidence that Ford Brothers had any termi-
nals excepting the ones in Ohio and Neal, West Virginia.
There also is no evidence that any collective-bargaining
agreements concern Ford's employees other than the
ones previously discussed.
The facts are clear that prior to Respondent's decision
to transfer operations from Coal Grove, Ohio, to
Kenova, West Virginia, Respondent had been opposed to
the unionization of the Kenova, West Virginia, employ-
ees.
The record clearly establishes that Respondent was
concerned in early 1980 over the economic factors of its
Coal Grove operation. It is clear that Respondent be-
lieved it could improve its profits if it moved its Coal
Grove operation so that at least part of its base would be
closer to the Ashland Refinery, one of its larger custom-
ers. It is also clear that Respondent was desirous of a
more favorable wage structure or plan than was in effect
under its current collective-bargaining agreements.
The overall record reveals that Respondent's consider-
ation of its economic beliefs set out above did not result
in a firm decision as to any steps other than contacting
the Union for economic relief.' 0 Such contract was
made on or around April 22, 1980.
9 Local 159 and the Central Conference of Teamsters are referred to
herein as a single, integrated, exclusive collective-bargaining representa-
tive. There have been cases where two different entities have been re-
ferred to as a joint representative and such joint representative has been
certified as the exclusive collective-bargaining representative of certain
employees. The reference herein to a single, integrated, exclusive collec-
tive-bargaining representative is intended to connote the same meaning or
standards as has been used with respect to references to "Joint Repre-
sentative" as descriptive of an exclusive collective-bargaining representa-
tive.
iO Considering the proposed drivers' addendum of May 8, 1980, I am
persuaded that Respondent had decided to get economic relief and to
Continued
96
FORD BROTHERS, INC.
E. The Meeting With Business Agent Everett
It is undisputed that Respondent had meetings and dis-
cussions with Vic Everett, a business agent for Local
159. Everett was deceased at the time of the hearing in
this matter and great argument has been presented con-
cerning the credibility of witnesses who testified as to
statements by Everett. In essence, Respondent presented
testimony to the effect that Respondent spoke to Everett
of its problems and secured approval from Everett to ap-
proach its employees directly. The General Counsel pre-
sented a position paper prepared by Respondent's attor-
ney, which in effect was contradictory of the facts relat-
ed by Respondent's witnesses. Respondent's counsel did
not present evidence relating to the position paper but
made a statement on the record that the position paper
was prepared by him, was based on knowledge which
was "second hand" or "third hand," and that the facts
represented by him at that time did not fully and accu-
rately reflect the facts as they existed. Other evidence
appeared to indicate that at least some of the facts for
the position paper had been secured by a paralegal in Re-
spondent's attorney's office and had been secured by
usage of the telephone. In any event, Hamlin, director of
personnel and labor relations, had talked to such parale-
gal after charges had been filed in the instant case. The
facts also reveal that Hamlin had received a copy of Re-
spondent's position paper and that no steps had been
taken to correct any misinformation that had been set
forth in said position paper.
The General Counsel argues that weight should be
given to the "position paper" as an admission against Re-
spondent because prior advisement of misinformation had
not been furnished to the General Counsel.
Under Board law, testimony relating to statements by
a deceased person is admissible but subject to great and
careful scrutiny." This being so, Respondent's position
paper compounds the difficulties of assessment of the tes-
timony relating to statements by a deceased person. I
noted that Hamlin, as a witness, appeared to have a hear-
ing problem. Such would contribute to problems of se-
curing reliable and accurate information by telephonic
communication. I note, however, that Hamlin and the
other witnesses as to the conversation between Respond-
ent officials and Everett appeared to be honest and truth-
ful. This observation is made despite the fact that many
leading questions were utilized. Hamlin gave truthful an-
swers contrary to the suggestive leading questions. Most
important in determining the credibility of witnesses as
to the conversations with Everett is a letter dated May
27, 1980, to Everett with a copy to Robert Cassidy,
chairman, Ohio Conference of Teamsters. In my opinion,
this letter is consistent with the testimony of Respond-
ent's witnesses as regards discussions with Everett. There
continue its Coal Grove operations in total if such relief were forthcom-
ing. If Respondent had received such relief and then had moved its oper-
ations, it is obvious that great labor problems would ensue. Such adden-
dum referred to maintaining and/or expanding work opportunities for the
Coal Grove bargaining unit employees.
I" Goodwater Nursing Home Inc., 222 NLRB 149 (1976); Eastern
Market Beef Processing Corporation. Alfred and Scot Street Divisions, 259
NLRB 102 (1981).
is no evidence that Everett or Cassidy disputed the fac-
tual assertions set forth in such letter.
Considering the foregoing, I credit Respondent's wit-
nesses, Trettin, Hamlin, and Ford, as to their testimony
relating to a conversation with Everett on April 22,
1980. 1 find as fact that Respondent told Everett of its
economic problems and ideas of possibly moving the ter-
minal or the need for wage adjustments. I find as fact
that Everett indicated to Respondent that they were free
to discuss such problems and plans with the individual
employees.
F. Events of Late April and Early May 1980-Alleged
Threats and Direct Dealing With Employees
Following Respondent's discussions with Business
Agent Everett on April 22, 1980, Respondent had meet-
ings with its employees (in the bargaining unit). Such
meetings occurred during the period April 23 through
May 10, 1980. At such meetings, Respondent discussed
its economic problems and desire for relief. At least
around May 8, 1980, Respondent gave employees copies
of a proposed "Special Driver's Addendum to Central
States Area Tank Truck Agreement and Ohio Rider for
Ford Brothers, Inc." Said addendum had the date of
May 8, 1980.12 Said addendum set forth lower wage
rates than existed under the current collective-bargaining
agreement. Respondent official Trettin utilized certain
data previously prepared to reflect Respondent's eco-
nomic problems. Employees were requested to sign the
above referred to addendum. Some of the employees dis-
puted the validity of Rcspondent's economic data. Vice
President Trettin told Homer Dickerson and the employ-
ees with him that if the employees did not sign the ad-
dendum there would be no work at the Coal Grove ter-
minal.
Employee Rambo, who was with Dickerson, testified
to the effect that Trettin told Dickerson and the other
employees that the Company was in a financial bind, and
that if it did not get some relief there might not be a
company.
The facts are clear that Director of Personnel and
Labor Relations Hamlin participated in some of the
meetings described above. Such meetings clearly in-
volved direct dealing with employees concerning their
wages.
The overall facts reveal that Respondent's bargaining
unit employees rejected its proposed special addendum.
Contentions and Conclusions
i. The General Counsel alleges and Respondent denies
that:
During late April or early May 1980 . . . Respond-
ent, acting through Richard Trettin, at Respond-
ent's Coal Grove, Ohio facility, threatened an em-
ployee with loss of employment for all employees at
Respondent's Coal Grove, Ohio facility, if the em-
ployees did not agree to a reduction in rates of pay
12 Said addendum indicated that its purpose was to maintain and
expand work opportunities for the bargaining unit employees
97
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
set forth in Respondent's contract with the Charg-
ing Party.
Considering all of the facts, I am not persuaded that
Respondent, by Trettin, threatened employees with re-
taliation if they failed to agree to a reduction in rates of
pay. Rather, the overall facts reveal that Trettin indicat-
ed to employees that Respondent was concerned that it
could not stay in business at Coal Grove under the cur-
rent existing collective-bargaining agreement, and that
any loss of employment would be one flowing from eco-
nomic effect. Accordingly, I conclude and find that Re-
spondent, by Trettin's remarks relating to economic con-
ditions, did not violate Section 8(a)(l) of the Act.
2. The General Counsel alleges and Respondent denies
that, during late April and early May 1980, Respondent,
acting through Charlie Hamlin, at Respondent's Coal
Grove, Ohio, facility, bypassed the Union and dealt di-
rectly with its employees in the bargaining unit by meet-
ing with said employees and promising new rates of pay
lower than those applicable to them under the collective-
bargaining agreement.
The facts are clear that Hamlin met with and dealt di-
rectly with bargaining unit employees concerning an at-
tempt to secure their agreement to new rates of pay
lower than those applicable under the collective-bargain-
ing agreement. The critical issue is whether such efforts
by Respondent had been authorized by Everett for the
Union. Considering Hamlin's letter of May 27, 1980, to
Everett, with copies of such letter to Robert Cassidy,
chairman of the Ohio Conference of Teamsters, and the
lack of any evidence that the exclusive collective-bar-
gaining representative protested such actions after receipt
of such May 27, 1980, letter, I am persuaded that the
facts reveal that Respondent's direct dealing with em-
ployees was authorized by the exclusive collective-bar-
gaining representative. Accordingly, it is concluded and
found that the allegations of unlawful conduct, of direct
dealing with bargaining unit employees, is not estab-
lished. Such allegations will be recommended to be dis-
missed.
G. Events of May 18, 1980
Following the events concluding on or around May
10, 1980, involving a rejection by bargaining unit em-
ployees of Respondent's proposed special addendum of
May 8, 1980, Respondent contacted Teamsters Local No.
505 regarding its "expansion of its Kenova, West Virgin-
ia facility." Hamlin, on May 18, 1980, telephoned Boyd,
president of Teamsters Local No. 505, and discussed the
expansion of such West Virginia facility.
H. Events-May 27-July 15, 1980
1. On or about May 27, 1980, Respondent transmitted
the following letter to Local 159.
Mr. Vic Everett, Business Agent
Teamsters Local Union No. 159
1701 Jackson Avenue
Portsmouth, Ohio 45662
May 27, 1980
RE: Coal Grove, Ohio, Terminal Closing-Effective
June 29, 1980.
Dear Mr. Everett:
This will confirm our discussions and meeting with
you (4-22-80) and Mr. Robert Cassidy (5-05-80),
Chairman of the Ohio Conference of Teamsters,
representatives of the bargaining unit employee
drivers per the above captioned.
The bargaining unit drivers were advised from
April 23rd through May 10th, 1980, regarding the
severe economic and competitive circumstances ex-
isting at this terminal location. In an effort for the
company to remain at this location, maintaining
and/or expanding work opportunities, being in a
position to afford drivers the opportunity to secure
a livelihood, the needed incentive Special Work
Addendum (per Article 24, Section 24.1 of the Cen-
tral States Area Tank Truck Agreement and Ohio
Rider) was presented to the drivers. The company's
efforts were rejected by the bargaining unit employ-
ee drivers.
It was understood at time of discussions and meet-
ings, as previously mentioned, the existing circum-
stances would force the permanent closing of the
Coal Grove, Ohio, terminal and the bargaining unit
drivers presently working would only retain the
rights specified in Article 5, Section 5.5 of the Cen-
tral States Area Tank Truck Agreement.
Since the competitive and economic circumstances
which were the subject of said meetings have not
improved, the company has no recourse but to
advise you that our heretofore tentative decision to
close the Coal Grove, Ohio, terminal has been final-
ized. Accordingly, the Coal Grove terminal will be
permanently closed effective June 29, 1980. Appro-
priate bids shall be posted in the Coal Grove termi-
nal to provide the employee drivers the voluntary
opportunity to follow the work which will be trans-
ferred.
In accordance with the provisions of the National
Labor Relations Act, Ford Brothers, Inc. stands
ready to meet with Local No. 159 as the representa-
tive of its employee drivers at the Coal Grove,
Ohio, office facility to discuss fully the effects of
this pending closing. Please contact me as soon as
possible if you wish to discuss this issue any further.
Respectfully,
FORD BROTHERS, INC.
/s/ Charlie M. Hamlin
Charlie M. Hamlin
Director of Personnel and Labor Relations
Certified Mail No. 922763
Return Receipt Requested
cc: Mr. Robert Cassidy, Chairman
Ohio Conference of Teamsters
Certified Mail No. 966764
Return Receipt Requested
98
FORD BROTHERS, INC.
Mr. J. Robert Ford
Mr. R. T. Trettin
2. On or about May 28, 1980, Respondent posted "Bul-
letin No. 50." Such bulletin notified the drivers in effect
that the Coal Grove terminal would be closed effective
as of June 29, 1980, and that bids would be posted for
transfers to other Ford terminals. Such bulletin included
bid forms for transfers to Columbus, Ohio; to Cincinnati,
Ohio; and to Kenova, West Virginia.' 3
3. On or about June 16, 1980, Director of Personnel
and Labor Relations Hamlin notified President Boyd. of
Teamsters Local No. 505, that the expansion of the
Kenova, West Virginia, facility would become effective
on June 29, 1980.14
4. At some point of time after June 16 and prior to
June 24, 1980, the Respondent had conversations with
Cassidy of the Ohio Conference of Teamsters and agreed
to postpone the closing of the Coal Grove terminal.
5. On or about June 24, 1980, Respondent notified its
employees that the closing of the Coal Grove, Ohio, ter-
minal had been postponed to a later date "pending the
outcome of a forthcoming meeting scheduled with the
Chairman of the Ohio Conference of Teamsters and
committee members."' 5
6. On June 30, 1980, Trettin for Respondent transmit-
ted the following letter to the Union. 1 6
June 30, 1980
Mr. Robert Cassidy, Chairman
Ohio Conference of Teamsters
1127 Ninth Street, S.W.
Canton, Ohio 44707
Dear Mr. Cassidy:
In accord with my commitment to inform you of
any steps taken or contemplated in the matter of
our closing of the Coal Grove terminal and corre-
sponding transfer of business to Columbus, Cincin-
nati and Kenova facilities, I have enclosed complet-
ed copies of our Bulletin No. 50 Special Notice.
It should be noted in review hereof that the de-
termination to close the Coal Grove facility is now,
and has always been, based upon economic and
1" Respondent contends that in effect it had made two separate deci-
sions, (I) to move to Kenova, West Virginia, and (2) to get companywide
contractual relief. Although a finding either way would not affect the ul-
timate decision in this case, the overall facts and statements set forth in
writing in the special drivers addendum of May 8, 1980, clearly reveal that
Respondent first sought contractual relief under circumstances to indicate
that movement to Kenova was an alternative decision which came into
being only after Respondent's May 8, 1980, proposal had been rejected.
Thus, it is noted that Respondent contacted Boyd concerning "expansion
of" the West Virginia facility only after the rejection of the May 8, 1980,
proposal.
14 The overall facts reveal that the "closing" of the Coal Grove facili-
ty and the expansion of the Kenova facility were intended in effect to
constitute a simultaneous act. In effect, a transfer of operations was con-
templated.
"s Prior to this time, Respondent had been engaged in efforts to
modify the method of driver compensation at its Columbus, Cincinnati,
and Marietta facilities.
"$ A review of the statements in this letter as compared to written
statements in the May 8, 1980, proposal persuades that the statements in
this letter relating to reasons for closing the Coal Grove terminal are self-
serving and not to be found factually based.
operational considerations apart from the driver's
rejection of our incentive proposal. As such, we
have attempted to make our intentions clear to all
involved. Upon inquiry of the drivers relative to the
import of our scheduled meeting, it was emphasized
that matters to be discussed therein would not in-
clude a change in our posture relative to Coal
Grove and the consequent transfer of business. It
was further explained that the physical closing of
Coal Grove was simply being delayed until after
our meeting in hopes of an arrangement which
would apply company-wide, including the facilities
to which business is to be transferred.
As can be readily observed, someone has errone-
otisly advised the Coal Grove drivers that they
were to ignore our Bulletin No. 50 based upon the
delay of the physical closing of Coal Grove. The
Special Notice and attachments thereto were availa-
ble for a period of thirty (30) days, allowing more
than ample time for decisions regarding the follow-
ing of work to be made. We must, in light of the
failure of the majority of Coal Grove drivers to in-
dicate their work preferences as offered, assume
that they have been misinformed or in the alterna-
tive, that they do not intend to exercise their option
to follow the work to be transferred. In either case,
we feel that the action (or lack thereof) absolutely
jeopardized the ability of this company to achieve
proper economics in its operation and plan for en-
hanced work opportunities for its employees.
Your kind consideration hereof is greatly appreci-
ated. I will see you on the 7th in Columbus.
Sincerely,
FORD BROTHERS, INC.
/s/ Richard T. Trettin
Richard T. Trettin,
Vice President
Certified Mail No. 922774, R.R.R.
cc: Roger Hunt, President Local #159 Certified
Mail No. 922775, R.R.R.
7. On July 7, 1980, the Respondent met with repre-
sentatives of the Ohio Conference of Teamsters and the
various locals representing employees at its various ter-
minals. Various proposals concerning relief or contract
adjustment on a companywide basis were discussed.
During this meeting, Respondent pointed out the "Ken-
tucky" rider as comparison to the "Ohio" rider. A plan
of compensation based on a percentage of the load was
discussed and rejected by the Teamsters. A suggestion
was made to Respondent to formulate a compensation
program based on mileage and hours. On July 8, 1980,
Respondent formulated a mileage and hour proposal and
submitted the same to the Union. On July 15, 1980, the
Union notified Respondent that its proposal (mileage and
hour type) had been rejected.
8. On or about August 25, 1980, Respondent transmit-
ted to its employees the following bulletin:
99
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AUGUST25, 1980
BULLETIN NO. 55
NOTICE: To all driver personnel domiciled at
Ford Brothers, Inc., 510 Riverside Drive, Coal
Grove, Ohio
Per-Article 5, Section 5.5.. Paragraph (b) (2) of
The Central Conference of Teamsters Tank Truck
Agreement.
This is to advise all driver personnel and Local
Union No. 159 per above notice Ford Brothers,
Inc., is partially closing the Coal Grove, Ohio, ter-
minal. Part of the remaining business and work is
being transferred to another terminal location as the
company has no recourse since the competitive and
economic circumstances have not improved as of
this date. Accordingly, the partial closing of Coal
Grove, Ohio, terminal will become effective Sep-
tember 28, 1980.
As specified in Article 5, Section 5.5., Paragraph (b)
(2) of The Central Conference of Teamsters Tank
Truck Agreement, "when a branch, terminal, divi-
sion or operation is closed or partially closed and
the work of the branch, terminal, division or oper-
ation is transferred to another branch, terminal, di-
vision or operation in whole or in part, an employee
at the closed or partially closed down branch, ter-
minal, division or operation shall have the right to
transfer to the branch, terminal, division or oper-
ation into which the work was transferred if regular
work is there available. Any employee who elects
to transfer in accordance with the provisions of this
section shall, as of the date that work becomes
available and they are put to work at the terminal
into which they are transferring, be dovetailed into
the seniority list of the terminal into which they are
transferring in accordance with their company se-
niority."
(1) Effective September 28, 1980, the Coal
Grove, Ohio, terminal facility will continue to oper-
ate and handle the present business or work that has
been generated in Coal Grove, Ironton, South Point
and Haverhill, Ohio, area.
(2) Effective September 28, 1980, the Kenova,
West Virginia, terminal facility will continue to op-
erate and handle the present business or work that
has been generated in Kenova, Huntington and
Charleston, West Virginia, and Leach, Kentucky,
area.
As previously stated above, the employee driver(s)
wishing to follow said work being transferred per
Article 5, Section 5.5, Paragraph (b) (2) of The
Central Conference of Teamsters Tank Truck
Agreement may do so voluntarily by signing the
Bid Notice, Appendix A.
Your immediate supervisor at the Coal Grove,
Ohio, terminal has been posted with referred Bid
Notice (Appendix A), being available for signature
of driver(s) wishing to follow work being trans-
ferred.
Should an employee driver now employed and
working for Ford Brothers, Inc., at Coal Grove,
Ohio, terminal fail to sign bid notice to follow the
transfer of work as mentioned above prior to Sep-
tember 28, 1980, such employee driver(s) will have
forfeited his individual rights to avail himself for a
transfer at a later date per this transfer of work.
In accordance with the Central Conference of
Teamsters Tank Truck Agreement, your representa-
tives, Local Union No. 159 and the Chairman of the
Ohio Conference of Teamsters, have been notified
regarding the partial closing Coal Grove, Ohio, ter-
minal facility.
Respectfully,
FORD BROTHERS, INC.
/s/ Charlie M. Hamlin
Charlie M. Hamlin
Director of Personnel & Labor Relations
cc: J. Robert Ford
Richard T. Trettin
Roger Hunt, Pres., Local N. 159
Certified Mail No. 922781, R.R.R.
Robert Cassidy, Chairman
Ohio Conference of Teamsters
Certified Mail No. 922782, R.R.R.
Copy to all Coal Grove, Ohio drivers
mailed to last known address.
I. Events of Late July and Early August 1980; Alleged
Unlawful Assistance
Prior to May 1980, Respondent had two or three em-
ployees, of the classifications in the appropriate bargain-
ing unit, employed at Neal, West Virginia. Such employ-
ees were not represented by any union and were not
covered by any collective-bargaining agreement. As indi-
cated, after bargaining unit employees at Coal Grove had
rejected proposed changes in the method of computation
of pay, Labor Relations Director Hamlin on May 18,
1980, contacted President Boyd of Local 505 of the
Teamsters and discussed expansion of Respondent's West
Virginia facility, referred to above. Around this time,
Respondent moved its Neal facility to Kenova, West
Virginia.
The overall facts reveal it clear that the "partial clos-
ing" of Coal Grove and the expansion of the West Vir-
ginia facility constituted related acts. After the Union
(Local 159 and the Central Conference of Teamsters) on
July 15, 1980, rejected Respondent's "mileage and hour"
proposal, the Respondent and Local 505 entered into a
collective-bargaining agreement, around early August,
concerning employees employed and to be employed at a
facility at Kenova, West Virginia. The facts are clear
that the agreement between the Respondent and Local
505 occurred before a representative complement of em-
ployees had been hired or transferred to such facility,
and even before any employee had signed a card author-
100
FORD BROTHERS, INC.
izing Local 505 to be the exclusive collective-bargaining
representative of such employee. 17
Around a week or two before Respondent entered into
a collective-bargaining agreement with Local 505,
around August 1980, Superintendent Gibson told em-
ployee Smith in effect that the employees would have to
go union if they wanted to work. In total effect what
Gibson told Smith is revealed by the following credited
excerpts from Smith's testimony:
He said that we'd have to go union. If we wanted
to work, we'd have to go union. I said is this you
saying this, or is this Ford Brothers saying this?
And he said, this is Ford Brothers saying this. He
said, they said they wouldn't jeopardize the termi-
nal over here for three men. That you work union
if you work at this terminal. You would be union.
Prior to the above event, none of Respondent's West
Virginia facility employees had belonged to a union. In
fact, in the past, Respondent had clearly opposed the
unionization of such employees.
Also, it is noted that the two employees who signed
authorization cards for Local 505 of the Teamsters
signed such cards in a coercive background. Thus, the
above statements by Gibson had been made. The em-
ployees were directed to Hamlin's office, were given
union cards by Hamlin, and were told in effect to pre-
date such cards in order to obtain "benefits" as of
August 1, 1980. Such cards were later transmitted by
Hamlin to Local 505.
Contentions and Conclusions
1. The General Counsel alleges and Respondent denies
that on or about July 30, 1980, Respondent, acting
through Sidney Gibson, at Respondent's Kenova, West
Virginia, facility, impliedly threatened an employee with
discharge unless the employee executed an authorization
card accepting Teamsters Local 505 as his representative
for the purposes of collective bargaining by stating that
Respondent would not allow nonunion employees to
jeopardize the Kenova facility.
Considering all of the facts in total context, I conclude
and find that Gibson's remarks to employee Smith con-
stituted a threat as alleged, and that such threat constitut-
ed conduct violative of Section 8(a)(2) and (1) of the
Act.
2. The General Counsel alleges and Respondent denies
that:
During early August, 1980 .... Respondent,
acting through Charley Hamlin, at Respondent's
Kenova, West Virginia, facility, by requesting em-
ployees to execute authorization cards accepting
Local 505 as their representative for the purpose of
collective bargaining, and acting as a conduit for
the transmittal of executed authorization cards to
Local 505, rendered aid, assistance and support to
Local 505.
17 The agreement was dated August 8, 1980. Whether this is correct is
not clear. It is clear that the agreement was executed in early August
1980.
Considering all of the facts set forth above, it is clear
that Respondent, by Hamlin, violated Section 8(aX2) and
(I) of the Act by rendering aid, assistance, and support
to Local 505 as alleged. It is so concluded and found.
3. The General Counsel alleges and Respondent denies
that:
On or about August 8, 1980, Respondent and Local
505 entered into a collective-bargaining agreement
covering the rates of pay, wages, hours of employ-
ment and other terms and conditions of employment
of Respondent's employees in the following unit:
All employees, including truck drivers and me-
chanics, employed by the Respondent at its
Kenova, West Virginia facility; but excluding all
office clerical employees, and all professional em-
ployees, guards and supervisors as defined in the
Act.
Considering all of the above referred to facts and the
collective-bargaining agreement between Local 505 and
Respondent in the record as an exhibit, it is clear that the
facts as alleged have been established.
4. The General Counsel alleges and Respondent denies
that "Respondent recognized and entered into the collec-
tive-bargaining agreement with Local 505, as described
above, notwithstanding the fact that Local 505 did not
represent an uncoerced majority of Respondent's em-
ployees in the said unit."
Considering all of the above facts, it is clear and I con-
clude and find that the facts as alleged have been estab-
lished. Thus, prior to the time that a representative em-
ployee complement had been employed at its Kenova,
West Virginia, facility, and prior to the time that any
employee at such facility had executed an authorization
card for Local 505, Respondent entered into a collective-
bargaining agreement with Local 505 in which Respond-
ent recognized Local 505 as the exclusive collective-bar-
gaining representative of the employees in the described
Kenova, West Virginia, bargaining unit. Accordingly, it
is concluded and found as alleged that Respondent vio-
lated Section 8(a)(2) and (1) of the Act.
J. The Transfer of Employees and Work' 8
On or about September 28, 1980, Respondent trans-
ferred a very substantial portion of its truckdriving duties
relating to servicing of customers in the Kentucky-West
Virginia area from its Coal Grove facility to its Kenova,
West Virginia, facility. At the same time, Respondent
transferred the following employees from its Coal
Grove, Ohio, facility to its Kenova, West Virginia, facili-
ty.
Leslie Burd
Glenn Carr
Ellis Davis
Tex G. Devore
Homer Dickerson
Boyce Dotson
Lester Napier
Donald Rambo
William Riffe
Dean R. Robinson
Robert Ross
Kenny Lee Skeens
is The facts are clear and are not in real dispute
101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harold Grim Kenny Ray Skeens
Carl Hamilton Ivan Smith
Don Holbrook Robert L. Smith
Glenn Hopper Harry G. Sparks
Don Howard Charles Spears
Fred Mann William Stover
James McGinnis John Thomas
George Menshouse Hancel Truesdell
Harold Montavon Tommy Ward
Chester Napier Merrill Wells
Elmer Napier Clayton Wheeler
The facts are clear that Respondent employed the
above-named employees at Kenova, West Virginia, facili-
ty at rates of pay less than the contractual rates of pay
applicable to the employees under the existing collective-
bargaining agreement between it and the Union for the
Coal Grove facility. Instead, Respondent employed such
employees at pay rates and other conditions of employ-
ment as set forth under the August 1980 collective-bar-
gaining agreement with Local 505,19 and different from
the pay rates and conditions as set forth in or required
by its existing collective-bargaining agreement with
Local 159.
Contentions and Conclusions
The General Counsel alleges in effect and contends
that the failure to utilize the wage rates and conditions of
employment at the Kenova facility in August and Sep-
tember 1980, which were set in the existing collective-
bargaining agreement with the Union (Local 159 and the
Central Conference of Teamsters), constituted conduct
violative of Section 8(a)(5) and (1) of the Act. Respond-
ent appears to argue that Respondent was free to make
changes or to implement different wages and conditions
of employment for Kenova employees.
I find merit to the General Counsel's contentions. The
overall facts reveal that the bargaining unit work for the
Coal Grove unit in this case included the work trans-
ferred to the Kenova facility. The Coal Grove bargain-
ing unit had performed such bargaining unit work. Re-
spondent's actions in meeting and discussing its problem
concerning the Kentucky-West Virginia work and other
economic problems with the Union, in following its col-
lective-bargaining agreement with the Union (Local 159
and the Central Conference of Teamsters), and in recog-
nizing a union albeit an unlawfully assisted union, consti-
tute in effect a recognition or an admission by Respond-
ent that the facility at Kenova was in fact part of the ex-
isting bargaining unit. The transfer of a substantial
number of bargaining unit employees from one facility to
another facility to continue performing bargaining unit
work reveals a continuation of the bargaining unit.
Under such circumstances, the implementation of wage
scales and conditions of employment different from those
in the existing collective-bargaining agreement, without
agreement thereto by the Union and a consequent failure
to apply the existing collective-bargaining agreement
i' The employees who were transferred from the Coal Grove, Ohio,
facility to Kenova, West Virginia, had bid for such transfer in accordance
with contractual bidding procedures.
with Local 159, constituted conduct violative of Section
8(a)(5) and (1) of the Act.2 0
Respondent's major contention, in defense of its ac-
tions of transfer of operations, of transfer of employees,
and of implementing new terms and conditions of em-
ployment for the employees transferred, is that it did so
in accordance with its collective-bargaining contract
with the Teamsters. I have considered such argument
but find it without merit. Respondent's collective-bar-
gaining agreement covering its employees was with the
Union (Local 159 and the Central Conference of Team-
sters). Reasonably construed, the bargaining unit covered
by such contract was the one represented by Local 159.
Reasonably construed, the bargaining unit work covered
by such contract was the work performed by such bar-
gaining unit employees. The overall facts are clear that
what was contemplated and what actually occurred was
a transfer of bargaining unit work and bargaining unit
employees to an essentially new facility. As has been in-
dicated, Respondent's own actions, in its unlawful agree-
ment with Local 505 concerning such new facility, con-
stitute in effect an admission that it realized that it was
transferring bargaining unit work and bargaining unit
employees from Coal Grove, Ohio, to Kenova, West
Virginia. Reasonably construed, the collective-bargaining
agreement between Respondent and the Union provided
for the procedures as to transfers of individual employ-
ees. Such contract did not provide for the determination
of collective bargaining at a new facility staffed by non-
bargaining unit employees or for nonbargaining unit
work. Where the facts are clear that bargaining unit
work has been transferred to a new facility and such fa-
cility is substantially manned by transferred bargaining
unit employees, it is clear that the new facility is in fact
an accretion to the existing bargaining unit. Accordingly,
it is clear, as has been found, that the failure of Respond-
ent to apply the terms of its collective-bargaining agree-
ment with the Union (Local 159 and the Central Confer-
ence of Teamsters) on and after September 28, 1980, at
its Kenova, West Virginia, facility, was and is violative
of Section 8(a)(5) and (1) of the Act.
The General Counsel alleges and contends in effect
that the transferring of "truck driving" duties for em-
ployees from its Coal Grove, Ohio, facility to its
Kenova, West Virginia, facility, on September 28, 1980,
was violative of Section 8(aX5) and (1) of the Act be-
cause the Union was not afforded an opportunity to ne-
gotiate and bargain as the exclusive representative of the
bargaining unit employees with respect to such acts and
conduct and the effects of such acts and conduct. Re-
spondent argues in effect that it afforded the Union an
opportunity to bargain about the transfer of work from
Coal Grove, Ohio, to Kenova, West Virginia.
The overall facts reveal that the Union had an oppor-
tunity to bargain about the possibility of transfer of
work. Such opportunity was tainted, however, by Re-
spondent's conduct violative of Section 8(aXI), (2), and
'0 Where there is an existing collective-bargaining agreement, Sec. 8(d)
provides in effect that changes in terms of the contract cannot be made
unilaterally or without agreement by the other contracting party. See
Eastern Market Beef Processing Corporation, 259 NLRB 102 (1981).
102
FORD BROTHERS, INC.
(3), as found otherwise herein. Under such circum-
stances, I am persuaded that the Union did not have a
realistic opportunity to bargain about the transfer of
work from Coal Grove, Ohio, to Kenova, West Virginia.
Accordingly, it is concluded and found, as alleged, that
Respondent engaged in conduct violative of Section
8(aX5) and (1) of the Act.
The General Counsel contends and alleges and Re-
spondent denies that the transfer of 34 employees from
Coal Grove, Ohio, to Kenova, West Virginia, constituted
discriminatory conduct within the meaning of Section
8(aX3) and (1) of the Act.
Considering that Respondent unlawfully assisted Local
505 and entered into a collective-bargaining agreement
with Local 505, and that Respondent did not honor its
collective-bargaining agreement with Local 159 as re-
gards its Kenova facility, the facts require a finding that
Respondent's transfer of employees from Coal Grove,
Ohio, to Kenova, West Virginia, was discriminatorily
motivated to evade its bargaining and contractual obliga-
tions with Local 159. This being so, Respondent's trans-
fer of employees on September 28, 1980, from Coal
Grove, Ohio, to Kenova, West Virginia, constituted con-
duct violative of Section 8(a)(3) and (1) of the Act. It is
so concluded and found.2
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent as set forth in section III,
above, occurring in connection with Respondent's oper-
ations described in section I, above, have a close, inti-
mate, and substantial relationship 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.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Ford Brothers, Inc., is an employ-
er engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Teamsters Local Union No. 159, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America is, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
3. Teamsters Local Union No. 505, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America is, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
4. By transferring employees in such a manner as to at-
tempt to place them under the jurisdiction of a union
other than that of their exclusive collective-bargaining
representative so as to evade contractual obligations, Re-
spondent has discouraged membership in Local 159 by
discriminating in terms and conditions of employment,
" Helrose Bindery. Inc and Graphic Arts Finishing, Inc., 204 NLRB
499, 504 (1973).
thereby engaging in unfair labor practices in violation of
Section 8(a)(3) and (1) of the Act.
5. The following employees constitute an appropriate
unit for purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
The employees of Respondent who work at Respond-
ent's facility at Coal Grove, Ohio, and/or at Coal Grove,
Ohio, and who were transferred to Respondent's
Kenova, West Virginia, terminal, and who were treated
by the parties as covered by the collective-bargaining
agreement, Central States Area Tank Truck Agreement,
and the Ohio Rider to Central States Area Tank Truck
Agreement, as specified in such agreements in effect in
1980, and as stipulated with respect to truckdriver and
mechanic employees as being represented by Teamsters
Local 159, and other Kenova terminal employees per-
forming similar work, and excluding all office clerical
employees, and all professional employees, guards and
supervisors as defined in the Act. Such employees are
also referred to in one of the above agreements as fol-
lows:
Section 1.2-Employees Covered
(a) The employees covered by this Agreement
shall include any and all the employees of the Em-
ployer employed directly by and/or under the su-
pervision and control of the Employer within the
jurisdiction of the Union and who are represented
by the Local Union or during the life of this Agree-
ment may come to be represented by the Local
Union.
6. Teamsters Local Union No. 159, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, and the Central
Conference of Teamsters, constitute a single, integrated
bargaining representative and, as such single, integrated
bargaining representative, has been the designated exclu-
sive collective-bargaining representative of Respondent's
employees described above.
7. By refusing to bargain about the relocation of part
of an existing appropriate collective-bargaining unit, and
by refusing to recognize the above referred to exclusive
collective-bargaining representative as exclusive collec-
tive-bargaining representative for a relocated part of the
existing appropriate collective-bargaining unit and in
connection therewith refusing to apply the existing col-
lective-bargaining agreement as regards wages and con-
ditions of employment for bargaining unit employees,
Respondent has engaged in conduct violative of Section
8(aX5) and (1) of the Act.
8. By recognizing and entering into a collective-bar-
gaining agreement with, and by rendering aid and assist-
ance to, Teamsters Local Union No. 505, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Respondent has
aided and assisted a labor organization and thereby has
engaged in conduct violative of Section 8(aX2) and (1) of
the Act.
9. By the foregoing and by interfering with, restrain-
ing, and coercing its employees in the exercise of rights
103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guaranteed in Section 7 of the Act, Respondent engaged
in unfair labor practices proscribed by Section 8(a)(1) of
the Act.
10. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1), (2),
(3), and (5) of the Act, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
With regard to the 8(a)(3) violations, I shall recom-
mend that Respondent be required to make whole each
of the named employees for backpay from the date of
the discrimination against them until the date that Re-
spondent recommences applying the 1979-82 collective-
bargaining agreement between Respondent and the
Union (Local 159 and the Central Conference of Team-
sters), or successor contract as regards rates of pay and
conditions of employment for such employees. Backpay
and interest thereon is to be computed in the manner
prescribed in F W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).22
With regard to the 8(a)(2) violations, I shall recom-
mend that Respondent be ordered to withdraw recogni-
tion from, and to cease giving aid and assistance to,
Local 505 as the exclusive collective-bargaining repre-
sentative of Respondent's employees in the below listed
bargaining unit, unless and until it has been duly certified
by the National Labor Relations Board as such repre-
sentative, and that Respondent reimburse employees for
dues and initiation fees paid to Local 505.
Further, it will be recommended that Respondent be
required to cease and desist from giving effect to any
collective-bargaining agreement with Local 505 to the
extent that it covers employees in said bargaining unit.
With regard to the 8(a)(5) violations, I shall recom-
mend that Respondent, upon request, bargain collective-
ly with the Union (Local 159 and the Central Confer-
ence of Teamsters) as the exclusive bargaining repre-
sentative of the employees in the appropriate bargaining
unit (employees at Coal Grove, Ohio, and Kenova, West
Virginia, as specifically described in an appropriate unit
previously herein and incorporated by reference at this
point), and that Respondent apply the terms of its exist-
ing 1979-82 collective-bargaining agreement with the
Union (Local 159 and the Central Conference of Team-
sters) until such terms are changed by collective bargain-
ing, to all employees in the appropriate bargaining unit.
In such regard, the application of such terms of employ-
ment conditions to bargaining unit employees means to
immediately recommend application of such terms of em-
ployment to the Kenova employees in the appropriate
bargaining unit.
With further regard to the 8(a)(5) violations, I note
that Respondent relocated a substantial part of its bar-
2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 7i6 (1962).
gaining unit without giving the Union a realistic oppor-
tunity to bargain about such relocation. Respondent's re-
location of part of the bargaining unit to Kenova, West
Virginia, may not be of such a nature as to make a return
to Coal Grove, Ohio, difficult. Nevertheless, rather than
requiring a return of the bargaining unit work and bar-
gaining unit employees to Coal Grove, Ohio, I shall in-
stead recommend that Respondent be required to bargain
with the Union as to such return to Coal Grove or as to
adjustments in conditions otherwise.
In view of Respondent's significant violations of Sec-
tion 8(a)(1), (2), (3), and (5), as referred to above, and the
nature of the same revealing a general disregard for em-
ployees' fundamental statutory rights, a broad cease-and-
desist order will be recommended. Hickmott Foods, Inc.,
242 NLRB 1357 (1979).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 23
The Respondent, Ford Brothers, Inc., Coal Grove,
Ohio, and Kenova, West Virginia, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Transferring bargaining unit employees or bargain-
ing unit work or relocating appropriate bargaining unit
operations from one facility to another facility without
consent or without giving notice to and bargaining with
the exclusive collective-bargaining representative within
the meaning of Section 8(d) of the Act.
(b) Refusing to apply the terms and conditions of the
existing collective-bargaining agreement with the Union
(Local 159 and the Central Conference of Teamsters),
covering employees in the below listed appropriate col-
lective-bargaining unit, to employees in said appropriate
collective-bargaining unit when performing collective-
bargaining unit work.
(c) Discriminating against employees so as to rid itself
of contractual obligations, or bargaining obligations oth-
erwise with the Union (Local 159 and the Central Con-
ference of Teamsters) or any other union as the exclusive
collective-bargaining representative of the employees in
the appropriate bargaining unit set out hereinafter, and
otherwise discriminating against employees because of
their membership in any labor organization.
(d) Refusing to bargain collectively with the Union
(Local 159, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, and
the Central Conference of Teamsters) as the exclusive
bargaining representative of all employees in the follow-
ing appropriate unit.
The employees of Respondent who work at Respond-
ent's facility at Coal Grove, Ohio, and/or at Coal Grove,
Ohio, and who were transferred to Respondent's
23 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
104
FORD BROTHERS, INC.
Kenova, West Virginia, terminal, and who were treated
by the parties as covered by the collective-bargaining
agreement, Central States Area Tank Truck Agreement,
and the Ohio Rider to Central States Area Tank Truck
Agreement, as specified in such agreements in effect in
1980, and as stipulated with respect to truckdriver and
mechanic employees as being represented by Teamsters
Local 159, and other Kenova terminal employees per-
forming similar work, and excluding all office clerical
employees, and all professional employees, guards and
supervisors as defined in the Act constitute an appropri-
ate bargaining unit. Such employees are also referred to
in one of the above referred to agreements as follows:
Section 1.2-Employees Covered
(a) The employees covered by this Agreement
shall include any and all the employees of the Em-
ployer employed directly by and/or under the su-
pervision and control of the Employer within the
jurisdiction of the Union and who are represented
by the Local Union or during the life of this Agree-
ment may come to be represented by the Local
Union.
(e) Granting recognition to, executing a collective-bar-
gaining agreement with, or otherwise maintaining, en-
forcing, or giving effect to recognition or bargaining
agreements with, or otherwise aiding and assisting Team-
sters Local Union No. 505, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, in any other
manner to be the exclusive collective-bargaining repre-
sentative of any of the employees in the appropriate unit
described above.
(f) Threatening employees with discharge and other
reprisals to cause them to sign authorization cards for a
union.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by lawful agreements in
accord with Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Make the employees listed below whole for any
loss of pay or other benefits suffered by reason of the
discrimination against each in the manner described
above in the section entitled "The Remedy."
Leslie Burd
Glenn Carr
Ellis Davis
Tex G. Devore
Homer Dickerson
Boyce Dotson
Harold Grim
Carl Hamilton
Don Holbrook
Glenn Hopper
Don Howard
Fred Mann
James McGinnis
Lester Napier
Donald Rambo
William Riffe
Dean R. Robinson
Robert Ross
Kenny Lee Skeens
Kenny Ray Skeens
Ivan Smith
Robert L. Smith
Harry G. Sparks
Charles Spears
William Stover
John Thomas
George Menshouse
Harold Montavon
Chester Napier
Elmer Napier
Hancel Truesdell
Tommy Ward
Merrill Wells
Clayton Wheeler
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Rescind any existing collective-bargaining agree-
ment with and withdraw and withhold recognition from
Teamsters Local Union No. 505, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, as the exclusive bar-
gaining representative of any of the employees in the ap-
propriate unit described above, unless and until it has
been certified by the National Labor Relations Board as
such representative.
(d) Reimburse all employees for all initiation fees and
dues paid by them to Teamsters Local Union No. 505,
affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America,
through dues checkoff since on or about August 1, 1980.
(e) Recognize and, upon request, bargain in good faith
with Teamsters Local Union No. 159, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America and the Central
Conference of Teamsters, as the exclusive collective-bar-
gaining representative of employees in the above-de-
scribed appropriate bargaining unit, with respect to the
continued location or relocation of the bargaining unit
facilities at Coal Grove, Ohio, and Kenova, West Virgin-
ia, or any adjustments thereto, and as to all other matters
relating to wages, rates of pay. hours, and other terms
and conditions of employment.
(f) Submit the work at its Kenova, West Virginia, ter-
minal for rebidding by employees, with all employees
having the same rights for such bidding as they had on
September 27, 1980, and assign such employees to the
Kenova, West Virginia, terminal in accordance with the
collective-bargaining agreement with Local 159 and the
Central Conference of Teamsters. provided, however, if
agreement is made with said Union resulting in a return
of the Kenova, West Virginia. work to Coal Grove,
Ohio, such rebidding by employees and reassignment of
employees shall be in accordance with such agreement.
(g) Apply the terms and conditions of the collective-
bargaining agreement with Local 159 and the Central
Conference of Teamsters, as it now exists or may be
modified within the concept of collective bargaining, to
all employees in the appropriate collective-bargaining
unit, set forth above, as long as said Union is the exclu-
sive collective-bargaining representative of such employ-
ees.
(h) Post at Respondent's facilities at Coal Grove, Ohio,
and Kenova, West Virginia, copies of the attached notice
marked "Appendix." 2 4 Copies of said notice, on forms
24 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Continued
105
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provided by the Regional Director for Region 9, after
being duly signed by Respondent's representatives, shall
be posted by it immediately upon receipt thereof, and be
maintained by Respondent for 60 consecutive days there-
after, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
steps shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any other
material.
(i) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of unlaw-
ful conduct not specifically found to be violative herein
be dismissed.
106