Ford Brothers, Inc.

National Labor Relations Board - Board Decisions

May 23, 1989

294 N.L.R.B. 107 (N.L.R.B. 1989)

FORD BROS 107
Ford Brothers, Inc. and Ohio Conference of Team-
sters , affiliated with the International Brother-
hood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , AFL-CIO' and Team-
sters Local Union No. 114, affiliated with the
International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America,
AFL-CIO and Teamsters Local Union No. 159,
affiliated with the International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America , AFL-CIO and Teamsters
Local Union No. 413 , affiliated with the Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO and Teamsters Local Union No. 637, affili-
ated with the International Brotherhoood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America , AFL-CIO. Cases 9-CA-
20118-1, 9-CA-20118-2, 9-CA-20118-3, 9-
CA-20118-4, and 9-CA-20118-5
May 23, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On July 31, 1985, Administrative Law Judge
William A. Pope II issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the Charging Party and the General Counsel
each filed exceptions and briefs in support thereof
and in answer to the Respondent's exceptions, and
the Respondent filed an answering 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, 2 and
' On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO Accordingly, the caption has been amended to
reflect that change
2 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
Wall 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
In finding that the Respondent's transfer of trucking operations to
West Virginia was motivated by considerations other than seeking to
maintain operations during the strike, the judge relied in part on the fact
that the Respondent maintained the West Virginia operations some
months beyond the termination of the strike The Respondent in its ex-
ceptions argues that the judge ignored evidence that the Respondent was
bound to a 6-month lease in Parkersburg, West Virginia We agree with
the judge that the evidence was insufficient to establish any such binding
obligation, in view of the testimony by the Respondent's president that
he was not sure of the exact term of the lease ("I think it was about six
months"), that he had "probably a moral" rather than a "legal" obliga-
tion, that the Respondent probably left Parkersburg before the supposed
lease term was up, and that he did not "know" whether they could have
left even earlier, immediately after the strike
conclusions,3 as modified below and the recom-
mended Order as set forth in full below.
The General Counsel has excepted to the judge's
failure to find that the Respondent's dispatcher,
Carl Hamilton, an admitted supervisor, violated
Section 8(a)(1) of the Act by threatening or assault-
ing employees with a handgun. We find merit in
the General Counsel's exceptions.
On the morning of July 19, 1983, the employees
of the Respondent's Marietta, Ohio terminal initiat-
ed an economic strike. The same day, striking em-
ployee Larry Quillen stopped Hamilton's van at the
picket line as he was leaving the terminal Quillen
told Hamilton that "he was doing us wrong," and
an argument followed. Hamilton held up a hol-
stered handgun for Quillen to see. Quillen laughed
and said he also had one. He did not actually have
one with him Probationary employee Roger Vass
was a passenger in Hamilton's van. Striking em-
ployee James Huff also saw Hamilton's gun. He re-
ported the incident to the other pickets after Ham-
ilton had driven away.
The judge found that Quillen did not feel threat-
ened or frightened by Hamilton's actions. He also
noted that Hamilton did not make any verbal
threats, did not remove the handgun from the hol-
ster, and did not point the gun at anyone. Accord-
ingly, the judge found that there was not any
threat or assault and dismissed the 8(a)(1) allega-
tion We disagree.
We find that Hamilton's showing of his handgun
in the course of an argument with a striking em-
ployee would reasonably tend to coerce the pickets
from engaging in their lawful economic strike and
picketing.4 Even though Quillen may not have
been frightened by Hamilton's gun, the judge erred
in relying on this subjective factor in dismissing the
complaint allegation. The test is not whether em-
ployees were in fact coerced by the employer, but
whether the employer's conduct could reasonably
be said to have a tendency to coerce employees in
the exercise of their protected rights Moreover,
other employees either saw the gun or were in-
formed about it. In the absence here of any factors
concerning the Marietta picket line that might con-
ceivably justify the possession and display of a gun,
Hamilton's conduct constituted a threat in violation
of Section 8(a)(1).
3 In adopting the judge's conclusion that the Respondent violated Sec
8(a)(5) by failing to bargain about the decision to subcontract hauling as-
signments for the customer Jetcoat, we rely additionally on Collateral
Control Corp, 288 NLRB 308 (1988) Further, we find that under any
view of Otis Elevator Co, 269 NLRB 891 (1984), the Respondent had an
obligation to bargain with the Union over the decision to close its Mari-
etta and Coal Grove, Ohio terminals, and transfer their trucking oper-
ations to facilities in West Virginia
"Highland Plastics, 256 NLRB 146 (1981)
294 NLRB No. 10
108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDERS
The National Labor Relations Board orders that
the Respondent, Ford Brothers, Inc , Ironton,
Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening its employees, or those of its
alter ego Ford Maintenance and Cleaning Corpora-
tion, with discharge unless they waive their collec-
tive-bargaining rights, or any rights acquired
through collective bargaining
(b) Threatening employees with closure of the
Respondent's facilities and transfer of work else-
where if the employees engage in a strike, or fail to
support its proposals for wage concessions.
(c) Threatening striking employees with a gun.
(d) Bypassing the Teamsters Union, or any of its
Local Unions, as the exclusive bargaining repre-
sentative of the Respondent's employees in the ap-
propriate bargaining units, and dealing directly
with employees regarding the Respondent's finan-
cial condition, its desire for bargaining concessions,
or the continued operation or closure of any of its
facilities.
(e) Implementing any decision to transfer or sub-
contract to another employer work previously per-
formed by employees in the appropriate bargaining
unit at the Respondent's Columbus, Ohio facility
without notifying the Union and affording it an op-
portunity to bargain regarding the decision and its
effects
(f) Implementing any decision to close its Mariet-
ta and/or Coal Grove, Ohio facilities and to trans-
fer elsewhere work performed at those facilities
without notifying the Union and affording it an op-
portunity to bargain regarding the decision and its
effects.
(g) Failing to meet and bargain with Teamsters
Local Union No. 159, as the exclusive bargaining
representative of the Respondent's employees in
the appropriate bargaining unit, concerning imple-
mentation of rates of pay, wages, benefits, and
other terms and conditions of employment of em-
ployees in the appropriate bargaining unit em-
5 We correct the judge's remedy to provide that backpay to make
whole the employees of the Respondent's alter ego Ford Maintenance
and Cleaning Corporation shall be computed in accordance with Ogle
Protection Service, 183 NLRB 682 (1970) All interest on backpay for em-
ployees affected by the Respondent's unfair labor practices shall be com-
puted in the manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987) Accordingly, interest on and after January 1, 1987,
shall be computed at the "short-term Federal rate" for the underpayment
of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest
on amounts accrued prior to January 1, 1987 (the effective date of the
1986 amendment to 26 U S C § 6621) shall be computed in accordance
with Florida Steel Corp, 231 NLRB 651 (1977)
We leave to compliance proceedings the Respondent 's contention that
a strike in October 1983 affects its backpay liability
ployed by the Respondent's alter ego Ford Mainte-
nance and Cleaning Corporation, and failing to re-
frain from unilaterally implementing changes of
rates of pay, wages, and other terms and conditions
of employment in the absence of a good-faith genu-
ine impasse in bargaining.
(h) Failing to reinstate employees who engage in
an economic strike and have not been permanently
replaced on receipt of their unconditional offer to
return to work to their former positions or, if those
positions no-longer exist, to substantially equivalent
positions
(i) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Bargain collectively with Teamsters Local
Union No. 159 before implementing rates of pay,
wages, benefits, or other terms and conditions of
employment of employees in the appropriate bar-
gaining unit employed by the Respondent's alter
ego Ford Maintenance and Cleaning Corporation.
(b) Bargain collectively with the appropriate
Teamsters Local Unions before implementing any
decision to transfer or subcontract work performed
by employees in the bargaining unit employed at
Respondent's Columbus, Ohio facility.
(c) Bargain collectively about decision and ef-
fects with the appropriate Teamsters Local Union
before implementing any decision to close its Mari-
etta and/or Coal Grove, Ohio facilities and to
transfer work elsewhere.
(d) Rescind any rates of pay, wages, benefits, or
terms and conditions of employment put into effect
by the Respondent's alter ego Ford Maintenance
and Cleaning Corporation since it began operations
in 1983, which in any way differ from the rates of
pay, wages, benefits, and other terms and condi-
tions of employment for employees in the appropri-
ate bargaining unit and make whole employees of
Ford Maintenance and Cleaning Corporation for
any loss of wages or benefits that they sustained as
a result of changes in terms and conditions of em-
ployment unilaterally implemented by the Re-
spondent and its alter ego Ford Maintenance and
Cleaning Corporation since the latter began oper-
ations in 1983, in the manner set forth in the
remedy section of the judge's decision, as modified
in this decision.
(e) Restore to the Respondent's Columbus, Ohio
facility all Jetcoat work previously performed by
bargaining unit employees before being subcon-
tracted to F & B Transport, Inc. in 1983, and make
whole any employee for any loss of wages and
FORD BROS
other benefits suffered as a result of that unlawful
transfer of work in the manner set forth in the
remedy section of the judge's -decision, as modified
in this decision
(f) Reopen its Marietta-and Coal Grove, Ohio fa-
cilities, and offer to those employees whose posi-
tions were eliminated or otherwise adversely af-
fected by the closure in July 1983 of those facilities
immediate and full reinstatement to their former
positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or any rights or privileges previ-
ously enjoyed, and make those employees whole
for any loss of wages or benefits that they sus-
tained as the result of the closure of the Marietta
and Coal Grove, Ohio facilities, in the manner set
forth in the remedy section of the judge's decision,
as modified in this decision.
(g) Immediately reinstate all employees who
were engaged in an economic strike against the Re-
spondent from July 18 to 26, 1983, to their former
positions, or if those positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or privileges previously enjoyed,
and make those employees whole for any loss of
wages or benefits that they sustained since July 26,
1983, because of the failure of the Respondent to
reinstate them, in the manner set forth in the
remedy section of the judge's decision, as modified
in this decision.
(h) 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.
(i) Post at its facilities in Cincinnati, Columbus,
Marietta, and Coal Grove, Ohio, and in Nitro and
Parkersburg, West Virginia, copies of the attached
notice marked "Appendix."6 Copies of this notice,
on forms provided by the Regional Director for
Region 9, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted: Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material.
6 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 "
109
(l) Notify the Regional Director for Region 9 in
writing within 20 days from the date of this Order
what steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten our employees or those
of our alter ego Ford Maintenance and Cleaning
Corporation with discharge if they do not waive
their collective-bargaining rights or any rights ac-
quired through collective bargaining.
WE WILL NOT threaten our employees with clo-
sure of any of our facilities and transfer of work
elsewhere if they engage in a strike, or fail to sup-
port our proposals for wage concessions.
WE WILL NOT threaten striking employees with a
handgun.
WE WILL NOT bypass the Teamsters Union, or
any of its Local Unions, as the exclusive bargaining
representative of our employees in the appropriate
bargaining units, and WE WILL NOT deal directly
with our employees in those units concerning our
financial condition, our desire for bargaining con-
cessions, or the continued operation or closure of
any of our facilities.
WE WILL NOT implement decisions to transfer or
subcontract bargaining unit work, without afford-
ing the Teamsters Union and its appropriate Local
Union an opportunity to bargain over the decision
and its effect.
WE WILL NOT implement decisions to close our
facilities and to transfer bargaining unit work to
other facilities or locations without notifying the
Teamsters Union and its appropriate Local Union,
and giving the Union an, opportunity to bargain re-
garding the decision and its effects
WE WILL NOT change rates of pay, wages, bene-
fits, and other terms and conditions of employment
affecting bargaining unit employees in our alter ego
Ford Maintenance and Cleaning Corporation with-
out meeting and bargaining with the Teamsters
Union and its appropriate Local' Unions.
WE WILL NOT fail to reinstate immediately eco-
nomic strikers who have not been permanently re-
placed on their unqualified offer to return to work
to their former positions or, if those positions no
longer exist, to substantially equivalent positions.
110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 bargain collectively with Teamsters
Local Union No. 159 before implementing rates of
pay, wages, benefits, or other terms and conditions
of employment of employees in the appropriate
bargaining unit employed by our alter ego Ford
Maintenance and Cleaning Corporation.
WE WILL bargain collectively with the appropri-
ate Teamsters Local Unions before implementing
any decision to transfer or subcontract work per-
formed by employees of the bargaining unit em-
ployed at Respondent's Columbus, Ohio facility.
WE WILL bargain collectively about decision and
effects with the appropriate Teamsters Local
Unions before implementing any decision to close
our Marietta and/or Coal Grove, Ohio facilities
and to transfer work elsewhere.
WE WILL rescind any rates of pay, wages, bene-
fits, or terms and conditions of employment put
into effect by our alter ego Ford Maintenance and
Cleaning Corporation since it began operations in
1983, which in any way differ from the rates of
pay, wages, benefits, and other terms and condi-
tions of employment for employees in the appropri-
ate bargaining unit and WE WILL make the unit em-
ployees of Ford Maintenance and Cleaning Corpo-
ration whole for any loss of wages or benefits they
may have sustained since that company went into
operation in 1983.
WE WILL restore to our Columbus, Ohio facility
all Jetcoat work previously performed by bargain-
ing unit employees before being subcontracted to F
& B Transport, Inc. in 1983, and WE WILL make
our Columbus, Ohio bargaining unit employees
whole for any loss of wages and benefits they may
have suffered as the result of our having unlawful-
ly subcontracted this work without bargaining
about the decision and the effects of subcontract-
ing.
WE WILL reopen our Marietta and Coal Grove,
Ohio facilities, and offer to those employees whose
positions were eliminated or otherwise adversely
affected by the closure in July 1983 of those facili-
ties immediate and full reinstatement to their
former positions or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any rights or privi-
leges previously enjoyed, and WE WILL make those
employees whole for any loss of wages or benefits
that they sustained as the result of the closure of
the Marietta and Coal Grove, Ohio facilities
WE WILL immediately reinstate all employees
who were engaged in an economic strike from July
18 to 26, 1983, to their former positions or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
privileges previously enjoyed, and WE WILL make
those employees whole for any loss of wages or
benefits that they sustained since July 26, 1983, be-
cause of our failure to reinstate them immediately
on their unconditional offer to return to work.
WE WILL rescind any rates of pay, wages, bene-
fits, or other terms and conditions of employment
applicable to employees of Ford Maintenance and
Cleaning Corporation, to the extent they may differ
from those applicable to our employees in the ap-
propriate bargaining unit for similar work.
FORD BROTHERS, INC.
Mark W. Engstrom, Esq and Linda B. Finch, Esq., for
the General Counsel
William C. Moul, Esq. (Thompson and Flory), of Colum-
bus, Ohio, for the Respondent.
Sorrel Logothetis Esq. (Logothetis and Pence), of Dayton,
Ohio, for the Charging Party
DECISION
STATEMENT OF THE CASE
WILLIAM A POPE II, Administrative Law Judge In a
consolidated complaint issued on 23 April 1984, as
amended on 17 May 1984, the Regional Director for
Region 9, National Labor Relations Board, alleged that
Respondent, Ford Brothers, Inc , engaged in a series of
unfair labor practices in violation of Section 8(a)(1), (3),
and (5) of the National Labor Relations Act (the Act).
The charges were filed by five labor organizations, as
follows- The Conference of Teamsters (the Ohio Confer-
ence or the Union), Case 9-CA-20118-1; Teamsters
Local Union No. 114, Case 9-CA-20118-2, Teamsters
Local Union No 159, Case 9-CA-20118-3, Teamsters
Local Union No 413, Case 9-CA-20118-4, and Team-
sters Local Union No 637, Case 9-CA-20118-5 1 Trial
was held between 11 and 15 June 1984, in Portsmouth,
Ohio, and on 26 July 1984, in Cincinnati, Ohio
FINDINGS OF FACT
I BACKGROUND
Ford Brothers, Inc., the Respondent, is a common car-
rier incorporated in Ohio, and engaged in the interstate
transportation of bulk liquid products It operates termi-
nals in Ohio, West Virginia, Kentucky, and Pennsylva-
nia For 20 years or more, Respondent's mechanics and
drivers employed at its Ohio terminals in Coal Grove,
Marietta, Columbus, and Cincinnati, have been represent-
ed for collective-bargaining purposes by Teamsters Local
' Each of these labor organizations is affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America
FORD BROS
Unions No 159, 637, 413, and 114, respectively 2 The
Local Unions are affiliated with the Ohio Conference of
Teamsters and the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica
From the early 1960s until late 1982, the Respondent
was a member of a multiemployer bargaining group
called the Labor Relations Advisory Association (the
Association), which negotiated a series of collective-bar-
gaining agreements with the Teamsters on behalf of the
members of the Association The last agreement negotiat-
ed by the Association covered the period from 15 No-
vember 1979 through 14 November 1982.3 It was stipu-
lated by the parties to this proceeding that prior to the
expiration of the last agreement on 14 November 1982,
the Respondent gave timely notice of withdrawal from
the Labor Relations Advisory Association, which, in fact
was disbanded,4 and of termination of the agreement
The collective-bargaining agreements negotiated by
the Association with the Teamsters were actually com-
posed of two separately negotiated contracts The Cen-
tral States Area Tank Truck Agreement,5 for the 1979 to
1982 period, principally covered union security, seniori-
ty, grievance procedures, and health and welfare and
pension benefits It was negotiated by the Association
and the Tank Truck Negotiating Committee of the Cen-
tral Conference of Teamsters, and was signed by all car-
rier members of the Association within the 13-state area
covered by the Central Conference of Teamsters.6 In ad-
dition to the master agreement, there were separate
"riders" for each of the 13 States in the Central Confer-
ence of Teamsters covering the wage structure in each
State In Ohio, the "Ohio Rider" to the Central States
Area Tank Truck Agreement was negotiated by the As-
sociation and the Ohio Tank Truck Committee of the
Ohio Conference of Teamsters, and was signed by all the
Ohio employer members of the Association. It was the
practice of all local Teamsters unions in Ohio to grant
powers of attorney to the Ohio Tank Truck Committee
to negotiate the Ohio rider '
2 As of July 1983, Respondent also operated a terminal in Van Wert,
Ohio, and after July 1983, it opened a terminal in South Bloomfield,
Ohio Its other terminals were in Nitro, West Virginia, Louisville, Ken-
tucky, and Pittsburgh, Pennsylvania The drivers and mechanics at these
terminals were not represented for collective-bargaining purposes by a
union
3 That agreement was modified in May 1982 by an addendum granting
concessions requested by the Association
° By letter of 22 February 1982, Respondent notified the Labor Rela-
tions Advisory Association of its withdrawal and resignation from the
Association, effective 14 days from the date of the letter The Respond-
ent also withdrew from the multiemployer bargaining unit and stated it
would negotiate separately for collective- bargaining agreements covering
its employees currently covered by the Central States Area Tank Truck
Agreement By letter of the same date, Respondent notified the Central
Conference of Teamsters of its withdrawal from the multiemployer bar-
gaining unit , and its intent to bargaining separately with the local unions
representing Respondent's employees covered by the Central States Area
Tank Truck Agreement
5 Also referred to as the "Central Conference of Teamsters Tank
Truck Agreement" or the "Master Agreement "
B Including , among other States, Ohio, West Virginia, and Kentucky
° The Central States Area Tank Truck Agreement was negotiated on
behalf of the local Teamsters unions under a similar arrangement
111
In a series of letters, dated between 6 and 30 August
1982, Local Unions 159, 637, 413, and 114, individually
notified the Respondent of their desire to negotiate
changes or revisions in the Central States Area Tank
Truck Agreement and all local addenda or riders for the
contract period beginning 15 November 1982 8 In their
letters, the local unions asked the Respondent to notify
them and the Central Conference if it did not intend to
be represented in the negotiations by an employer asso-
ciation and wanted individual notice of the time and
place of future negotiating meetings
By letter of September 1, 1982, the Central Conference
of Teamsters notified all employers signatory to the Cen-
tral States Area Tank Truck Agreement that the Union
was invoking article 51 of the agreement, and quoted the
language of section 51 2, providing that where no cancel-
lation or termination notice is served, and the parties
desire to continue the agreement, but also desire to nego-
tiate changes or revisions, either party may serve notice
on the other 60 days prior to 14 November 1982
In response, by letter of 9 September 1982, signed by
its president, J. Robert Ford, addressed to George
Vitale, chairman, Central Conference of Teamsters,9 Re-
spondent noted its earlier withdrawal from all multiem-
ployer bargaining units (see fn. 4, above), and its intent
to conduct bargaining on agreements covering Ford
Brothers employees on a "terminal-by-terminal basis
Respondent also pointed out that "Federal law obligates
both the union and the employer to meet and negotiate
at mutually convenient times and places " Respondent
than urged that it be consulted before meetings were set
up.
By separate letters, dated 21 October 1982, sent to
each of the local unions, J Robert Ford referred to his
letter of 9 September 1982, noted that nothing had been
heard from the representatives of the local unions, and
advised that he had prepared a written proposal and
would like to meet and discuss it as soon as possible
By letter of 25 October 1982, addressed to "All Em-
ployers covered by the Central States Area Tank Truck
Agreement," George Vitale, union chairman, Tank
Truck Committee, Central Conference of Teamsters, ad-
vised that under the International Union's constitution,
local unions are required to negotiate "solely and exclu-
sively through the Committees established by the Central
Conferenc of Teamsters " He stated that "Local Unions
have no authority to meet and negotiate a renewal of the
Tank Truck Agreement." The letter went on to state
that employers who are not members of the multiem-
ployer unit "are entitled to bargain as an individual, but
only with one of the committees, which are designated
as the representative of the Local Union with which you
have a contract." Vitale urged the employers to contact
him concerning questions or inquiries.
Negotiations to reach a new Central States Area Tank
Truck Agreement began on 28 October 1982, in Rose-
mont, Illinois It was stipulated by the parties to this pro-
8 Local Unions 637 and 114 also notified the Federal Mediation and
Conciliation Service
9 Copies were mailed to the Federal Mediation and Conciliation Serv-
ice, and each of the four local unions involved
112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ceeding that a tentative agreement was reached, by 1 De-
cember 1982 No representative of Respondent partici-
pated in these negotiations
Negotiations to reach a new Ohio rider began in Co-
lumbus, Ohio, on 1-November 1982 Representatives of 8
to 10 carriers attended, including JI Robert Ford, Re-
spondent's president The local Teamsters unions in Ohio
were represented by the Ohio Tank Truck Committee of
the Ohio Conference of Teamsters, under the chairman-
ship of Russell Albright 10
Albright testified that his negotiating instructions from
the Central Conference of Teamsters were that all tank
truck carriers in Ohio had to become parties to the new
Central States Area Tank Truck Agreement and that it
was his goal to negotiate a single Ohio rider for all Ohio
carriers Each carrier submitted its proposal individually,
and each proposal was tabled until all the carriers, in-
cluding the Respondent, had been heard from The
Union rejected all the proposals It was agreed that the
carriers would submit proposals in writing by late No-
vember, and the meeting was adjourned.1'
The carriers subsequently submitted a joint proposal,
which Russell Albright acknowledged receiving on or
about 24 November 1982 The carriers and the union ne-
gotiating committee met again on 7 December 1982 and
after discussion of the carriers' joint proposal and coun-
terproposals by the Teamsters Union and the carriers, an
agreement was reached As stipulated by the parties to
this proceeding.
Negotiations continued in Ohio, through Decem-
ber 7, 1982, at which time the former association
members, including Respondent, all offered the
unions a common final offer as set forth in General
Counsel Exhibit 4(b) and Respondent Exhibit 16,
which the unions agreed to submit to the member-
ship for a vote
The union asked each of the employers, individ-
ually, including Robert J Ford-I believe that
should be J Robert Ford, if I'm not mistaken-
whether they agreed to be bound by the final offer
And all replied positively
The unions then made arrangements for its mem-
bers to vote on whether to ratify the tentative Cen-
tral States and Ohio agreements in January of 1983.
Respondent also agreed to be bound by the proposed
Central States Area Tank Truck Agreement. 12
is Russell Albright acknowledged that he opened the meeting on 1
November 1982, and stated , "All local unions will not have separate con-
tract negotiations with the employers," as reported in the minutes of the
meeting
11 Under a covering letter, dated 9 November 1982, J Robert Ford
sent Respondent's written contract proposals covering Respondent's four
Ohio terminals, to "Rusty" (Russell) Albright The proposals provided
that the drivers would receive a percentage of gross revenue for trips in
excess of a specified radius from the terminals and varying hourly rates
for hourly work
12 In a telegram addressed to Russell Albright, dated 12 January 1983,
Respondent's president, J Robert Ford, stated "This is to advise that
Ford Brothers Inc is in agreement with the Central States Area Tank
Truck Agreement "
The tentative Ohio rider which the Ohio Conference
agreed to submit to the Ohio Teamsters membership for
a ratification vote provided for a wage rate of $11 54 per
hour, 28.5 cents per mile single and 50 cents per mile for
two-man operation.13 Under the expired Ohio rider, the
wage rate for the last year of the contract was $10 78 per
hour, and the mileage rate ranged from 25 925 to 27 325
cents per mile, depending on the type of vehicle, with a
single-man mileage rate of 14.055 cents and a two-man
rate of 28.11 cents. Under the addendum to the Ohio
rider of May 9, 1982, the wage rate was increased to
$11 54 per hour, and the mileage rates to 28.5 cents for a
single unit and 30 cents for a two-man operation 14
In Ohio, the proposed Central States Area Tank Truck
Agreement and the proposed Ohio rider were presented
together as "a package" to the local unions for ratifica-
tion in January 1982, and the Ohio union membership
voted 4 to 1 against the combined proposal Central
States Conference-wide, the proposed Central States
Area Tank Truck Agreement was approved by the union
membership by a margin of more than 2 to 1.15
The next meeting between the Ohio Conference of
Teamsters and the Ohio carriers, including the Respond-
ent,16 took place during the latter part of February 1983
in Columbus, Ohio 17 Russell Albright, speaking for the
Ohio Conference of Teamsters, informed the carriers of
the results of the union ratification vote, and took the
position that the carriers were bound by the Central
States Area Tank Truck Agreement, which, he said, had
been ratified only the Ohio rider having been rejected.
The carriers, including Respondent, disagreed, taking the
position that the Ohio rider had been carried by the Cen-
tral Conference-wide ratification of the Central States
Area Tank Truck Agreement, and that unless both had
carried, there was no contract at all, in which event, the
carriers said, they stood by their offer of 7 December
1982
There appear to have been no changes in position by
the parties by the time of their next meeting on 22
March 1983 The carriers, including the Respondent,
who again was represented by its president, J Robert
Ford, maintained that because the Central States Area
Tank Truck Agreement had been carried, the Ohio rider
had been carried with it. The Ohio Conference of Team-
sters, through its spokesman, Russell Albright, took the
position that the Ohio rider had been rejected and that
only the Central States Area Tank Truck Agreement had
been ratified Alternative proposals put on the table by
the Union were rejected by the carriers At the close of
11 The carrier's proposal was entitled "Employers' Proposal-Ohio
Tank Haul for the Term November 15, 1982 to November 14, 1985 "
There appears to be no question but that the proposal was intended to
replace the Ohio rider which expired on 14 November 1982, and, if ap-
proved by the Teamsters membership, would have been the "Ohio
Rider" for the 1982-1985 period
14 There were, of course, other provisions to all the agreements and
proposals mentioned, however, a comparison of the other provisions is
not pertinent here
is There was no vote on the Ohio rider outside the State of Ohio
16 Again represented by its president, J Robert Ford
17 According to Russell Albright, chairman of the Ohio Tank Truck
Committee of the Ohio Conference of Teamsters , the meeting took place
on 22 February 1983
FORD BROS
the meeting, an attorney named Lou Minelo, who had
formerly represented the defunct Association and was
there with the carriers, submitted a written statement as-
serting that there was an agreement in effect, and, in any
event, that the carriers' offer of 7 December 1982 was
their final offer.18
By his letter of 1 April 1983 to Russell Albright, Re-
spondent's president, J. Robert Ford, noticed the Ohio
Conference of Teamsters that Respondent was with-
drawing all proposals before the Union, including those
of November and December 1982 and March 1983 is In
the letter, Ford asked for "an immediate session to dis-
cuss issues," and stated that "[i]f we have not heard [in
14 days] we will submit our proposal to you " Ford
claimed in the letter that his company had lost money in
1981 and 1982, and continued to lose money in' 1983, a
situation, said Ford, which could not continue and de-
manded "immediate resolution "
In his letter in response, dated 4 April 1983, Russell
Albright stated that he was at a loss as to what Ford's
letter was actually saying and at a loss to understand
how Ford Brothers could withdraw from the offer of 23
March 1983.20 Albright went on to say, however, that at
Ford's request, "the Ohio Conference of Teamsters Tank
Truck Division will meet with the respective locals at a
mutually agreed time as we are required to do, and dis-
cuss the intent of your letter April 1, 1983 "21 At the
end of the letter Albright said, "Please contact this office
concerning some mutually agreeable dates "
By letter of 2 June 1983, J. Robert Ford forwarded to
Russell Albright Respondent's "proposal for wage, bene-
fit and work conditions, which we desire to use as a base
for negotiations of a new contract "22 Ford suggested an
early June meeting in Columbus, Ohio, and repeated his
earlier assertion that Ford Brothers was experiencing fi-
nancial "hardships," stating that "we must do everything
in our power to become more competitive." A meeting
between Ford and Albright was arranged for 23 June
1983, in Canton, Ohio.23
18 According to Russell Albright, J Robert Ford did not disassociate
himself with the written statement J Robert Ford testified that it was
after the March meeting that he decided to withdraw from the 7 Decem-
ber 1982 proposals
19 Respondent sent the same letter to George Vitale, chairman of the
Central Conference of Teamsters, and to the presidents of Local Team-
sters Unions 413, 159, 637, 114
20 From the text of the letter it appears that Albright was referring to
the written statement submitted on behalf of the carriers at the meeting
of 23 March 1983 (or 22 March) by Attorney Minelo
21 There is nothing in the record to indicate that the meeting with the
local unions ever took place as promised by Albright in his letter of 4
April 1983 According to Albright as a result of the exchange of corre-
spondence, he received a proposal from J Robert Ford in early June
22 Differing markedly from the carriers' 7 December 1982 proposal,
and the expired Ohio rider, Respondent's 2 June 1983 proposal provided
that drivers would be paid a percentage of gross revenue for trips over
25 miles, with any hourly wages variously paid at the rate of $9 or $10
per hour
23 In a letter to Albright dated 6 June 1983, Ford proposed a meeting
on 16 June in Columbus or 23 June in Canton In a letter to Albright,
dated 14 June 1983, Ford confirmed a telephone conversation on 6 June
arranging a meeting in Canton on 23 June 1983, and stated that Ford
Brothers , Inc , "will only bargain individually ," and "that we desire an
early resolution to the bargaining process "
113
Attending the meeting of 23 June 1983, in addition to
Ford and Albright, were Roger Hunt, president of Local
Union 159, two officials of Local Union 413, and James
W Muldoon, an attorney representing Ford Brothers,
Inc J Robert Ford provided copies of Respondent's fi-
nancial statements for 1981, 1982, and the first quarter of
1983, Respondent's proposed contracts for drivers and
mechanics, and a list of cost-saving measures put into
effect by Ford Brothers Albright and Ford discussed the
financial hardships which Respondent and other carriers
were experiencing, but did not discuss the proposal
which Respondent had made.24 Albright testified that he
categorically rejected the percentage proposal concept,
but that he did offer to consider allowing Respondent to
haul freight originating in Kentucky under the terms of
the Kentucky rider, which provided for a lower rate of
pay for, drivers than they would receive under the Ohio
rider. ?s3Albright also testified that it was his position, al-
though he did not recall telling Ford, that Ford's only
option was to sign the proposed Central States Area
Tank Truck Agreement and the Ohio rider, before
anyone would talk to him about an addendum, such as
the Kentucky rider 26 The meeting terminated inconclu-
sively, with Ford agreeing to consider the offer of the
Kentucky rider advanced by Albright, and promising to
personally deliver his response to Albright in Canton,
Ohio, the next day
J Robert Ford's response was in the form of a letter,
which he delivered in person to Russell Albright on the
date of the letter, 24 June 1983 Ford stated "we will
accept your proposal of $10.00 per hour and $ 25 per
mile for 3 years if it applies to all our traffic not only at
our primary terminals, but also at Cincinnati, Marietta,
and Columbus, Ohio." Ford stated that he "also
assume[d] this includes a freeze on Health and Welfare
benefits for the duration of the contract " Ford conclud-
ed the letter by stating, "As I explained initially with our
financial condition, we do not have much time Please let
us know by July 1, 1983 "27 Albright Russell Albright
24 According to J Robert Ford, he hoped to show that Respondent
was experiencing severe financial problems , and he pointed out that Re-
spondent, which operated primarily along the Ohio River in competition
with nonunion carriers, could not be compared to the large union carriers
operating in northern Ohio Ford testified that Russell Albright agreed
that Respondent was in financial trouble and something had to be done
immediately, but that he looked only at the first page of Respondent's
proposal , and refused to discuss it, stating he would not consider any
type of percentage agreement
25 According to Russell Albright, he made it clear that freight origi-
nating in Ohio would have to be hauled under the terms of the Ohio
rider , and that he was not going to reduce health and welfare , and pen-
sion benefits, as proposed by Respondent
26 A letter dated 16 December 1982, addressed to "All local Unions
signatory to the Central States Area Tank Truck Agreement," signed by
George Vitale, chairman, Union Negotiating Committee, Central Confer-
ence of Teamsters , states , " we expect all Employers to sign the
Master Agreement and the appropriate Rider before any individual ad-
dendum is negotiated " Russell Albright testified he continued to operate
under those instructions throughout 1983
27 J Robert Ford testified that he knew a vote had already been
scheduled for the Coal Grove drivers on 29 June and that he told Al-
bright that Respondent needed a vote by the employees at the other ter-
minals by the following weekend, otherwise, he "intended to implement
that proposal " Ford said that he would contact Roger Hunt (president of
Continued
114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreed that Ford dropped off the letter at Albright's
office on 24 June 28
As enclosure to a covering letter addressed to Roger
Hunt, president of Teamsters Local Union 159 (referred
to as "155" in the letter) James W Muldoon, Respond-
ent's attorney, forwarded to Hunt copies of Ford's 24
June letter to Russell Albright and the accompanying
proposal. Muldoon's cover letter to Hunt states
Pursuant to instructions from Bob Ford, I am en-
closing his correspondence of June 24, 1983, to R.
Albright Please note the company's deadline for
consideration of this last proposal is July 1, 1983
Roger Hunt testified that he received the correspond-
ence on 29 June.
Russell Albright testified that he did not respond to
Ford's 24 June 1983 letter by 1 July or afterward He
said that he did not communicate Ford's proposal to any
officials of the local unions concerned, other than those
officials who attended the 23 June 1983 meeting Al-
bright said he did not recall any further meetings with
Ford after those on 23 and 24 June
In his next letter to Russell Albright, dated 2 July
1983, J. Robert Ford stated that the Union's rejection of
Respondent's "numerous proposals," and its lack of
action with regard to Respondent's 24 June proposal,
"clearly indicates an impasse has been reached in our ne-
gotiations." Stating that Respondent could not continue
to operate as it had been, Ford said that "effective July
3, 1983, Ford Brothers will commence operating under
the last proposal made to you, a combined summary in-
cluding the 24 June 1983 modifications "29 Enclosed
with the letter were three documents, one of which was
entitled "Tank Truck Work Agreement." It provided
that drivers would be paid 25 cents per mile for trips
Local Union 159) and ask him to put it to a vote Ford also testified that
in response to Albright's question of "how long can you wait," he re-
plied, "I cannot wait any longer "
28 Albright testified that he did not recall whether he talked to Ford
on 24 June 1983
29 Summarizing the course of negotiations, Ford stated in the first part
of the letter
As you are aware, Ford Brothers, Inc has attempted to negotiate
a contract with you and your committee on behalf of Ford Brothers,
Inc employees since November 1982 All proposals made by Ford
Brothers, Inc , since the expiration of the prior contract have been
rejected
Further on June 2, 1983 I mailed to you and the various local [sic]
involved our latest contract proposal I met with you on June 23,
1983, to discuss the June 2, 1983 proposal at which meeting the pro-
posal was rejected in its entirety On June 24, 1983 I met with you
and presented a modification to the June 2, 1983 proposal, a copy of
which is enclosed It was my understanding that from our meeting of
June 23, with yourself, Roger Hunt and other Teamster officials, and
our June 24 meeting with yourself that our June 24 proposal was to
be submitted to meeting of the Coal Grove employees on June 25
and the following week to our Columbus, Marietta and Cincinnati
terminal drivers It is my understanding that although a meeting oc-
curred on June 25, 1983, between Roger Hunt and the Coal Grove
employees, no proposal was submitted for a vote It is my further
understanding a meeting was to be called at our other terminals the
work week June 27 through July 2 On June 28, 1983, I conferred
with Roger Hunt again reiterating our desire to have our latest pro-
posal submitted to a vote of our employees and reminded him of the
July 1, 1983, date, which we feel is critical to the company for multi-
ple economic reasons
beyond a 25-mile radius of the terminal, and that hourly
wages would be paid at the rate of $10 50 per hour It
also provided that the employer would establish a health
and welfare insurance program, to be jointly adminis-
tered by the employer and the union, to which the em-
ployer would make a maximum contribution of $45
weekly, and, that the Respondent would pay contribu-
tions into the Union's pension fund, the maximum em-
ployee contribution being $40 weekly Other provisions
were concerned with matters such as vacations and
grievances Also enclosed with the letter were "Employ-
ee Rules and Regulations," and a document entitled
"Mechanic Addendum to Central States Area Tank
Truck Agreement Ford Brothers, Inc." The latter cov-
ered wages and working conditions for Respondent's
working foremen and class A mechanics
According to J Robert Ford's testimony, he imple-
mented the Company's proposal on 3 July 1983, as he in-
dicated he would in his letter to Albright of 2 July 1983,
at all four Ford Brothers' Ohio terminals.30 He stated
that he heard nothing from the Union concerning the im-
plementation of the proposal until 18 July 1983.31
On 18 July 1983, members of Local Union 159 em-
ployed at Respondent's Coal Grove, Ohio terminal went
out on strike, and the following day, 19 July 1983, mem-
bers of Local Union 637 employed at Respondent's Mari-
etta, Ohio terminal also went out on strike. Respondent
notified Russell Albright, and Local Unions 159 and 637
of the strike action, asking whether the strikes were
sanctioned or authorized, and stating that it intended to
begin enforcing certain of the employee rules and regula-
tions which accompanied its proposal of 2 July 1983,
which it said were then in effect 32 J Robert Ford, Re-
spondent's president, testified that the Marietta and Coal
Grove drivers were sent letters on 19 July 1983 advising
them that the Respondent would have to hire permanent
replacement workers, and they should call the dispatcher
if they were available for and desired immediate work
By telegram on 19 July 1983, Local Unions 637 and
159 notified Respondent that strikes in progress at the
Marietta and Coal Grove terminals were unauthorized
and the people involved had been instructed to return to
work Picket lines remained in place at both terminals,
30 Roger Hunt, president of Local Union 159, testified that on 8 July
1983, he filed a grievance over Respondent's unilateral implementation of
its proposal, but the grievance was never dealt with in accordance with
the grievance procedures set up by the expired contract because Re-
spondent refused to attend grievance meetings called for July and
August
31 In a letter, dated 8 July 1983, J Robert Ford notified Russell Al-
bright that Respondent would not attend a grievance meeting which the
Union had scheduled for 12 July 1983, and that the Respondent no
longer considered itself bound by the grievance procedures established in
the expired contract In reply, Russell Albright stated in a letter to
J Robert Ford, dated 15 July 1983, that Respondent had concurred with
the tentative Central States Tank Truck Agreement, and it was bound by
the "grievance machinery" which the tentative agreement established By
letter of 22 July 1983, J Robert Ford expressed his disagreement and
stated the Respondent would not be present "at the next regularly sched-
uled Ohio Joint State Tank Truck meeting in August 1983 "
32 The rules and regulations referred to by Respondent provided for
the discharge of employees who accumulate three or more offenses of
failing to report for work when called, failure to complete runs, and ab-
sence from work without notice
FORD BROS
however, and the strikes continued 33 There were no
strikes from 18 July to 17 October at the Columbus or
Cincinnati, Ohio terminals
According to his testimony, J Robert Ford was at
home the night of 18 July when he learned that there
was a strike at the Coal Grove terminal, and that there
were pickets in front of the gates Ford stated that he ob-
served the pickets daily during the following week, and
saw that they were carrying signs which said, "No
Contract/No Work." Ford testified that during most of
the week there was "merely shouting, some threats,
nothing material "
Explaining that it was necessary for the Company's
survival,34 and to maintain what business the Respond-
ent could, J. Robert Ford testified that Respondent
closed its Coal Grove and Marietta35 terminals in July
and the Company's equipment was moved to other ter-
minals . Although, as he acknowledged, there were no
pickets at Coal Grove after 26 July, Ford testified that
he believed the strike continued throughout August and
September
According to Ford, the Company 's equipment was re-
moved from the Marietta terminal on 21 July to a loca-
tion in Parkersburg, West Virginia Respondent's at-
tempts to sell the closed Marietta terminal were unsuc-
cessful, said Ford, but it did not reopen the Marietta ter-
minal until December 1983, at which time the Parkers-
burg terminal was closed.
The Coal Grove terminal was closed as a trucking op-
eration on 18 July Most of the equipment was moved to
Respondent's terminal in Nitro, West Virginia,36 howev-
er, some of the equipment was moved to either Respond-
ent's facility in South Bloomfield, Ohio, or to its Colum-
bus, Ohio terminal The Coal Grove terminal is also the
home office of the Company and the location of a main-
tenance facility, and Respondent continued to conduct its
management operations from there. Respondent resumed
some trucking operations from Coal Grove in the spring
of 1984, but most of the equipment not returned to Coal
Grove remains at the Nitro, West Virginia terminal, with
some equipment still located at Respondent's Marietta
and South Bloomfield, Ohio terminals
Two of Respondent's drivers37 employed at the Cin-
cinnati terminal testified that they saw Ford Brothers
equipment being operated by three to four new drivers
in midsummer 1983, and that they were told the new
drivers, one of whom was named "Encinas," were paid
33 Roger Hunt , president of Local Union 159, testified that he went to
Respondent ' s Coal Grove terminal on 18 July where he tried to persuade
the pickets to take down their signs and return to work Although he left
the terminal that afternoon believing he had succeeded, he learned the
next day that the strikers had not returned to work Hunt stated that on
19 July he sent telegrams to each of the employees and to Bob Ford
saying that the local union had not authorized the strike , and that he had
gone to the strike scene and encouraged the employees to return to work
34 According to J Robert Ford, Respondent was losing $50,000 to
$60,000 in revenue , so something had to be done
35 Ford testified that the Company could not operate out of the Mari-
etta terminal because of the pickets , and because Ashland Oil , one of Re-
spondent 's large accounts , would not permit loading at their facility
which was close to the Marietta terminal
36 According to J Robert Ford, Respondent opened the Nitro, West
Virginia terminal in 1981
37 William D Conetet and Bobby Ray Acree
115
less than other Ford Brothers drivers.38 One of Re-
spondent's Columbus drivers39 testified that he regularly
saw non-Ford Brothers drivers fueling their tractors and
changing trailers at the Columbus terminal in January
and February 1983 This driver testified that although he
had formerly hauled loads of tar and product to and
from Jetcoat, one of Respondent's customers in the Co-
lumbus area, frequently in 1982, he seldom hauled for
Jetcoat in 1983 In September 1983, he saw a driver in an
unmarked tractor haul away from the Columbus terminal
a Ford Brothers trailer used to haul tar to Jetcoat The
Columbus terminal dispatcher, Herb Walbourne, told
him that Gregory's drivers were hauling coal tar from
Ironton , Ohio, to Jetcoat
J Robert Ford testified that F & B Transport, Inc ,
an Ohio corporation he and his wife own '40 which was
formed in late 1981 or early 1982 and licensed to operate
in 1983, leased drivers and tractors to Ford Brothers and,
operating under authority granted to Ford Brothers by
the Interstate Commerce Commission (ICC) and the
Ohio Public Utilities Commission, began hauling freight
out of Ford Brothers' Cincinnati terminal in the summer
of 1983 F & B drivers, said J. Robert Ford, were paid
at the rate of 20 percent of gross revenue for runs dis-
patched from the Cincinnati terminal During the period
from July to September 1983, F & B employed three to
four drivers in Cincinnati Ford denied that he intended
to replace Ford Brother drivers in Cincinnati with
F & B drivers through attrition F & B Transport has
not operated in Cincinnati since September 1983
Ford testified there was also F & B activity in the
Columbus area in 1983, but the F & B drivers there
were referred to as Gregory Brothers drivers 41 The
parties stipulated that between March and August 1983
F & B did haul cargoes for Jetcoat'42 a customer of
Ford Brothers in the Columbus area serviced from Re-
spondent's Columbus terminal J Robert Ford testified
that F & B had neither equipment nor drivers in Colum-
bus, only the operating authority and permits Gregory
owned the trucks and trailers, which he leased, with
drivers, to F & B F & B provided the insurance and
3s The parties stipulated that "Encmas" was an F & B driver
"Herbert S Shrum
40 J Robert Ford is president of the corporation, his wife is vice presi-
dent and secretary
41 According to J Robert Ford, he had become involved with Greg-
ory, who had a farm in South Bloomfield, Ohio, where trucks were kept,
including at times Ford Brothers trucks on a "very" temporary basis, in
1983, concerning the hauling of railroad ties, for which F & B, but not
Ford Brothers, had proper authority
42 According to J Robert Ford he involved F & B in the Jetcoat
work when the customer asked if Respondent could handle a new run
hauling clay As Ford Brothers did not have the needed type of trailer,
and Gregory did, Ford said he arranged for Gregory to handle the busi-
ness under F & B Subsequently , he expanded F & B's business with
Jetcoat to include hauling tar from Ironton , Ohio, and tar and other
products from Detroit, Michigan, while Ford Brothers continued to
handle the hauling of tar from Cleveland, Ohio Ford acknowledged that
in 1982, it was union drivers employed by Ford Brothers at the Colum-
bus terminal who hauled tar from Ironton to Jetcoat Ford testified that
the rates on Jetcoat's business were low, and that he was getting rid of
the less profitable Jetcoat business in order to free Ford Brothers ' equip-
ment to do more profitable work Ford denied that there was a labor sav-
ings involved, stating that there was other more attractive business that
Ford Brothers could handle
116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
did the billing under F & B's authority Gregory was
paid a percentage of gross revenue Ford maintained that
F & B had no paid employees , other than he and his
wife. He said that F & B's gross revenue for 1983 was
$125,000, while Ford Brothers ' was in excess of $6 5 mil-
lion. Ford testified that while Ford Brothers drivers
were laid off from time to time at the Columbus termi-
nal,43 to his knowledge Gregory drivers used only
Gregory's equipment , and never Ford Brothers equip-
ment, to perform F & B's work in the 1983 timeframe
Ford acknowledged that he did not discuss F & B's ac-
tivities in either Columbus or Cincinnati with the Team-
sters union locals
The parties stipulated to the following traffic and reve-
nue figures at the terminals shown
Ford Brothers
Month (1983) Loads Carried Total Billings
F & B Transport
Loads Carried Total Billings
Cincinnati Terminal
June 333 $ 73,024 33 None
July 320 74,648 66 None
August 383 115,649 18 $ 2,533 19
Columbus Terminal44
June 321 $80,516 55 23 $18,048 41
July 284 74,677 17 17 12,536 07
August 324 90,136 93 27 18,724 84
Coal Grove Terminal
June 20-July 25 - 543 $150,567 63
July 26-August 26 28 19,918 52
Nitro, West Virginia Terminal45
June 20-July 25 221 $125,316 46
July 26-August 26 194 84,931 85
Marietta Terminal
June 20-July 25 377 $60,107 62
July 26-August 26 None
Parkersburg, West Virginia Terminal
June 20-July 25
July 26-August 26
None
378 $52,969 94
June 20-July 25
July 26-August 26
None
378 $52,969 94
Another business enterprise owned by J Robert Ford
and his wife , which became an issue in this case , is Ford
Maintenance and Cleaning Corporation , which was in-
corporated in Ohio on 15 September 1983, and started in
business at about the same time Ford Maintenance and
Cleaning is engaged in the maintenance and repair of
trucks, and the cleaning of the interiors and exteriors of
tank trucks . It occupies , under a lease from the Respond-
ent, the same facilities in Respondent 's Coal Grove ter-
minal where Respondent's mechanics were employed
prior to the strike which began on 18 July 1983, and uses
43 The parties stipulated that one employee at Respondent 's Columbus
terminal , named John McIntire , was laid off for 8 weeks in April through
early June 1983, and another employee , named Paul Carpenter , was laid
off for 2 weeks, because of lack of work No Ford Brothers employees at
some of the same equipment Ford Maintenance and
Cleaning Corporation 's employees , who, as of the time
of the trial , were all former Ford Brothers employees,
work on Ford Brothers vehicles, and on vehicles belong-
ing to other companies, including Ashland Oil and
Standard Oil of Ohio, both of which contract with Ford
Maintenance and Cleaning for maintenance and cleaning
services 46
the Columbus terminal were laid off from 4 June through 30 August
1983
44 F & B drivers working in the Columbus area from January through
May 1983 carried from 5 to 10 loads per month
45 Respondent did not operate a terminal in Kenova, West Virginia, at
any relevant time
46 According to J Robert Ford , after the strike in July, Respondent
removed its trucks from its Coal Grove terminal , leaving an expensive
cleaning facility unused To make use of the facility , and because there
Continued
FORD BROS
It was stipulated by Respondent that at the time Ford
Maintenance and Cleaning Corporation became oper-
ational in September 1983, it hired some employees who
had previously been Ford Brothers employees and had
gone on strike in July
J Robert Ford testified that the basic rates for full-
fledged mechanics employed by Ford Maintenance and
Cleaning are $8.50 to $10 per hour 47 He acknowledged
that in negotiations with the Union prior to the strike, he
had not proposed mechanic rates below $10.50 per hour
He stated that as of the date of trial, there was no pen-
sion plan for Ford Maintenance and Cleaning's mechan-
ics, but that they did receive noncontributory health in-
surance.
The first contact between anyone representing the
Teamsters Union and J Robert Ford, as representative
of the Respondent, after the strikes began at Respond-
ent's Coal Grove and Marietta terminals on 18 and 19
July, respectively, took place on 21 July, when Roger
Hunt, president of Teamsters Local Union 159, tele-
phoned Ford and requested a meeting at Coal Grove A
meeting was scheduled on 25 July.48
Bob Moody, a representative of the Ohio Conference
of Teamsters, testified that Ohio State Chairman Rusty
Albright requested his assistance in negotiations with
Ford Brothers in July 1983 He stated that he learned of
the work stoppage in Coal Grove from Hunt, and that
he asked Hunt to set up a meeting with J Robert Ford,
the president of Ford Brothers. According to Moody,
accompanied by Hunt, he went to Respondent's Coal
Grove terminal, where, after talking to the striking em-
ployees on the picket line, he and Hunt met in Respond-
ent's office with J Robert Ford, and someone else
whose name Moody did not remember Accompanying
Moody and Hunt were two union stewards, Bill Sparks
and Homer Dickerson Moody testified that he asked
Ford to put the men back to work49 and, at Ford's re-
quest, went to another room where the two men talked
without anyone else being present According to Moody,
they talked about the Company's financial problems, but
Ford declined to put the men back to work, stating that
he was acting on the advice of his attorneys. With Hunt
and the two stewards present, Moody and Ford sched-
uled another meeting to take place 2 days later in Co-
lumbus, Ohio S0 As he left the terminal, said Moody, he
told the employees to withdraw their pickets, go home,
and call in reporting for work To his knowledge, said
Moody, that is what they did
Moody testified that, as scheduled, he and Hunt met
with Ford and his wife a day or two later (on 27 July) in
Columbus, at the Quality Inn, where they discussed Re-
was a great demand in the tank truck industry for interior cleaning by all
companies which terminate in the area , Ford said he decided to open the
cleaning and maintenance facility to the public He acknowledged that it
would have been possible in September 1983 for Ford Brothers to do the
work, but said it would have been difficult
4'! The same rates were paid in September 1983
49 Ford testified that he was not contracted by anyone from Local
Union 637 (Marietta terminal) that week
49 Moody testified that he did not attach any conditions to his request
that the men be put back to work
so Hunt recalled that J Robert Ford said he would not put the men
back to work until he had signed a contract
117
spondent's financial difficulties and problems with dis-
patch procedures and work rules Moody said that he ex-
plained to Ford before the meeting broke up that he did
not want to change the health and welfare and pension
benefits which the employees had been getting It was
agreed that Ford and Hunt would meet with the union
stewards in Coal Grove on Friday, and try to work out
the dispatch procedures. According to Moody, Ford said
that if an agreement was worked out at the local level on
work rules and dispatch procedures, he would come
back to Columbus the following week and sign the Ohio
rider along with the addendum to be worked out in Coal
Grove 51 Moody said hourly wages were discussed, and
he offered Ford the Kentucky rider "to think about."52
Moody said that when the meeting ended he believed
there would be another meeting on Friday (in Coal
Grove) and another meeting in Columbus on Wednesday
of the following week
According to Roger Hunt, at the meeting held the
next day, 28 July, in Coal Grove, Ford brought up new
matters Hunt testified that Ford wanted different insur-
ance, the pension to stay at the $51 rate and be frozen
for 3 years, central dispatch, and all freight, even out of
Ohio, to be hauled under the Kentucky rider 53 Hunt
said that Ford denied he had agreed to sign the Ohio
rider if an area addendum was approved Hunt testified
that he left the meeting at that point
The following Wednesday (3 August), Ford, his wife,
and his attorney, met with Moody and Hunt in Colum-
bus According to Moody, Hunt reported that no agree-
ment had been reached in Coal Grove, and that Ford
wanted to change everything Moody said that when
Ford's attorney started to put forward another proposal,
he asked the attorney to put it in writing. As related by
Moody, Ford said that he had not agreed the previous
week not to try to change health and welfare and pen-
sion benefits. The meeting ended with Ford and his at-
torney agreeing to send a written proposal 54
Moody stated in his testimony that his discussions with
J Robert Ford in July involved only the need for relief
at Coal Grove, Ford did not raise the need for relief at
any other location Moody said he was aware of the
work stoppage at the Marietta terminal, however, and
that he asked Ford to return the people at both facilities
back to work. Moody stated that when he first met Ford
in July 1983, the Ohio rider had not been ratified by the
5i According to Roger Hunt, Bob Ford agreed to sign the Ohio rider
and the area addendum , after it was negotiated and approved by the
union membership A vote on the Ohio rider had already been scheduled
for 29 July said Hunt, who also stated that Ford made only two sugges-
tions for the area addendum, that anything picked up in Kentucky would
be paid for under the Kentucky rider, and that there be a different type
of dispatch system
sz Moody stated that the Kentucky rider at that time provided for an
hourly wage of $1050 and mileage at the rate of 25 cents per mile, as
compared to the Ohio rider, which provided for an hourly wage of
$11 54 and a mileage rate of 28 5 cents per mile Moody said that the
Ohio rider covered health and welfare and wage structures in Ohio
sa Hunt said there was another demand by Ford , but he did not recall
what it was
64 Moody stated that he did receive another proposal in the mail, but
he had no further contact with Ford because, he said, he learned from
Rusty Albright that charges were being filed and, in any event, the pro-
posal which he received was unacceptable
118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ohio membership, but that it was ratified around 1
August
J. Robert Ford gave a somewhat different account of
what transpired at the series of meetings, beginning with
the one on 25 July At the meeting, according to Ford,
Roger Hunt made it clear that Ford Brothers was part of
the Central States Area Tank Truck Agreement, and
Union Steward Sparks said that the men's benefits had to
be restored to get them back to work. Ford denied that
he said he would not put the men back to work on the
advice of his attorney Ford said that he did not consider
what Moody said to be an offer to return to work, but
only a goal to be accomplished through a negotiated set-
tlement, and that, in any event, no mention was made of
the Marietta terminal or Local Union 637
At the meeting in Columbus on 27 July, according to
Ford, there was no mention made at all of the striking
employees returning to work Moody told Ford that it
would be necessary for him to sign the Central States
Area Tank Truck Agreement and the Ohio rider, then an
informal agreement on various work conditions at Coal
Grove and other sites could be worked out, covering
such matters as wages, dispatch procedures, and delay
time, all of which, Ford said, were problems for Re-
spondent Ford said that he did not agree to execute
either the Central States Agreement or Ohio rider, as
"that would be dumb." The only agreement reached at
the meeting was an agreement to meet again on 28 July
in Coal Grove
As recounted by Ford, at the 28 July meeting there
was discussion of the various issues, but no mention was
made of the striking employees returning to work, nor
was he asked why the men were not back at work Al-
though, Ford said, he thought progress was being made,
Hunt said the Company's proposals were unacceptable,
and Union Steward Sparks made the remark, "You know
that if you don't give us back everything we want we'll
dust have to close you down " Ford said that when he
refused to accede to Hunt's statement that Ford first had
to sign the Central States Agreement and Ohio rider
before anything could be done, Hunt and the union stew-
ards left
At the 3 August meeting at the Quality Inn in Colum-
bus, he was accompanied by his wife, Jenny, and his at-
torney, James Muldoon According to Ford, he refused
again to comply with Moody's demand that he sign the
Central States Agreement and the Ohio rider Ford said
that he told Moody he wanted a separate grievance pro-
cedure for the Respondent55 and an individual contract.
In an effort to find a proposal acceptable to the Union,
Ford said, James Muldoon made handwritten modifica-
tions on a copy of Respondent's 24 June proposal which
it had unilaterally implemented on 3 July 56 Moody re-
" J Robert Ford objected to the grievance procedure under the pre-
vious Central States Area Tank Truck Agreement which allowed griev-
ances against Respondent to be heard by grievance panels whose employ-
er members were not selected by the Respondent , but by the chairman of
the employer group, who could be a competitor
ss The modifications included (1) Increasing the mileage rate to be
paid two-man driver teams from 25 cents per mile to 27 5 cents per mile,
(2) providing for a 1 -hour guarantee on loading and unloading time
(second hour to be free, the hourly rate to begin with the third hour), (3)
adding three paid holidays, (4) changing the vacation provision so that it
fused to read the modified proposal, asking, instead, that
it be typed and sent to his office According to Ford,
that was done,57 but he did not receive any response
from Moody or meet with him again
Ford testified that the picket line was down at Coal
Grove on the morning of 26 July, and that picketing ac-
tivity stopped sometime in July 1983 at Marietta He ac-
knowledged that some employees called the Company
on 25 or 26 July inquiring about work, but he denied re-
ceiving any of those calls himself. According to Ford,
the employees who called in were told there was no
work available at Coal Grove Ford said he did not con-
sider the calls to be sincere, because he had dust met with
Bob Moody, Roger Hunt, and the union stewards, who
had indicated that they did not consider the terms which
the Company had on the table to be acceptable. Ford
said he did not receive any written requests to return to
work, nor was he contacted at all by union officials at
the Marietta terminal about the Marietta employees re-
turning to work. According to Ford, he was not aware
of any employee who contacted the Company between
26 July and 3 August seeking to return to work, and that
all the striking employees who contacted the Company
after 2 August requesting reinstatement were reinstated
The drivers who returned to work in August and Sep-
tember were paid whatever rate was in effect at the ter-
minal to which they were assigned, according to Ford 58
As part of its case, General Counsel presented the tes-
timony of a number of Ford Brothers drivers and me-
chanics concerning their experience when seeking to
return to work in July and August 1983.
Ronald LeMaster, a Ford Brothers mechanic at the
Coal Grove terminal until the July work stoppage, stated
that he participated on the picket line until approximate-
ly 26 July 1983, when union officials told the pickets "to
take our picket line down and go sign up for unemploy-
ment " After that, LeMaster said, he called the Coal
Grove terminal almost daily, and spoke to his former su-
pervisor, Keith Lewis, saying that he was ready to
goback to work and asking if work was available He
said each time he was told there was no work available,
until approximately 21 September 1983, when he was of-
fered and accepted 2 days work per week at Coal
Grove 59 He was told by Lewis that he would be paid
would be the same as art 26 of the 1979 Central States Area Tank Truck
Agreement, (5) adding a provision which would preclude an employee
from being forced to transfer to another terminal , ( 6) adding a provision
creating a two-tier pay system, with newly hired employees being paid
less than employees on the seniority list as of 1 July 1983, and, (7) adding
a provision obligating the Company to make every effort to recall em-
ployees as soon as work becomes available
57 The covering letter, dated August 5, 1983, signed by J Robert
Ford, states that the proposal is withdrawn if not ratified by 12 01 am
August 22, 1983
58 Ford said that the Coal Grove and Marietta terminals had being
closed Former Coal Grove and Marietta drivers assigned to another
Ohio terminal were paid at the rate of $10 50 per hour and 25 cents per
mile Drivers assigned to the Nitro, West Virgina terminal were paid 20
percent of revenue, the same as other Nitro drivers, and if they drove
their own truck, 65 percent of revenue
59 LeMaster continued to work for Ford Maintenance and Cleaning
Corporation until 21 October 1983, when another strike (said by the Gen-
eral Counsel to be unrelated to the issues in this case) began
FORD BROS
either $8 or $8 50 per hour, and that he would work for
a new company, called Ford Maintenance and Cleaning
Corporation, the principal stockholder of which was Bob
Ford, president of Ford Brothers He was told that
would not work exclusively on Ford Brothers equipment
anymore, and that there would be no benefits, no insur-
ance, and that it was to be a nonunion company. LeMas-
ter testified that he worked with former Ford Brothers
employees in the Ford Brothers facility where he had
worked formerly, and that he used the same equipment
he had used before the work stoppage. In addition to
working on Ford Brothers equipment, he worked on
Ashland Chemical trucks, Leaseway trucks, and possibly
equipment of another company or two which he did not
recall
Orville Spence, a first-class Ford Brothers mechanic at
Coal Grove until the July 1983 work stoppage, testified
that he called Keith Lewis in late July asking for work,
but was told there was none On 16 August 1983, he
learned from Ronald LeMaster that work was available,
and after calling Lewis, was told to be at work the next
day The next day, when he reported to the Coal Grove
garage, he was told he would be paid $10 per hour,60
and that it was a nonunion job working for Ford Mainte-
nance and Cleaning On approximately 20 September,
Lewis told him he had to sign a paper giving up all se-
niority and vacation rights with Ford Brothers, or he
could not work for Ford Maintenance and Cleaning
Spence initially refused to sign the paper, but after con-
sulting with the Union's lawyer, Spence signed the paper
a day or two later 61 According to Spence, his supervi-
sor before and after the July work stoppage was the
same person, and he used the same equipment while
working for Ford Maintenance and Cleaning as he had
while working for Ford Brothers 62
Charles Dicus, another mechanic at the Coal Grove
terminal, was on vacation when the July 1983 work stop-
page began When he returned from vacation, he was
told by Lewis there was no work available, as the equip-
ment had been moved out Dicus said that he questioned
Lewis about why LeMaster and Spence were hired
when he was higher on the seniority list, but was told by
Lewis that it was a new company, he would have to put
in an applicaion, and, in any event, they did not need
anybody then.
Tex Devore, formerly a truckdriver for Ford Brothers
at the Coal Grove terminal, called the Coal Grove dis-
patcher, Russell Fief, after the work stoppage was over,
asking to report back to work Fief told him there was
no work at the Coal Grove terminal Devore asked for
work at another terminal, stating that he preferred Co-
lumbus, Ohio Fief called him subsequently, telling him
to pick up a tractor at the Coal Grove terminal on 11
60 Prior to July 1983, his rate of pay had been $12 64 per hour, effec-
tive the first week in July, his rate of pay had been reduced to $10 50 per
hour
61 Two other employees, Larry Massey and William Ferguson, signed
similar papers immediately
62 Prior to the July 1983 work stoppage, Spence had worked exclu-
sively on Ford Brothers trucks, after starting to work for Ford Mainte-
nance and Cleaning in August 1983, he worked on Ford Brothers equip-
ment and Ashland Chemical Company equipment at various times during
the work week
119
August, and a trailer at the Nitro, West Virginia termi-
nal, then haul a load of chemicals from Haverhill, Ohio,
to Addison, Ohio When he finished, he left the tractor
and trailer at the Coal Grove terminal For the trip, and
other trips after the work stoppage, Devore was paid 20
percent of the gross revenue 63 Although he did not
work the next week, he worked every week after that
until October 1983.64
Earl Ellis Davis, another Ford Brothers truckdriver
who formerly worked out at the Coal Grove terminal,
did not participate in the July work stoppage because he
was off work as the result of an injury and then he was
on 2 weeks' vacation. After his vacation was over, he
was called on 8 August by the Coal Grove dispatcher,
Russell Fief, who instructed him to pick up a "unit"
(presumably a tractor and trailer) from South Bloom-
field, Ohio, and haul a load of oil from Haverhill, Ohio,
to Lockhaven, Pennsylvania At the South Bloomfield,
Ohio location, Davis saw a number of Ford Brothers
tractors and trailers, which he recognized by their num-
bers as having previously been at Coal Grove, and he
was asked by a person named "Gregory" to sign a fuel
ticket bearing the heading of "Gregory Brothers." Next,
Davis hauled a load from Haverhill, Ohio, to Addison,
Ohio On 16 or 17 August, he agreed to a request by
Jerry Ford, the Columbus terminal dispatcher, to work
out of the Columbus terminal, as it was short of drivers
Davis hauled four loads dispatched by the Columbus ter-
minal, and then hauled two loads to Rotterdam Junction,
New York, after being dispatched by Russell Fief at
Coal Grove In late September, Davis was assigned to
deliver a load to Vallejo, California, using a tractor
owned by his son-in-law (and leased to Ford Brothers),
and a Ford Brothers trailer For the California trip, he
was paid by his son-in-law and received a percentage (26
percent) of the amount received by his son-in-law (as
owner of the tractor) from Ford Brothers For the previ-
ous runs assigned to him by Russell Fief, the Coal Grove
dispatcher, he received 20 percent of gross revenue He
was paid an hourly rate ($10.50) and mileage (20 cents
per mile) for the runs assigned by Jerry Ford, the Co-
lumbus terminal dispatcher.
William D Cornetet, formerly a Ford Brothers driver
employed at the latter's Cincinnati, Ohio terminal, testi-
fied that before 3 July 1984, he was paid $11.54 per hour
and 28.05 cents per mile, on 3 July the rate of pay
dropped to $10.50 per hour and 25 cents per mile 65 Mel
Roush, the dispatcher, said the orders came from Coal
Grove Cornetet filed grievances over the reduction in
pay, and received a letter with one of his paychecks
from "Mr Ford," stating that the Company was not
taking part in joint grievance hearings, but that his (Cor-
63 At a safety meeting at Ford Brothers' Nitro, West Virginia terminal,
which Devore was instructed to attend, he was told that the Company
would pay 80 percent of his health insurance premium Before the July
work stoppage, he had not paid any of the health insurance premium
64 On occasion he would pick up tractors at Coal Grove, or leave his
tractor and trailer overnight at Coal Grove before going back to Nitro,
West Virginia, the next morning
65 Notice of the reduction in the rate of pay was posted on a bulletin
board in the Cincinnati terminal
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
netet's) grievances would be taken care of through the
Company.
William Stover, formerly a driver working at the Coal
Grove terminal was off work because of illness from 17
to 21 July 1983, and told J Robert Ford during a tele-
phone conversation on 18 July that he was not on strike
and knew nothing of the strike. Nevertheless, on 20 July,
he received a letter saying that replacements would be
hired for strikers who did not return to work Stover
called Russell Fief, who told him to pay no attention to
the letter, but to report back to work when he was able.
On 21 July, when he called in, Stover talked first to Fief,
then to J Robert Ford, and received instructions from
both to pick up a truck from the Nitro, West Virginia
terminal, and drive to Front Royal, Virginia. For the
trip, and other trips made from the Nitro terminal until
the week ending 12 August, Stover was paid $10 50 per
hour for loading and unloading time, and 25 05 cents per
mile From 13 August to 22 October, he was paid on a
percentage basis (20 percent) He drove routes which he
had previously driven from the Coal Grove terminal,
and the Ford Brothers equipment which he used was
equipment which had previously been kept at the Coal
Grove terminal In mid-September, he was told by Carl
Roe, the Coal Grove terminal manager, that he, Stover,
was a Nitro driver, because there was no more Coal
Grove Stover said that once he started working at
Nitro, he did not receive any benefits, other than pay,
and he did not observe any sign-in board or seniority dis-
patched system at Nitro, such as there had been at Coal
Grove
William Grimm, another Ford Brothers driver who
formerly worked at the Coal Grove terminal, was on va-
cation when the strike began, and did not participate in
it. In August, he was told by Russell Fief there was no
more work at the Coal Grove terminal, and was asked
by Jenny Ford if he was interested in working out of the
Nitro terminal Instead, after a meeting with J Robert
Ford in which the arrangement was discussed, Grimm
bought his own tractor, and drove a few loads for Ford
Brothers out of the Nitro terminal, under a lease agree-
ment which provided that he would be paid 65 percent
of gross revenue
Larry Quillen, formerly a Ford Brothers driver work-
ing at the Company's Marietta, Ohio terminal testified
that on 3 July, an unsigned contract was posted on the
bulletin board at the garage, changing the pay rates from
$11 54 per hour and 28.05 cents per mile, to $10 50 per
hour and 25 cents per mile, and also changing vacations,
seniority, and other benefits According to Quillen, that
precipitated a work stoppage which lasted from 19 to 26
or 27 July Early in the work stoppage, Quillen related,
he had a conversation with Carl Hamilton, the Marietta
dispatcher, as the latter drove across the picket line,
during which Hamilton said, "I hate to see this, That's
all for the Marietta terminal." On 18 or 19 July, Quillen
said, Hamilton stopped his van as he left the terminal,66
66 Quillen denied that Hamilton's van was blocked from leaving the
terminal He said there was a security vehicle in front of Hamilton's vehi-
cle, and Hamilton could have gotten by if he had wanted to
and he and Quillen conversed According to Quillen, he
told Hamilton "he was doing us wrong," and an argu-
ment followed Hamilton reached down beside him in
the vehicle, and produced a gun, still in a holster, hold-
ing it up for Quillen to see Quillen said that he laughed,
and said that he had one also, although in reality he did
not have a gun with him at the time A probationary em-
ployee, named Roger Vass, was a passenger in Hamil-
ton's van on the occasion. Quillen said that because the
strike ended, he has observed Ford Brothers trucks for-
merly kept at the Marietta terminal operating in the
Marietta area on a daily basis.
Lester Jackson, a driver employed at Ford Brothers'
Marietta terminal participated in the work stoppage,
even though, according to him, he was on vacation from
the last week of June through 30 July He testified that
on 19 July he heard Hamilton, who.was sitting in his van
at the time, say that he wished the strikers would recon-
sider, as "it finishes the Ford Brothers' terminal here "
Hamilton said that "[a]ll I have to do is call the custom-
ers and tell them that we won't be hauling their products
any more " Jackson said that on 21 July he received a
notice signed by "Mr. Ford" asking him to report to the
office if he intended to continue doing business in the
Marietta area. On or about 30 or 31 July, Jackson spoke
by telephone with Russell Fief and was told by Fief that
there was no longer a terminal in Marietta, and that it
had been moved to Parkersburg, West Virginia Fief said
the terminal had been moved because of the labor dis-
pute. During a telephone call placed to Hamilton at his
home, Hamilton confirmed ' that the terminal had been
moved to Parkersburg, and said he was dispatching vehi-
cles from his home, because there was no telephone at
the Parkersburg terminal as yet. Hamilton said he would
let Jackson know if there was work.
William McCoy, formerly a driver employed at Ford
Brothers' Marietta terminal, was a participant in the July
work stoppage He testified that he received a letter stat-
ing that it would be necessary for the Company to hire
replacements if the strike continued, but never received
notice that he had been replaced According to McCoy,
his wife received a telephone call from Carl Hamilton on
26 July, during which Hamilton said that there was no
longer work available at the Marietta terminal McCoy
denied observing any damage inflicted on company vehi-
cles while picketing was taking place. McCoy stated that
on 19 July, he heard Hamilton say to pickets at the Mari-
etta terminal, "I'm sorry to see this boys "
Harold Bonnette, another former employee of Ford
Brothers who worked as a driver at the Marietta termi-
nal, testified that he participated in the work stoppage
which lasted until 26 July 1983, and that when he report-
ed back to work on 26 July, he was told by Carl Hamil-
ton that there was no longer any work available at the-
Marietta terminal He, too, testified that he was never
notified that he had been replaced on the job by another
employee.
Several witnesses presented by the General Counsel
gave testimony concerning conversations which they had
with various individuals said to be acting for Respondent
in a management capacity, during which the subject of
FORD BROS
relations between the drivers and the Respondent was
brought up.
Paul Bonnette, formerly a driver at Ford Brothers'
Coal Grove terminal, testified that in May or June 1983,
it was suggested to him by Carl Roe, whom he described
as a rateman for Ford Brothers, during a conversation at
the terminal, that the drivers make concessions so that
the Respondent's business could keep operating. Later, in
June or July, prior to the work stoppage, he had a con-
versation with Jenny Ford, the wife of J Robert Ford,
at the Coal Grove terminal, during which Jenny Ford,
who had initiated the conversation, told Bonnette, and
another employee, named Boyce Meeks, that, "we're
closing the Coal Grove terminal and the Marietta termi-
nal " Bonnette said that Jenny Ford showed them figures
from a computer printout, but did not make any threats
or promises Bonnette said that he also had a conversa-
tion with J Robert Ford, in the May to June timeframe,
during which Ford said that he wanted to talk to the
drivers, but the Union would not talk to him, and that
the drivers were going to have to make concessions
About the same time, Bonnette said, he heard Keith
Lewis say that Bob Ford wanted the drivers to go on
strike so he could close the terminal. Bonnette said he
participated in picketing, but did not observe any evi-
dence of violence
Boyce Meeks, formerly a driver for Respondent at its
Coal Grove terminal, testified that in May or June, he
and Bonnette were called by Jenny Ford into her office
at the Coal Grove terminal, where she told them that
Ford Brothers was not making any money and could not
afford to keep the terminal open. She said the terminal
would be closed on Friday 67 He said that she did not
threaten them or promise them anything, nor did she
asked them to pass on the information.
J Robert Ford, testifying for the Respondent, stated
that he did not recall a meeting with Paul Bonnette in
June or July 1983,. in which there was discussion of any
proposal to lower rates of pay or to change terms and
conditions of employment He said he did recall Bon-
nette complaining after 3 July about certain provisions of
the contract which Ford Brothers implemented on 3
July
Jenny Ford, J. Robert Ford's wife, testifying for the
Respondent, acknowledged that in early June 1983, she
had a conversation in the dispatch office at the Coal
Grove terminal with Paul Bonnette and Boyce Meeks
concerning the financial condition of the Company She
said that the conversation was initiated by the two em-
ployees, who said they were concerned about the finan-
cial condition of the Company. There followed a wide-
ranging conversation, according to Jenny Ford, during
which she said that the Company was losing a substantial
amount of money, but had not filed bankruptcy, and that
part of the problem was with slowpaying customers
Bonnette suggested that she arrange a meeting of the
drivers and Roger Hunt, president of Teamsters Local
Union 159, with J Robert Ford According to Jenny
Ford, she reserved a meeting room at the Holiday Inn,
67 The witness agreed that the terminal was not closed on that particu-
lar Friday
121
and contacted Roger Hunt by telephone, asking him to
meet with the drivers and "us," but he refused to attend
Jenny Ford denied that she had threatened to close the
Coal Grove terminal or any portion of the business or
that she had said that the terminal was going to be
closed on Friday
II ISSUES
In a lengthy complaint, the General Counsel alleges a
number of violations of the National Labor Relations
Act In addition, the complaint was amended at trial by
the General Counsel to allege a further violation of the
Act. Summarized, the complaint, as amended, alleges
(1) That Respondent, acting through Keith Lewis, at
its Coal Grove facility, in or around June 1983, threat-
ened employees with discharge in the event they en-
gaged in a strike, and on or about 20 September 1983,
threatened to discharge an employee if he did not waive
his collective-bargaining agreement rights.
(2) That Respondent, acting through Carl Hamilton at
its Marietta facility, on or about 19 July 1983, threatened
employees with discharge because of their strike activity,
and assaulted employees with a firearm because of their
strike activity
(3) That on or about 26 July 1983, and continuing
thereafter, Respondent failed and refused to reinstate cer-
tain employees to their former positions of employment
and their former seniority status, after they had made un-
conditional offers to return to their former positions of
employment.
(4) That on or about 20 June 1983, Respondent, acting
through Bob Ford, at its Coal Grove facility, bypassed
the Unions and dealt directly with employees in the col-
lective-bargaining unit, by meeting with them and pro-
posing lower rates of pay and terms and conditions of
employment less favorable than applicable to them under
the collective-bargaining agreement then in force
(5) That in or about June 1983, Respondent, acting
through Jenny Ford, at its Coal Grove facility, bypassed
the Unions and dealt directly with employees in the col-
lective-bargaining unit by meeting with them and ex-
plaining to them Respondent's accounting records and
suggesting that loss of revenue would cause Respondent
to close its Coal Grove and Marietta facilities
(6) That Respondent failed to continue in full force
and effect the terms and conditions of a collective-bar-
gaining agreement, by, on or about 23 July 1983, imple-
menting a collective-bargaining proposal not agreed to
by the Unions, reducing employee wages and benefits,
without a bona fide bargaining impasse having been
reached; by, in or about July 1983, subcontracting work
customarily performed by employees in the bargaining
unit at Respondent's Cincinnati and Columbus facilities;
and, since on or about 18 July 1983, by removing work
previously performed by bargaining unit employees em-
ployed at its Coal Grove and Marietta facilities, to other
points within the States of Ohio and West Virginia
(7) In or about June 1983, Respondent, acting through
Carl Roe, at its Coal Grove facility, bypassed the Union
and dealt directly with its employees by asking them to
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
provide the Company with concessions in the bargaining
negotiations between the employer and the Union.68
The General Counsel contends that the evidence sup-
ports and proves each of the allegations of the complaint,
and that the conduct alleged constituted unfair labor
practices in violation of the Act The General Counsel
argues that by unilaterally implementing new terms and
conditions of employment in the absence of a bona fide
impasse in bargaining , Respondent committed an unfair
labor practice , which , in turn , caused the employees to
strike . A strike caused by an unfair labor practice, con-
tends the General Counsel , is an unfair labor practice
strike, and unfair labor practice strikers are entitled to re-
instatement after an unconditional offer to return to
work The General Counsel further argues that Respond-
ent had a duty to bargain with the Union over its deci-
sion to subcontract work , and it was not relieved of that
obligation by creating an alter ego , in the form of Ford
Maintenance and Cleaning Corp Respondent further has
a duty to bargain where relocation of work is based on
savings in labor cost , as was the case in the relocation of
the Marietta and Coal Grove terminals Finally, the Gen-
eral Counsel states that it is an unfair labor practice to
threaten to discharge employees because they participate
in a strike or other Section 7 activity , and, that Carl
Hamilton assaulted employees on the picket line by
showing a firearm, and , that his conduct had a tendency
to coerce employees in the exercise of their Section 7
rights . Finally, notes the General Counsel , on three occa-
sions, each involving employee Paul Bonnette, among
others, Respondent bypassed the Union and dealt direct-
ly with employees . By its actions , says the General
Counsel , Respondent violated Section 8(a)(1), (3), and (5)
of the Act As part of an appropriate remedy, the Gener-
al Counsel urges that Respondent be ordered to reinstate
the employees who made an unconditional offer to
return to work, discharging employees with less seniori-
ty, if necessary , and reinstitute truckdriving and mechan-
ical operations at its Coal Grove , Cincinnati , Columbus,
and Marietta , Ohio facilities , as existed prior to the unfair
labor practices
The Charging Party asserts that the employees at Re-
spondent 's four terminals constituted a single bargaining
unit for collective -bargaining purposes , having merged
into a multiplant appropriate bargaining unit by a course
of conduct Supporting the General Counsel's positions,
the Charging Party also argues that a bona fide impasse
in bargaining had not been reached when Respondent
unilaterally implemented its proposals The work stop-
pages at Coal Grove and Marietta terminals were pro-
tected, argues the Charging Party, and the employees
were engaged in an unfair labor practice strike There-
fore, Respondent violated the Act when it refused to re-
instate the employees at the Coal Grove and Marietta
terminals Respondent also violated the Act, says the
Charging Party, when it closed the Marietta and Coal
Grove terminals in retaliation for the employees engag-
68 On motion of the General Counsel , the complaint was amended at
trial to include this allegation as para 13 (c) of the complaint On a sepa-
rate motion by the General Counsel , the complaint was also amended at
trial to include Donald R Rambo as a Coal Grove , Ohio employee of
Respondent
mg in an unfair labor practice strike And, the Charging
Party argues , the Respondent violated the Act by meet-
ing directly with employees and bypassing the Union,
and by threatening and assaulting its employees
Respondent argues that the Union , concerned only
with its own survival and a continued stranglehold on
the tank truck industry , ignored its obligation to bargain,
at the expense of its own members Stating that the Gen-
eral Counsel and its witnesses conceded that the strike
against Respondent was a reaction to Respondent's uni-
lateral implementation of its offer , Respondent concludes
that its actions were justified by an impasse, and , there-
fore, all other issues disappeared It was the Union's re-
fusal from the outset to bargain in good faith with Re-
spondent which created an impasse between the parties,
asserts the Respondent The Union , according to the Re-
spondent , refused to accede to Respondent 's repeated re-
quests to bargain individually with the local unions, and
insisted that all authority to bargain had been assigned by
the local unions to the Central Conference of Teamsters
and the Ohio Conference of Teamsters , and further in-
sisted that the Respondent sign the Central States Area
Tank Truck Agreement and the Ohio rider , before it
would even talk to Respondent about potential excep-
tions That conduct , Respondent concludes , was incon-
sistent with the Union 's obligation to bargain The Re-
spondent states that it had financial difficulties and could
no longer wait , after a 7-1 /2-month delay during which
the Union made no proposals and refused to even read
or discuss the Respondent 's 23 June 1983 proposals. The
Respondent asserts that in late June 1983 it advised the
Union it would implement its 2 June proposal, as modi-
fied by its 24 June proposal, on 3 July 1983, if there was
no resolution by 1 July . Thus, argues Respondent, the
Union knew there was an impasse on 3 July 1983, when
Respondent unilaterally implemented its modified pro-
posal.
Because there was an impasse , according to Respond-
ent, it was entitled to unilaterally implement its last offer,
and the subsequent strike was an economic strike, not an
unfair labor practice strike . In any event, argues the Re-
spondent , there was no unconditional offer by any of the
striking employees to return to work, nor by the Union
on their behalf On the other hand, says the Respondent,
it did reinstate every striker who made a valid request
for work, although Respondent does conceded that cer-
tain workers who returned to work were assigned to
other terminals or put on the payroll of a different cor-
poration , as their old jobs did not exist.
The Respondent denies that it subcontracted with
F & B to haul a single load of freight out of its Colum-
bus, Ohio facility ; to the contrary F & B contracted to
haul freight under its own authority , utilizing equipment
owned by Gregory Brothers . In Cincinnati , Respondent
acknowledges , it did subcontract with F & B, but only
to handle peak , overflow business that Respondent could
not handle In any event , says Respondent , the amount
of work handled by F & B in Columbus and Cincinnati
was de minimis.
Respondent also concedes that it partially closed its
Coal Grove facility as a result of the strike , but, accord-
FORD BROS
ing to Respondent, the work was not' transferred else-
where-it was lost. In any event, says Respondent, even
if it did transfer work, it had every right to do so in the
face of a crippling strike In the case of its Marietta facil-
ity, Respondent states that it was forced to transfer the
work to a terminal in Parkersburg, West Virginia, or lose
the customers
Respondent contends that there is no evidence to sup-
port the allegation that Keith Lewis threatened employ-
ees with discharge in June 1983 if they engaged in a
strike On the other hand, says Respondent, the alleged
episode in which Lewis demanded that Orville Spence
waive his seniority rights with Ford Brothers in order to
keep his job with Ford Maintenance and Cleaning was of
no consequence, as Spence was not fired and signed the
waiver on the advice of union counsel Not rising to the
level of-threats of discharge, Respondent contends, were
the remarks attributed to Carl Hamilton, and similarly
lacking in substance is the allegation that he assaulted
employees with a firearm Lastly, Respondent denies the
allegations that its president and vice president, Bob and
Jenny Ford, bypassed the Union and dealt directly with
employees
III. FINDINGS AND CONCLUSIONS
A Respondent's Unilateral Implementation of its
Proposals
On the evidence before me, I find that the Respondent
bargained in good faith with the Ohio Conference of
Teamsters, and that a genuine impasse existed on 3 July
1983, when the Respondent unilaterally implemented cer-
tain changes in terms and conditions of employment af-
fecting its employees who were members of collective-
bargaining units represented by Teamsters Local Unions
No 159, 637, 413, and 114, which, in turn, were repre-
sented for collective-bargaining agreement negotiating
purposes by the Ohio Conference of Teamsters.
Section 8(d) of the Act provides that the obligation
imposed on an employer to bargain collectively with its
employees (Sec 8(a)(5)) requires that the representative
of the parties meet at reasonable times and confer in
good faith concerning wages, hours, and other terms and
conditions of employment, or the negotiation of an
agreement, and on request, execute a written contract in-
corporating any agreement reached The obligation to
bargain collectively, however, does not compel either
party to agree to a proposal or make a concession
NLRB v. Herman Sausage Co, 275 F 2d 229, 231 (5th
Cir. 1960). As stated by the Board in United Contractors,
244 NLRB 72 (1979).
Section 8(a)(5) of the Act establishes a duty "to
enter into discussions with an open and fair mind,
and a sincere purpose to find no basis of agree-
ment " NLRB v. Herman Sausage Company Inc, 275
F 2d 229, 231 (5th Cir 1960) As the Supreme
Court stated in NLRB v. Insurance Agents' Interna-
tional Union, AFL-CIO (Prudential Insurance Com-
pany of America), 361 U S. 477, 485 (1960).
Collective bargaining then is not simply an oc-
casion for purely formal meetings between man-
123
agement and labor, while each maintain an atti-
tude of "take it or leave it", it presupposes a
desire to reach ultimate agreement, to enter into
a collective bargaining contract.
This obligation does not compel either party to
agree to a proposal or to make a concession NLRB
v. American National Insurance Co, 343 U S 395
(1952) However, the Board may, and does, examine
the contents of the proposals put forth, for "if the
Board is not to be blinded by empty talk and by the
mere surface motions of collective bargaining, it
must take some cognizance of the reasonableness of
the position taken by an employer in the course of
bargaining negotiations " NLRB v. Reed & Prince
Manufacturing Co, 205 F 2d 131, 134 (1st Cir
1953), cert denied 346 U S 887
It is well established that "[t]he mere willingness of
one party in the negotiation to enter into a contract of
his own composition also does not satisfy the good-faith
bargaining obligation " United States Gypsum Co, 200
NLRB 1098, 1100 (1972). "Bargaining presupposes nego-
tiations-with attendant give and take-between parties
carried on in good faith with intention of reaching agree-
ment through compromise " Winn-Dixie Stores, 243
NLRB 972, 974 (1979) In determining whether a party
bargained in good faith, it is appropriate to examine the
"totality" of its conduct NLRB v. Reed & Prince Mfg
Co., 205 F.2d 131, 135 (1st Cir. 1953), cert denied 346
U S 887.
It is well settled that even though a collective-bargain-
ing agreement may have expired, an employer has a duty
to continue to consult and negotiate with the union, and
violates Section 8(a)(5) of the Act by unilaterally chang-
ing terms and conditions of employment prior to the ne-
gotiations reaching a genuine impasse Electric Machinery
Co. v. NLRB, 653 F 2d 958 (5th Cir. 1981) A genuine
impassse is defined as "synonymous with a deadlock, the
parties have discussed a subject or subjects in good faith,
and despite their best efforts to achieve agreement with
respect to such, neither party is willing to move from it
respective position " Electric Machinery Co. v. NLRB,
supra at 963. "Until the collective-bargaining process has
been exhausted, no impasse can occur " Excavation-Con-
struction Inc, 248 NLRB 649, 650 (1980) And, even if an
impasse has been reached, an employer may implement
unilaterally only changes it has placed on the bargaining
table "However, one of the circumstances which the
Board insists upon in such cases is that the employer's
unilateral change must be consistent with the employer's
previous proposal to the union of changes in the expired
contract " Stone Boat Yard, 264 NLRB 981, 982 (1982)
The General Counsel and the Charging Party contend
that there was no impasse on 3 July 1983, when Re-
spondent unilaterally implemented its proposals affecting
terms and conditions of employment of union members
employed at its four Ohio terminals 69 The General
69 The General Counsel and the Charging Party do not argue that Re-
spondent was bound by the proposed Central States Area Tank Truck
Agreement, which had been approved in the 13-state Central Area
Continued
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Counsel points out that the Union and the Respondent
were actively engaged in bargaining up to within a week
of the implementation, and that the Union's position was
far from inflexible, including, as it did, an offer from the
Union to apply the lower Kentucky rider rates to a por-
tion of Respondent's business The Union's insistence that
Respondent sign the Central States Area Tank Truck
Agreement and the Ohio rider, according to the General
Counsel, was merely good, hard bargaining , and was not
unreasonable since on 7 December 1982, Respondent had
agreed to sign these agreements, and remained commit-
ted to do so until 1 April 1983 In view of Respondent's
failure to give the Union advance notice of its intention
to implement on 3 July, the General Counsel does not
consider the Union's failure to respond to Respondent's
counterproposal by 1 July to be a valid ground for im-
plementation.
To this line of argument, the Charging Party adds that
from 1 April to 2 June, Respondent made no effort to
contact the Union to arrange mutually agreeable dates
on which to resume negotiations. Unknown to the
Union, and not evidenced in Respondent's 24 June letter,
except by the vague request to "Please let us know by
July 1, 1983," Respondent made a decision to unilaterally
implement its 24 June proposal even before making it,
contends the Charging Party The Union, argues the
Charging Party, had no meaningful opportunity to react
to the proposal, and negotiations had not reached the
point where there was no realistic possibility that a con-
tinuation of discussion would not have been fruitful.
There was, says the Charging Party, no apparent sense
of urgency, because negotiations had been going on for 7
months, during which no meetings were held for 2 and 3
months at a time.
The course of bargaining up to the point at which Re-
spondent unilaterally withdrew its proposals, however,
does not support the General Counsel and Charging
Party's contention that prospects for further compromise
still existed To the contrary, the position of the Union
was then, as it had always been throughout the negotia-
tions, that all employers were expected to sign the
master agreement and the appropriate state rider before
any individual addendum could be negotiated In short,
the only contract which the Union was willing to sign
was one of its own compositions, and it was unwilling to
move from that position
As early as 22 February 1982, Respondent notified the
Central Conference of Teamsters of its withdrawal from
the multiemployer bargaining unit, known as Labor Re-
lations Advisory Association, which had previously bar-
gained with the Teamsters on behalf of the employer
members of the Association, and of its intent to bargain
separately with the local unions representing Respond-
ent's employees over the terms and conditions of a new
collective-bargaining agreement to replace the one expir-
ing on 14 November 1982. Respondent repeated notice
of its withdrawal from the Association and intent to bar-
Region , but was part of the package of two agreements (including a pro-
posed Ohio rider) which had been defeated by the Ohio Teamster mem-
bership, nor, do they contend that Respondent violated the Act on I
April 1983 by withdrawing all of its previous offers and proposals
gain on a "terminal -by-terminal" basis in another letter to
the Central Conference, dated 9 September 1982, copies
of which were sent to the four local unions involved. In
that letter, Respondent asked to be consulted before
meetings were set up Stating that he had heard nothing
from the representatives of the local unions, by letter-of
21 October 1982 Respondent's president advised the four
local unions that he had prepared a written proposal and
would like to meet with them to discuss it
Notwithstanding Respondent's desire to negotiate sep-
arately with each local union, by letter of 25 October
1982, the Central Conference of Teamsters informed all
employers by the Central States Area Tank Truck
Agreement that local unions had not authority to negoti-
ate a renewal of the Tank Truck Agreement, because, it
was asserted, under the International Union's constitu-
tion,, the local unions were required to negotiate solely
and exclusively through committees established by the
Central Conference of Teamsters 70
When bargaining on new contracts in October 1982,
the Central Conference of Teamsters, in negotiating a
new Central States Area Tank Truck Agreement, and
the Ohio Conference of Teamsters, in negotiating a new
Ohio rider, met only with the employers as a group,
even though the employers were no longer collectively
represented by a multiemployer bargaining unit. Al-
though individual employers were able to present their
individual proposals, at least in the Ohio rider negotia-
tions, if they had any, that was done at group bargaining
sessions attended by the Ohio Conference bargaining
committee and such employers as cared to attend 71
From these point employer bargaining sessions, there
emerged by early December 1982 a single proposed Cen-
tral States Area Tank Truck Agreement and a single
Ohio rider .72
From the outset of the goal of the Ohio Conference of
Teamsters, operating under instructions from the Central
Conference of Teamsters, was that all tank truck carriers
in Ohio had to become parties to the new Central States
Area Tank Truck Agreement, and to the new Ohio
rider The Union's position in this regard never changed
70 The record is silent about whether or not other employers covered
by the expiring Central States Area Tank Truck Agreement (and individ-
ual state riders ) requested separate negotiations with local unions repre-
senting their employees It is reasonable to infer, however, from the fact
that the Central Conference of Teamsters found it necessary to address
the question of negotiations with local unions in its letter to all employers
of 25 October 1982, that the issue was a matter of concern to the Team-
sters Union
41 The record is silent as to the mechanism by which the group bar-
gaining sessions were actually scheduled and, in the absence of evidence
to the contrary , it must be assumed that Respondent and the other em-
ployers agreed to the timing and locations of the bargaining sessions Re-
gardless, if the Respondent , a southern Ohio employer, wanted to partici-
pate in the negotiations for renewal of the Central States Area Tank
Truck Agreement, its representatives would have had to travel to Rose-
mount, Illinois, where the negotiations began on 28 October 1982, some-
thing the Respondent apparently chose not to do It did, however, par-
ticipate in bargaining sessions over a new Ohio rider , which began in Co-
lumbus, Ohio, on 1 November 1982 At the opening of the Ohio rider
bargaining session, Russell Albright, chairman of the Ohio Tank Truck
Committee , announced the local unions would not have separate negotia-
tions with the employers
72 This record does not cover the progress of negotiation of riders in
other States within the Central Conference of Teamsters
FORD BROS
through 1982 and 1983 , and even after the strike against
Respondent began, the Ohio Conference remained un-
willing to consider entering into an addendum with Re-
spondent to deal with any special needs it may have had,
unless the Respondent first agreed to sign the Central
States Tank Truck Agreement and the Ohio rider.
For its part, as early as 9 November 1982, Respondent
submitted a written proposal to the Ohio Conference of
Teamsters , offering a contract on terms materially differ-
ent from the expiring Central States Tank Truck Agree-
ment and Ohio rider , including paying drivers on a per-
centage of gross revenues basis, instead of on a mileage
basis This proposal by Respondent was rejected, as were
individual proposals by other carriers, but the carriers,
including Respondent , followed up with a joint proposal,
and following further negotiations, with a common final
offer which, on 7 December 1982, the Ohio Conference
of Teamsters agreed to submit to its members The Cen-
tral Conference of Teamsters and the carriers participat-
ing in bargaining with the Central Conference had
agreed on a tentative Central States Area Tank Truck
Agreement by 1 December 1982. Although it did not
participate in negotiating the tentative Central States
Area Tank Truck Agreement, Respondent agreed to be
bound by its terms on 12 January 1983.
The tentative Central States Area Tank Truck Agree-
ment and the tentative Ohio rider were presented as a
package to the Ohio Teamsters union members for a rati-
fication vote in January 1983 The Ohio Teamsters union
members who did not vote separately on the individual
agreement , rejected the combined agreements Consider-
ing the results of voting by union members in all States
within the Central Conference of Teamsters, the Central
States Tank Truck Agreement was approved. The situa-
tion in Ohio was apparently both unprecedented , and un-
anticipated and, as a result , the Ohio carriers and the
Ohio Conference of Teamsters were unable to agree
whether either, neither, or both of the agreements had
been approved. The Union took the position that the
Tank Agreement had been approved, but the carriers
took the position that either both of the agreements had
been ratified , or neither of them had been ratified , and, at
the bargaining session of 22 March 1983 , stated that their
offer of 7 December 1982 was their final offer. Respond-
ent whose president was in attendance , did not at that
time disassociate himself from the position taken by the
other carriers But, subsequently, by letter of 1 April
1983, Respondent 's president , J. Robert Ford , notified
the Ohio Conference of Teamsters that it was withdraw-
ing all proposals before the Union, including those of
November and December 1982, and March 1983, and
asked for an "immediate session to discuss issues " In re-
sponse, Russell Albright, chairman of the Ohio Confer-
ence of Teamsters Tank Truck Committee, by letter of 4
April 1983, asked Ford to contact his office regarding
mutually agreeable dates
There was, it appears, no further contact between Re-
spondent and the Ohio Conference of Teamsters until 2
June 1983, however, when Respondent submitted an-
other written proposal to the Ohio Conference of Team-
sters Differing markedly from the carriers' common
offer of 7 December 1982, and the expired Central States
125
Area Tank Truck Agreement and the expired Ohio rider,
Respondent 's 2 June proposal provided that drivers
would be paid a percentage of gross revenues for trips
over 25 miles , and hourly wages variously at $9 or $10
per hour.73
At a bargaining session held on 23 June, the Ohio
Conference of Teamsters, through Russell Albright, re-
jected the percentage proposal concept , but offered to
consider allowing Respondent to haul freight originating
in Kentucky under the lower rates of the Kentucky
rider Albright testified that although he did not recall
saying so to Respondent 's president , J Robert Ford, Re-
spondent 's only option was to sign the proposed Central
States Area Tank Truck Agreement and the Ohio
rider'74 before anyone would talk to him about an ad-
dendum , such as the Kentucky rider The bargaining ses-
sion terminated inconclusively , with no agreement.
Respondent's next proposal to the Ohio Conference of
Teamsters was in the form of a letter, dated 24 June
1983, in which Respondent offered to accept $10 per
hour and 25 cents per mile for 3 years , if it applied to
traffic at all of Respondent 's terminals, and included a
freeze on health and welfare benefits for the duration of
the contract Alluding to Respondent 's financial prob-
lems, J . Robert Ford, who signed the letter , requested a
reply by 1 July 1983 75 In a cover letter from Ford's at-
torney to the president of Local Union 159 forwarding a
copy of Ford's 24 June letter to the Ohio Conference,
the attorney stated that the deadline for consideration of
the Company's last proposal was 1 July. Neither the
Ohio Conference or Conference of Teamsters, nor Local
Union No . 159 replied to the Respondent's proposal by 1
July, or at any later time . In a letter dated 2 July 1983, J.
Robert Ford informed the Ohio Conference of Teamsters
that an impasse existed, and that beginning the next day
Respondent would implement its last proposal, which
Ford characterized as its 2 June 1983 proposal modified
by its 24 June 1983 proposal As announced , Respondent
unilaterally implemented certain proposals at its four
Ohio terminals (Columbus, Cincinnati , Marietta, and
Coal Grove) on 3 July 1983 On 18 July the employees
at the Coal Grove terminal began a strike which was no-
tauthorized by the Union , the employees at the Marietta
terminal went out on an unauthorized strike the next
day.
Here the question is whether or not the Respondent
negotiated in good faith , and whether at the time it uni-
laterally implemented its proposals a genuine impasse ex-
43 Respondent 's 2 June 1983 proposal in many respects was similar to
its earlier written proposal of 9 November 1982, but there were also some
notable differences , in the form of reductions in pay or benefits in the 2
June 1983 proposal as compared to the 9 November 1982 proposal In
particular , the 2 June proposal made reductions in the proposed pay for
drivers and mechanics, limited reimbursement for lodging and food while
drivers were away from home overnight , eliminated Respondent's pay-
ments to the Central States Health and Welfare Fund , reduced Respond-
ent's payments to the Central States Pension Fund, created a new griev-
ance procedure , and added a mechanic addendum
74 The Ohio Teamsters membership ratified an Ohio rider on 1 August
1983
7 5 Ford testified that he told Albright that he could not wait any
longer , when he delivered his letter to Albright on 24 June Albright tes-
tified that he did not recall whether he spoke to Ford on that day
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
isted because the negotiations were deadlocked, as a
result of the Union having adopted and maintained a
"take it or leave it" bargaining position from which it re-
fused to move
The Teamsters Union's intentions in 1982 and 1983
were unmistakably clear It wanted a master agreement
covering all employees in the Central States Area, with
separate riders for each of the 13 States to take care of
setting the wage rates and certain other terms and condi-
tions of employment applicable in each individual State.
That was the structure of previous collective-bargaining
agreements negotiated with the multiemployer bargain-
ing unit, then known as the Labor Relations Advisory
Association, which was disbanded in 1982 by the em-
ployers The Central Conference of Teamsters, which set
policy for all State and Local Teamster bodies, gave in-
structions to Teamsters bargaining committees to accept
nothing less in the 1982-1983 negotiations For its part,
the Ohio Conference of Teamsters bargaining committee,
which first met with the Respondent individually on 23
and 24 June 1983, almost 8 months after bargaining over
a new collective-bargaining agreement began, adhered
faithfully to the Central Conference's directives. Russell
Albright, the bargaining committee chairman, rejected
categorically Respondent's precentage pay proposal
(which differed from the mileage and hourly rates of the
previous Ohio rider) advanced in the latter's 2 June pro-
posal and, although, as he testified, he did offer to con-
sider allowing Respondent to haul freight originating in
Kentucky under the Kentucky rider, it was his position
that before anyone would talk to Respondent (in this in-
stance, its president, J. Robert Ford) about an adden-
dum, such as the Kentucky rider, the Respondent's only
option was to sign the proposed Central States Area
Tank Truck Agreement and the proposed Ohio rider
The Respondent's objective were at odds with those of
the Union from the start Contrary to the Union's desire
for a multiemployer master agreement at the Central
States level, with multiemployer state riders for each of
the 13 States in the Central States area, Respondent
wanted to negotiate individual collective-bargaining
agreements with the four Teamsters Local Unions repre-
senting its employees It first informed the Union of its
desire in this regard in February 1982, and repeated its
desire to negotiate with the individual local unions in
September 1982, prior to collective bargaining over the
new agreements beginning The Central Conference of
Teamsters and the Ohio Conference of Teamsters, how-
ever, rejected all employer attempts to bargain with indi-
vidual local unions, stating that only bargaining commit-
tees established through the Central Conference could
bargain on behalf of the local unions Moreover, when
bargaining began in October 1982, the bargaining com-
mittees appointed by the Central Conference and the
Ohio Conference of Teamsters met with the employers
as a group, and not separately with individual employ-
ers 76
'S As noted previously, the Union conceded that employers who were
not members of multiemployer unit, which included all employers in the
Central States area in 1982-1983, were entitled to bargain as individuals
So far as the Union was concerned, however, that right did not extend to
bargaining sessions with individual employers
The Respondent, for whatever its reasons, retreated
from its earlier position, and joined other employers in
bargaining with the Ohio Conference bargaining commit-
tee over a new Ohio rider It participated in the Novem-
ber and December 1982 bargaining sessions which pro-
duced a proposed Ohio rider which the Union's bargain-
ing committee agreed to recommend to the union mem-
bership 77 The Respondent agreed to be bound not only
by the proposed Ohio rider, in the negotiation of which
it participated, but by the proposed Central States Area
Tank Truck Agreement, in the negotiation of which it
did not participate 78 Through the concessions which it
made, and by its agreement to be bound by the proposed
Central States Area Tank Truck Agreement and the pro-
posed Ohio rider, Respondent demonstratd good faith
and the sincere desire to reach agreement with the
Union.
Thus, early in the negotiations, Respondent made sub-
stantial concessions to the Union and agreed to collec-
tive-bargaining proposals negotiated with and acceptable
to the bargaining committees of the Central Conference
of Teamsters and the Ohio Conference of Teamsters,
which, if approved by the union membership, would
have met the bargaining objectives of the two confer-
ences. The proposed agreements were not consummated,
however, as the Ohio Teamsters union membership re-
fused to ratify them, despite the recommendations of the
negotiating committees of the two conferences While it
is certainly true that the Ohio Teamsters membership
had a right to reject the agreements, it was their action,
and not the result of anything done or not done by Re-
spondent, which resulted in the failure of bargaining ef-
forts up to that point to produce binding collective-bar-
gaining agreements covering union members and em-
ployers in Ohio.
While the course of bargaining after the Ohio Team-
sters membership rejected the proposed agreements,
through March 1983, does not appear to have been
marked by a sense of urgency to reach new agreements,
including, as it did, only one meeting in February and
one meeting in March between the employer and the
bargaining committee of the Ohio Conference of Team-
sters, I do not find that to indicate any particular lack of
interest or diligence attributable to the Respondent It
was the Ohio union membership, after all, which rejected
the proposed agreements, not the Respondent, and the
bargaining committee of Ohio Conference of Teamsters,
so far as the record indicates was still willing to meet the
bargain only with the employers jointly. Whatever lack
of urgency there may have been, it was mutual, and
there is nothing in this record indicating that any par-
ticular pressure was exerted by the Union to resume ne-
gotiations Under the circumstances, the Union had at
" The employers submitted a joint proposal to the union bargaining
committee on or about 24 November 1982 At the 7 December 1982 ses-
sion, the union bargaining committee agreed to recommend to the Ohio
union membership acceptance of the employers' "final common offer "
78 In fairness, of course, it should be noted that Respondent apparently
chose not to travel to Illinois to participate in the Central States Area
Tank Truck Agreement negotiations
FORD BROS 127
least as much of an obligation as the employers to get ne-
gotiations started again and keep them moving.
Another period of relative inactivity began on 1 April
1983 when Respondent withdrew its previous offers (no-
tably, it withdrew from the employer's common offer of
7 December 1982, which the employers, without objec-
tion by Respondent, had reasserted on 22 March 1983),
and asked for an immediate session to discuss issues In
response, by letter of 4 April, the Union asked Respond-
ent to contact it regarding mutually agreeable dates.
There was no subsequent contact by either side, howev-
er, until Respondent sent written proposals to the Union
on 2 June 1983.
But, while Respondent could have acted more dili-
gently than it did, I do not agree that the Union was
without fault and acted with due diligence under the cir-
cumstances Up until then, the Union had refused to
meet with Respondent individually and, when requested
to do so immediately by letter from Respondent of 1
April, begged the issue by telling the Respondent in a
letter of 4 April to contact the Union's office concerning
dates. If the Respondent can be criticized for failing to
follow up on the Union's 4 April letter, the Union can be
criticized with equal force for not responding to Re-
spondent's 1 April letter by proposing a date for a meet-
ing, instead of attempting to avoid a commitment and
shifting the burden back to Respondent
The General Counsel argues that in view of Respond-
ent's failure to give the Union advance notice of its
intent to unilaterally implement its proposals on 3 July,
the Union's failure to reply to the Respondent's counter-
proposal (that of 24 June) by 1 July hardly constitutes a
valid ground for implementation. The Charging Party
concurs, arguing that Respondent did no more than
make a "vague request" for an answer by 1 July The
General Counsel and the Charging Party argue that no
impasse had been reached by 3 July, in any event, as sig-
nificant give and take had occurred at the 23 and 24
June meeting, at which there had been an exchange of
proposals and counterproposals, negating the "conclusion
that the prospects of further compromise were nil
"79
If the events between 2 and 3 July were considered in
isolation, arguably the positions of the General Counsel
and the Charging Party would have merit. Clearly, Re-
spondent did not expressly in writing put the Union on
notice on 24 June or at any other time prior to 2 July
that it intended to unilaterally implement its proposals if
it did not receive a response to its 24 June proposals by 1
July. In his letter of 24 June, J Robert Ford said of his
proposals only, "please let us know by July 1 1983," and
James W. Muldoon, Respondent's attorney, in his cover
letter forwarding Ford's 24 June proposal to Local
Union 159, said, "Please note the company's deadline for
consideration of this last proposal is July 1, 1983." Nei-
ther of these statements make mention of Respondent's
intention to unilaterally implement its proposals other-
wise J Robert Ford's testimony that he told Russell Al-
bright orally on 24 June that he needed a vote by the
employees by the following weekend, otherwise, he "in-
tended to implement that proposal," is not corroborated
by Albright, who said he did not recall whether he
talked to Ford on that day. As a union leader, it is
highly unlikely that he would have failed to recognize
the importance of such a threat by an employer and
would have remembered it, if he heard it. In the final
analysis, I find the written communications to be entitled
to the greatest weight as evidence of Respondent's inten-
tions, and lack of clear statement of its intent to unilater-
ally implement in either of two written communications
to the Union cannot be overcome by a disputed oral
statement
In any event, if it is assumed that Respondent did put
the Union on notice of its unilaterally established dead-
line for acceptance of its offer and its intent to unilateral-
ly implement its proposals if the deadline was not met,
that method of bargaining if it constituted the entire
course of bargaining between the two sides, would not
satisfy the definition of the duty to bargain collectively
contained in Section 8(d) of the Act. Winn-Dixie Stores,
243 NLRB 972, 974 (1979). As the Board said in Winn-
Dixie, supra "[c]learly this duty requires more than going
through the motions of proffering a specific bargaining
proposal and merely giving the bargaining agent an
opportunity to respond " Accepting, for the moment,
Respondent's claim that it notified the Union of its intent
to unilaterally implement its proposals, if they were not
accepted in 7 days, it is clear that Respondent intended
to implement them whether the Union accepted them or
not. Standing alone, that constituted nothing more than
giving the Union an ultimatum to accept it or else, and
thus would be nothing more than ritual or pro forma
bargaining, not good-faith bargaining, Winn-Dixie Stores,
supra. Where the collective-bargaining process has not
been exhausted, no impasse can occur Excavation-Con-
struction, supra at 650
But, events between 2 June and 3 July do not, of
course, represent the entire course of bargaining between
the Respondent and the Union By June, if not earlier,
the collective-bargaining process had been exhausted, be-
cause by then, despite their best efforts to achieve agree-
ment, neither party was willing to move from its posi-
tion, and at that point the negotiations were deadlocked
The Union adamantly insisted that the Respondent's only
option was to sign the Central States Area Tank Truck
Agreement and the Ohio rider, an unyielding position
which it had held throughout the negotiations which
began in October 1982, almost 8 months earlier Al-
though the Respondent modified its pay proposal on 24
June it showed no disposition to accede to the Union's
demand that it sign the Central States Area Tank Truck
Agreement and the Ohio rider
For its part, the Respondent, which in early 1982
stated that it wanted to bargain individually with the
four local unions representing its employees, attempted
to compose its differences with the Union by making
substantial concessions in its position, to the extent, at
one point, of agreeing to be bound by the proposed Cen-
tral States Area Tank Truck Agreement and Ohio rider
When the proposed agreements were not ratified by the
19 Citing Aaron Bros Co v NLRB, 661 F 2d 750, 755 (9th Cir 1981) Ohio union membership, the Respondent reverted back
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to its original position that it wanted agreements with the
four local unions representing its employees
While the obligation to bargain does not compel either
party to make concessions, it is required that the parties
make a serious attempt to resolve their difference and
reach a common ground. NLRB v. American National In-
surance Co, 343 U.S 395 (1952), NLRB v. Insurance
Agents, 361 U.S. 477 (1960). Considering the totality of
its conduct, it is evident that the Respondent did make a
reasonable effort to compose its differences with the
Union and, I conclude, bargained in good faith to a gen-
uine impasse.
While the Teamsters Union had a right to negotiate
for a master agreement and individual state riders to be
signed by all carrier-employers, by refusing to accept
anything different, or to even discuss local addendums or
modifications with individual employers until they
agreed to sign the master agreement and appropriate
state rider, the Union risked putting itself in the same
"take it or leave it" bargaining posture which the Su-
preme Court condemned in NLRB v. Insurance Agents,
supra, 361 U.S at 487 A union, dust as is an employer, is
required to bargain in good faith in a sincere effort to
find a basis for agreement, and while that does not mean
that it must make concessions, neither can it maintain an
attitude of "take it or leave it."
In this case, by 24 June, insofar as the Union was con-
cerned, its position with respect to the Respondent was
one of "take it or leave it." The Respondent was, as the
record indicates without contradiction, a small carrier,
with whom, it appears, the Union was not greatly con-
cerned. It is inferrable from the record that the Central
Conference of Teamsters and the Ohio Conference of
Teamsters were mainly intent on reaching agreement
with the large carrier on a master agreement and state
riders, with, it seems logical to assume, the expectation
that the smaller carriers would sooner or later be forced
to fall in line.
A brief overview of the course of bargaining clearly
demonstrates the Union's lack of interest in the Respond-
ent The Respondent's requests in February and Septem-
ber 1982 for negotiations with the four local unions rep-
resenting its employees and that it be consulted in estab-
lishing meeting times and places were not even given
personal replies by the Central Conference or Ohio Con-
ference, and negotiations were begun and completed by
the Central Conference on a master agreement without
the Respondent being present In negotiating the pro-
posed Ohio rider in the fall of 1982, Respondent was
only one of a number of carriers involved, and there is
nothing in the record to indicate it played any sort of
major role in fashioning the proposed agreement which
was eventually agreed to by the carriers and the union
negotiating committee, but rejected by the Ohio union
membership. When, on 1 April Respondent notified the
Ohio Conference that it was withdrawing its earlier
offers, the Ohio Conference took no initiative to enter
into bargaining with the Respondent, being content, it
appears to let the matter ride In the meantime, however,
it appears from the record that the Ohio Conference ne-
gotiated another Ohio rider with other Ohio carriers, and
that proposed Ohio rider was ratified by the Ohio union
membership in August 1983
It was only after the Respondent submitted written
proposals on 2 June that the first meeting between the
Respondent, individually, and representatives of the bar-
gaining committee of the Ohio Conference took place on
23 June, and even then there was no discussion of Re-
spondent's proposals, other than a categorical rejection
by the Union of Respondent's percentage proposal con-
cept. According to the testimony of the chairman of the
Ohio Conference negotiating committee, Russell Al-
bright, Respondent's only option at that time was to sign
the proposed Central States Area Tank Truck Agree-
ment and the Ohio rider, before anyone would talk to
Respondent about an addendum, such as the Kentucky
rider In short, the only collective-bargaining agreement
which the Union would accept was one of its composi-
tion
Considering the Union's unyielding, negotiating posi-
tion, Respondent's submission of a modified proposal on
24 June was a useless act. The Union had no intention of
accepting anything less from Respondent than its signa-
ture on the proposed Central States Area Tank Truck
Agreement and the Ohio rider, and the Respondent's 24
June proposal did not remotely approach that The Re-
spondent, by implementing its proposal on 3 July, did
not deprive the Union of adequate time to consider its
latest proposal, because the Union had no intention of
considering it at all Then negotiations by then were
deadlocked by the Union's refusal to move from its posi-
tion. The collective-bargaining process was exhausted,
and a true impasse existed Excavation-Construction,
supra, Electric Machinery Co., supra
Respondent's right to unilaterally change existing
terms and conditions of employment was limited to
changes consistent with its previous proposals to the
Union. NLRB v. Herman Sausage Co., supra, Stone Boat
Yard, supra A comparison of the proposals implemented
unilaterally by Respondent on 3 July shows that they
were the same as its proposals to the Union of 2 June, as
modified on 24 June
Accordingly, since Respondent had negotiated in good
faith, and a genuine impasse existed at the time, and the
Respondent unilaterally implemented only changes
which it had placed on the bargaining table, it did not
violate the Act on 3 July 1983 by unilaterally changing
existing terms and conditions of employment. Since Re-
spondent did not violate the Act by unilaterally imple-
menting the changes, the strike engaged in by its em-
ployees at its Coal Grove and Marietta, Ohio terminals,
without union sanction, beginning on 18 and 19 July
1983, respectively, the cause of which it is undisputed
was the unilateral changes implemented by Respondent,
was an economic strike, and not an unfair labor practice
strike
B Reinstatement of Striking Employees
Arguing that Respondent's Coal Grove and Marietta
terminal employees were engaged in an unfair labor
practice strike which terminated on 26 July 1983 follow-
ing an unconditional offer to return to work, the General
FORD BROS
Counsel and the Charging Party allege that Respondent
violated Section 8(a)(1) and (3) of the Act by its refusal
to return the employees to their former, or substantially
equivalent, positions of employment Respondent, for its
part, argues that the employees were engaged in an eco-
nomic strike, not an unfair labor practice strike, and they
were not entitled to reinstatement even if an uncondi-
tional offer to return to work was made, absent a settle-
ment. In any event, contends the Respondent even
though there were no unconditional offers to return to
work, it did reinstate every striker who made a valid re-
quest for work, and sought out some who did not make
requests and offered them work
For reasons previously stated, I find that Respondent's
employees at its Coal Grove and Marietta terminals who
struck on 18 and 19 July 1983 were engaged in an eco-
nomic strike, not an unfair labor practice strike. The fact
that they were economic strikers, however, does not rule
out that at some point they may have become entitled to
reinstatement to their former positions, or to substantially
similar positions
It is well established that an economic striker is en-
gaged in protected activity under Section 7 of the Act.
Brooks Research & Mfg, 202 NLRB 634, 636 (1973) An
employer may hire permanent replacements for econom-
ic strikers, and may lawfully refuse an economic striker's
request for reinstatement if the striker has been perma-
nently replaced by the time the strike ends NLRB v
Mackay Radio Co, 304 U S 333 (1938), Belknap, Inc. v
Hale, 463 U.S. 491, (1983). An economic striker who
makes an unconditional request for reemployment is enti-
tled to his former position unless the position has been
filled by a permanent replacement, or unless some other
legitimate and substantial business justification exists
NLRB v. Fleetwood Trailer Co., 389 U S 375, 379 (1967);
NLRB v W. C McQuaide, Inc, 552 F 2d 519 (3d Cir.
1977); Medallion Kitchens, 275 NLRB 58 (1985)
But even if the position of an economic striker who
unconditionally requests reinstatement has been perma-
nently filled, that does not end his entitlement to reem-
ployment In Nolan Systems, 268 NLRB 1248, 1249
(1984), the Board held
It is well established that economic strikers have
the right to be treated equally with nonstrikers. The
Supreme Court in NLRB v Fleetwood Trailer Co,
389 U S 375, 381 (1967), stated that
" the status of the striker as an employee
continues until he has obtained "other regular
and substantially equivalent employment." . If
and when a job which the striker is qualified be-
comes available, he is entitled to an offer of rein-
statement. The right can be defeated only if the
employer can show "legitimate and substantial
business justification." NLRB v. Great Dane
Trailers, 388 U S. at 34.80
80 NLRB v Great Dane Trailers, 388 U S 26 (1967)
129
In Laidlaw Corp, supra,8 i the Board relies on the
principles set forth in Fleetwood Trailer and held
that economic strikers who unconditionally apply
for reinstatement when their positions are filled by
permanent replacement are entitled to full reinstate-
ment upon the departure of replacements unless
they have in the meantime acquired regular and
substantially equivalent employment or the employ-
er can sustain its burden of proof that the failure to
offer reinstatement was for legitimate and substan-
tial business reasons.
In Harvey Engineering Corp, 270 NLRB 1290, 1292
(1984), the Board summarized an employer 's obligation
as
An employer is obligated to accord economic
strikers preferential status and to immediately rein-
state them on application when their previous or
substantially equivalent positions become available,
absent legitimate and substantial business justifica-
tions
"The employee bears the burden of showing that le-
gitimate and substantial business reasons (including the
hiring of replacements) justify his refusal to reinstate eco-
nomic strikers." NLRB v. W. C. McQuaide, Inc., supra at
531; NLRB v. Murray Products, 584 F 2d 934 (9th Cir
1978); Associated Grocers, 253 NLRB 31 (1980). While an
employer has no obligation to reinstate an economic
striker until the striker makes an unconditional offer to
return to work, the offer can be made on the striker's
behalf by a union, as well as by the striker, personally
NLRB v W. C. McQuaide, supra, Associated Grocers,
supra And an employer violates Section 8(a)(3) and (1)
of the Act by failing to immediately reinstate economic
strikers who have not been permanently replaced and
who make an unconditional offer to return to work or, if
they have been permanently replaced, when their previ-
ous or substantially equivalent positions becomes avail-
able Nolan Systems, supra; Associated Grocers, supra.
Local Unions 637 and 159 did not authorize the July
1983 strike at Respondent's Marietta and Coal Grove ter-
minals and, on 19 July, sent telegrams to the Respondent
stating that the strikers had been instructed to return to
work. The strike continued, however, and on 21 July,
Roger Hunt, president of Local Union 159, contacted J
Robert Ford requesting a meeting, which was arranged
for late on 25 July Accompanying Hunt to the meeting
were Bob Moody, a representative of the Ohio Confer-
ence of Teamsters who had been asked by Russell Al-
bright to assist in negotiations with Respondent, and two
Local Union 159 stewards, Bill Sparks and Homer Dick-
erson. Moody stated that after talking to union members
on the picket line, who said they would not go back to
work because Respondent had unilaterally changed the
contract, he attended the meeting in Respondent's Coal
Grove terminal, where he asked Ford to put the men at
both terminals back to work Moody testified that he did
8' Laidlaw Corp, 171 NLRB 1366 (1968), enfd 414 F 2d 99 (7th Cir
1969), cert denied 397 U S 920 (1970)
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not attach any conditions to the request According to
Moody, Ford declined to put the men back to work,
stating that he was acting on the advice of his attorneys
Moody testified that when he left the terminal after the
meeting, he told the pickets to go home and call in re-
porting for work and, to the best of his knowledge, that
is what they did Moody acknowledged that he did not
have any contact with Local Union 637 members (Mari-
etta terminal) before meeting with Ford on 25 July at the
Coal Grove terminal and, in fact, had not been aware
that the Marietta drivers were on strike until earlier in
the day of 25 July Moody testified that he did not recall
hearing Hunt on 25 July tell Ford that he was there only
to talk about Ford's signing the Ohio rider, nor did he
recall hearing either steward tell Ford on that occasion
that they would only go back to work on their terms.82
Roger Hunt testified that at the 25 July meeting,
Moody asked Ford to return the people to work, but
Ford said that he would not until he signed a contract
After the meeting, Moody instructed the employees to
take the picket signs down, which they did.83 Union
Stewards Sparks and Dickerson were not called as wit-
nesses
J. Robert Ford testified that at the 25 July meeting,
Union Steward Sparks said that to get the men back at
work the Respondent would have to restore the benefits
it had taken away He acknowledged that Moody made
the statement that, "we needed to get the men back to
work," but that he, Ford, considered that to be only -a
goal, not an offer to return to work. According to Ford,
Moody made no mention of the Marietta terminal or
Local Union 637 Ford denied telling Moody that on the
adivce of his attorneys, he would not put the men back
to work. Ford said he met again with Moody on 27 July,
but no mention was made at that meeting of a return to
work At the meeting on 28 July, however, the Union in-
dicated it was interested in getting the men back to work
as soon as possible
Ford testified that the picket line was down at Coal
Grove on 26 July, and that some men called the Compa-
ny on 25 or 26 July inquiring about work, but that he
did not talk to any of them personally, and did not con-
sider the calls to be sincere, since the terms the Compa-
ny had on the table were not acceptable to the Union.
The employees who called in were told no work was
available at Coal Grove 84 He said that he did not re-
ceive any written requests from employees asking to
return to work. He did not have any contact at all with
Marietta local union officials about the Marietta drivers
returning to work The picketing stopped at the Marietta
terminal sometime in July
Ford testified concerning the status of a number of
drivers and mechanics. He said he did not consider
Leslie Burd to have been on strike, as he was off work
because of illness, later filed a workman's compensation
82 Moody acknowleged that the 25 July meeting lasted 2 to 2-1/2
hours, and that Ford and the stewards talked quite a long time about
grievances Moody said he did not get involved in that conversation
82 Hunt said he believed the picket signs were down before he and
Moody went inside the terminal for the meeting with Ford
84 Ford conceded there was work available at the Nitro, West Virginia
terminal
claim, and retired effective 12 July 1983 Ellis Davis was
off sick, then on a combined vacation, and returned to
work on 9 August Tex Devore was also on vacation and
returned to work around 9 August. Boyce A Dotson,
who was probably on vacation from 1 August to 28
August, returned to work on 28 August and is still work-
ing William Harold Grimm returned to work on 22 Sep-
tember, when he leased his tractor. to Respondent, but in
August he took a load to California with another driver
Fred Mann retired after the strike started. Roy Adams, a
mechanic, retired on 23 August, Larry Allen, another
mechanic, returned to work in August Charles Dicus
Jr., a mechanic who was on strike in August, retired on
31 January 1984 Craig Ervin and Ronald LeMaster
were on strike, Robert Van Derhoof retired Homer
Dickerson asked to come back to work and was reinstat-
ed. Glenn Carr, a Coal Grove driver who went on
strike, did not contact the Company and was not asked
to return to work Also not called to come back to work
were Don Howard, George Menhouse, Chester Napier,
McGinnis, Meeks, Elmore Napier, Lester Napier, Wayne
Riffe, Robert Smith, Harry Sparks, Charles Spears,
Truesdell, Tommy Ward, Burt Wheeler, Clayton Wheel-
er, and Bill Sparks J Robert Ford testified he was not
sure about the mechanics.'
Ford testified that he was unaware that any employee
contacted the Company between 26 July and 3 August
asking to return to work. After 3 August, said Ford, "all
employees who contacted me were reinstated; no one
who made a request was not reinstated "85
Ford testified that the Respondent terminated its oper-
ations at Coal Grove about 18 July because it was neces-
sary to survive. The Marietta terminal was closed about
21 July because operations could not be carried on from
there while picketing was going on 86 According to
Ford, after the Coal Grove terminal was closed, there
was no work available at Coal Grove, most of the work
was in the Charleston, West Virginia area, at Nitro He
said there was no work available at the Marietta terminal
after it closed, and the Parkersburg, West Virginia termi-
nal did not open until sometime in August Ford said he
did not reopen the Marietta terminal after the removal of
the picket line because he believed the drivers were still
on strike against the Company, all the equipment had
been moved out, a lease for the Parkersburg facility had
been signed, and the Company was trying to sell the
Marietta facility.
According to J Robert Ford, the drivers who re-
turned to work in August and September were compen-
sated at whatever rate was being paid at the terminal
where they were assigned If they were assigned to an
Ohio terminal, drivers were paid $10 50 an hour and 25
cents a mile. If they were assigned to the Nitro, West
Virginia terminal, they were paid the same as other
Nitro drivers, 20 percent of gross revenue if they drove
85 Ford said there may have been some Coal Grove drivers whose re-
quest for reinstatement was not granted, but he could not identify them
86 According to J Robert Ford, Ashland Oil, one of the large Marietta
accounts, would not let Respondent load at the nearby Ashland Oil facili-
ty while there were pickets around Respondent's Marietta terminal
FORD BROS.
a company truck, 65 percent if they drove their own
trucks.
Of the 52 employees named in the complaint as having
participated in the strike and alleged to have made un-
conditional offers through the Union to return to their
former positions of employment, 12 were called as wit-
nesses by the General Counsel.87 The General Counsel
also called another employee who participated in the
strike, but who was not a member of the Union and
whose name was not listed in appendix A of the com-
plaint 88 Six of the thirteen employees who testified said
they returned to work, four for Respondent,89 and two
for Ford Maintenance and Cleaning Corporation 90
Seven of the employees who testified said they were not
reemployed 91 None of the former Marietta terminal em-
ployees who testified were reemployed 92 Three of the
employees who were reemployed claimed they did not
participate in the strike 93 Two of the employees who
were not reemployed made a similar claim 94 Ten of the
employees who testified said they contacted Respond-
ent95 on July 26 or soon thereafter indicating their readi-
ness to return to work. One employee, William Stover,
testified he was off work because of illness from 17 to 21
July, and that he contacted Respondent on 21 July and
started work that day Two employees apparently did
not contact the Respondent at all after the strike
ended 96
I find that the General Counsel has proven by a pre-
ponderance of the evidence that on 25 July 1983 the
Teamsters Union, acting through its representative,
Robert Moody, made an unconditional request to J
Robert Ford, Respondent's president, to reinstate to their
former positions the union members then engaged in eco-
nomic strikes at Respondent's Coal Grove and Marietta,
Ohio terminals. I further find that J. Robert Ford imme-
diately rejected the request, stating that he was acting on
the advice of his attorney
Having had the opportunity to observe the demeanor
of the witnesses while testifying, and to weigh the proba-
bility or improbability of their testimony in relation to
the established facts and testimony of other witnesses, I
conclude that Robert Moody was a credible witness His
testimony that he unconditionally requested that the men
be put to work was corroborated by Roger Hunt, the
president of Local Union 159 Moreover, J Robert Ford
testified that Moody said, "we needed to get the men
87 The names of 52 employees are listed in appendix A of the com-
plaint Of the employees named, 16 are listed as employees at Respond-
ent's Marietta terminal , the balance at its Coal Grove terminal The 12
striking employees who testified were Paul Bonnette, Ellis E Davis, Tex
Devore, William H Grimm, Boyce Meeks, William Stover, Charles
Dacus, Ronald M LeMaster, Harold Bonnette, Lester Jackson, William
McCoy, and Larry Quillen
88 Orville Spence
89 Tex Devore, Ellis E Davis, William Stover, and William H
Grimm
90 Ronald M LeMaster and Orville Spence
9i Charles Dicus, Paul Bonnette, Boyce Meeks, Larry Quillen, Lester
Jackson , William McCoy , and Harold Bonnette
92 Larry Quillen, Lester Jackson, William McCoy, and Harold Bon-
nette
93 Ellis E Davis, William Stover, and William H Grimm
94 Charles Dicus and Lester Jackson
95 Keith Lewis, Russell Fief, J Robert Ford, or Carl Hamilton
16 Paul Bonnette and Boyce Meeks
131
back to work," and that was followed up by union inter-
est on 28 July in getting the men back to work as soon
as possible. I further credit Moody's testimony that J
Robert Ford refused the request to put the men back to
work, stating he was acting on the advice of his attor-
ney In that regard, I do not credit J Robert Ford's
denial that he made that statement Ford had used the
occurrence of the strike as the occasion for halting oper-
ations at the Coal Grove and Marietta terminals, without
giving the Union notice or an opportunity to bargain,
and was in the process of, or had already completed,
transferring operations to West Virginia, where wages
could be paid to drivers according to the percentage of
gross revenues method which Respondent had sought all
along for its Ohio operations Under these circumstances,
I find it stretches credibility to accept that Ford would
just as quickly reverse course and return to the stituation
as it existed before, giving up the method of pay compu-
tation which it is apparent that he wanted from the
Teamsters from the beginning.
The facts do not support J Robert Ford's contention
that Moody was just stating a goal, not making an offer
that the men were ready to return to work without con-
ditions, and that the strike continued on after 25 July.
Ford knew that the strike was not sanctioned by the
Teamsters Union, and that the leadership of the two
local unions had tried, without success, at the outset to
get the strikers to return to work. At no time prior to 25
July did the Teamsters Union seek to attach conditions
to the return of the strikers to their jobs. The Union not
having previously taken a contrary position, the request
by Moody made without conditions, on 25 July, that Re-
spondent put the men back to work did not represent a
change in the Union's position. The Union not having
previously attached conditions to the return to work by
the men, and Moody attaching none to his request,
Moody's request to Respondent to reinstate the strikers
cannot reasonably be construed to be anything other
than what it obviously was. an unconditional offer to
return to work Concurrently with Moody's uncondition-
al offer that the strikers would return to work, the strike
ended. Picketing ceased by the morning of 26 July at
both terminals,97 and neither picketing nor any other
form of strike action resumed subsequently, even though
Respondent took no action to reemploy the vast majority
of the strikers Further establishing that the strike had
ended, some of the strikers began calling in starting 26
July, asking for work 98
II J Robert Ford testified that there was no picket line at the Coal
Grove terminal on the morning of 26 July, and that the picket line came
down at the Marietta terminal sometime in July Several Marietta drivers
testified that they contacted Respondent on 26 July, after the strike
ended, to report in for work
98 The unconditional offer to return to work had been made on the
strikers ' behalf by their collective -bargaining representative , the Team-
sters Union , and there was no requirement that each striking employee
make a redundant personal offer , especially since it would have been
futile, as J Robert Ford had already rejected the Union's offer Never-
theless, a few employees did call in, calls which J Robert Ford, in his
testimony , characterized as lacking in sincerity There is no evidence that
any of the employees did or said anything inconsistent with an uncondi-
tional offer to return to work, and Ford's opinion of their state of mind
amounted to nothing more than mere conjecture
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent argues that Moody's testimony should not
be given weight because he knew nothing of the back-
ground of the strike, he was unaware that the Marietta
terminal employees were on strike and had no contact
with them prior to 25 July, he did not know the position
of the Ohio Conference or Local Union 159 with regard
to the strike, he did not know what the position of the
strikers would be with reference to returning to work, or
if his superiors would even approve a return to work
Says the Respondent of Robert Moody, "[u]nder these
circumstances, it is not possible to conclude that the
thought of an offer to return to work would ever, cross
Mr Moody's mind, let alone an unconditional offer He
was unprepared to make any decisions or to take any ac-
tions "
It is not the prerogative, however, of an employer to
challenge or second guess the credentials of a particular
union representative or his authority to act as the bar-
gaining representative of the members of the appropriate
bargaining unit for which the union is the exclusive col-
lective-bargaining representative, or his authority to
make offers or commitments on behalf of the members.
In a collective-bargaining situation, it is up to the collec-
tive-bargaining representative of the employees to make
good on any offer or commitment which he might make
How that is done is the union's affair, not the employ-
er's The employer is not privileged to reject or disre-
gard an offer or commitment because of a belief that an
offer by the collective-bargaining representative will not
be supported by the bargaining unit members.
Thus, in this case, Respondent cannot escape the con-
sequences of failing to reinstate economic strikers on
whose behalf the Union who made an unconditional
offer to return to work and who abandoned their strike,
on the theory that Moody's purposes were unclear be-
cause he did not know what he was talking about, and
had not cleared his offer, if that is what it was, in ad-
vance with the strikers involved, the local unions, or
even his superiors There was no mistaking the literal
meaning of Moody's offer to J Robert Ford It was an
unconditional offer made on behalf of striking union
members, the "men," to return to work 99 Instead of re-
jecting it out of hand, which Ford had no right to do, it
was his obligation to reciprocate as the law requires of
an employer when economic strikers make an uncondi-
tional offer to return to work and abandon their strike.
If, after meeting its legal obligations, the Respondent
found that Moody was unable to deliver on his uncondi-
tional commitment as collective-bargaining representa-
tive that the union members would return to work, argu-
ably, Respondent could disregard Moody's offer and
proceed on the assumption the strike was still continuing.
By rejecting the offer out-of-hand at the time it was
made, however, Respondent precluded the Union from
demonstrating whether or not it was able to gain compli-
ance by its members with the offer which it had made on
their behalf. 10 0
99 It is immaterial , of course, whether the offer was in writing or was
made orally
loo Respondent's rejection of the offer notwithstanding, there is no in-
dication in the record that the striking employees did not abandon their
There is no evidence here that any of the economic
strikers were permanently replaced Of the 52 employees
named in appendix A of the complaint as having partici-
pated in the July 1983 strike at Respondent's Coal Grove
and Marietta terminals, there is evidence in the record
that only 4 were eventually reemployed by Respondent,
and 2 more by Ford Maintenance and Cleaning Corpora-
tion.
Respondent argues in its brief that, as testified to by its
president, "every single striker who made a valid request
for work was provided with work " Respondent says
that it sought out and reemployed Ellis Davis on 8
August 1983 Although LeMaster, Devore, and Spence
were initially told there was no work available because
equipment had been moved and customers lost, they
were recalled when work was located William Stover
was told to report to work when he felt better, and was
provided work when he did Charles Dicus was invited
to make a formal request for work. According to Re-
spondent's brief, 23 strikers returned to work, retired, or
resigned, while others, as far as Respondent knows, re-
mained on strike. Says Respondent in its brief, no work
was available for a short period after the strike and much
work was lost, but no striker was told after July that no
work was available, and all who wanted to return to
work were reemployed when work became available, in-
cluding Union Steward Homer Dickerson Respondent
concedes only that some strikers who returned to work
were reemployed at different terminals, or placed on the
payrolls of a different corporation 101 Respondent con-
cludes that it should be congratulated for finding work
somewhere for these employees
The immediate problem with Respondent's theory of
its case is that all the strikers made a valid request for
reinstatement, not just the few who either contacted Re-
spondent or were contacted by Respondent All the eco-
nomic strikers were included in the Union's uncondition-
al offer to return to work and they were entitled to their
former positions or, if those positions were no longer
available for legitimate and substantial business reasons,
to substantially equivalent positions when they became
available. The Respondent has the burden of proving
that the strikers' former positions or substantially equiva-
lent positions, were unavailable for legitimate and sub-
stantial business reasons
Respondent has failed to meet its burden of proof be-
cause it failed to show that there were legitimate and
substantial business reasons which precluded it from of-
fering the economic strikers their former positions on or
about 26 July, much less, equivalent positions at any late
time. The strike was of short duration, lasting 7 days at
the Coal Grove terminal (18 to 25 July) and 6 days at
the Marietta terminal (19 to 25 July). While the possibili-
ty no doubt exists that Respondent lost business during
the period of the strike, it offered no evidence to support
the uncorroborated testimony of its president on this
strike and would not have been prepared to return to work without con-
ditions
101 Respondent contends there were sound business reasons for creat-
ing Ford Maintenance and Cleaning Corporation, by which several me-
chanics were ultimately employed
FORD BROS 133
point No contracts or correspondence were introduced
to establish the nature of Respondent's business relation-
ship with any of its customers, nor to show that an exist-
ing business relationship was terminated or altered in any
meaningful way because of the strike. No evidence was
introduced to show the amount of business lost, or to
substantiate Respondent's need for fewer drivers or me-
chanics The revenue figures and numbers of loads car-
ried, as stipulated into evidence by the parties, show a
drop in August for the Coal Grove, Nitro, and Parkers-
burg terminals combined, as compared to those of July
for Coal Grove, Nitro, and Marietta combined Howev-
er, the strike was over in July, and no evidence was in-
troduced to establish the cause of the decrease in busi-
ness in August We are left to speculate that it was the
result of the strike, when it may have resulted from any
number of other factors, or a combination of factors. 102
The point here is that whatever the cause may have
been, the burden of proving that it was related to the
strike and reduced the availability of jobs rests on the
Respondent, and Respondent failed to meet that burden
Finally, while J Robert Ford testified that there were
business reasons for setting up Ford Maintenance and
Cleaning Corporation, he did not elaborate on what they
were or offer any documentary evidence to support his
claim and, in any event, he acknowledged that Respond-
ent could have done the same work, saying only that it
would have been more difficult
In summary, on 25 July 1983, the Union made an un-
conditional offer to return to work on behalf of its mem-
bers who were engaged in an economic strike against
Respondent at the latter's Marietta and Coal Grove,
Ohio terminals, and by the morning of 26 July the strike
was abandoned None of the strikers had been perma-
nently replaced by Respondent. Respondent's obligation
was to immediately reinstate the strikers to their former
positions, or on a showing that those positions were no
longer available for legitimate and substantial business
reasons, to equivalent positions as they became available.
Respondent failed to meet its burden of proof. It made
no showing that there were legitimate and substantial
business reasons why the strikers' former positions, or
substantially equivalent positions were unavailable at the
time the strike ended, or at any later time There is no
evidence that Respondent accorded the economic strik-
ers a preferential status or maintained a preferential
hiring list In the absence of proof that the economic
strikers who were reemployed were reinstated to their
former positions, or to substantially equivalent positions,
and that there were legitimate and substantial business
reasons why Respondent did not offer reinstatement to
their former positions, or substantially equivalent posi-
102 Among the possibilities that readily come to mind, there may have
been a general downturn in business during August, on a seasonal basis,
or for other reasons, or it may have resulted in some degree from the fact
that Respondent chose to relocate its terminals from Ohio to West Vir-
ginia, a decision which, itself, for reasons to be stated, constituted an
unfair labor practice Respondent has offered no evidence to corroborate
its claim that a 6- or 7-day strike forced it to decide to permanently close
its Coal Grove and Marietta terminals, while other evidence of the cir-
cumstances suggests that the decision was a discretionary one intended to
take advantage of what Respondent apparently perceived to be a more
favorable basis for paying labor costs
tions, to those economic strikers who were not reinstat-
ed, Respondent committed unfair practices , in violation
of Section 8(a)(1) and (3) of the Act.
C. Subcontracting Work at Respondent's Cincinnati
and Columbus Terminals
The General Counsel alleges that Respondent violated
Section 8(a)(1) and (5) of the Act by subcontracting bar-
gaining unit work at its Cincinnati and Columbus, Ohio
facilities during 1983. According to the General Counsel,
drivers leased to F & B Transport, owned by Respond-
ent's president, J. Robert Ford, and his wife, performed
work previously performed by bargaining unit employees
in Columbus, and drivers directly employed by F & B
Transport performed bargaining unit work in Cincinnati.
Noting that J Robert Ford never gave any notice of the
subcontracting to the local unions whose members were
affected, the General Counsel concludes that Respondent
violated the Act because subcontracting of bargaining
unit work is a mandatory subject of bargaining. 103
Respondent denies that it subcontracted any work out
of its Columbus terminal F & B Transport had author-
ity to carry a commodity which Respondent did not, but
did not have equipment or drivers. It therefore contract-
ed with Gregory Brothers, a fleet owner, to haul the
commodity involved under F & B's authority. Gregory
Brothers, operating under F & B's authority, also hauled
clay products and asphalt for Jetcoat, one of Respond-
ent's customers However, the amount involved was
minimal and was hauled during a peak season, when Re-
spondent was able to make more profitable use of its
equipment elsewhere In any event, says Respondent,
there never was a subcontract between it and F & B
Transport On the other hand, Respondent admits, Re-
spondent did subcontract during the the late summer of
1983 in Cincinnati with F & B Transport to haul peak,
overflow business, which Respondent was unable to
handle. Finally, notes Respondent, the amount of busi-
ness handled by F & B Transport in Columbus was de
minimis, and almost too small to measure in Cincinnati.
According to the unrebutted testimony of J Robert
Ford, F & B Transport, Inc is a corporation which he
and his wife own It was formed in late 1981 or early
1982, and was licensed to operate in 1983. In the summer
of 1983 it leased drivers and tractors to Ford Brothers
and, operating under Ford Brothers' ICC and Ohio
Public Utilities Commission authority, it began hauling
freight out of Ford Brothers' Cincinnati Terminal. Ford
testified that F & B drivers did strickly overflow busi-
ness which Respondent could not handle From July to
September 1983, F & B employed three to four drivers
in Cincinnati, who were paid 20-percent of gross revenue
for runs dispatched from the Cincinnati terminal. It has
not operated in Cincinnati since September 1983. Ford
denied that any work in Cincinnati previously performed
by Respondent was transferred to F & B. It was stipu-
lated during the trial that during August 1983, F & B
drivers operating out of the Cincinnati terminal carried
ioa Citing Fibreboard Corp v NLRB, 379 U S 203 (1964), Westing-
house Electric Corp, 150 NLRB 1574 (1965)
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 loads, with total billings of $2,533 19, as compared to
383 loads with total billings of $115,649 18 carried by
Respondent's drivers operating out of the same terminal
during the same month There was no evidence intro-
duced establishing that any of Respondent's drivers at its
Cincinatti terminal were laid off from work during
August or September 1983.
J. Robert Ford gave unrebutted testimony that F & B
Transport in 1983 had neither drivers nor equipment in
Columbus, only the operating authority and permits.
F & B had no paid employees, other then Ford and his
wife Gregory Brothers leased Tractors, trailers, and
drivers to F & B,, and hauled loads under F & B's au-
thority and permits F & B provided the insurance and
did the billing, Gregory Brothers received a percentage
of gross revenue According to Ford, he first became in-
volved with Gregory Brothers in 1983, when they
hauled railroad rails under F & B's general commodity
authority, a type of authority which Respondent did not
have. He acknowledged that Gregory Brothers hauled
cargoes for Jetcoat, a customer of Respondent's, but said
that the cargoes were clay, which required specialized
equipment which Respondent did not have, and tar prod-
ucts from Ironton, Ohio, and Detroit, Michigan, the
shipping rates for which were low and Respondent's
equipment could more profitably be used for other busi-
ness. Ford denied there were labor savings involved, but
he conceded there may have been some reduction in the
work Respondent performed for Jetcoat in 1983 He
claimed that F & B's gross revenue for 1983 was
$125,000, compared to that of Ford Brothers, which was
in excess of $6,500,000 While two Ford Brothers' driv-
ers at the Columbus terminal were laid off at various
times before 4 June, the parties stipulated that no Ford
Brothers employees at its Columbus terminal were laid
off from 4 June through 30 August 1983. However, it
was stipulated that F & B performed work for Jetcoat
from March through August 1983, and J Robert Ford
conceded there could have been very sporadic layoffs of
Ford Brothers' drivers because of transfer of Jetcoat
work to F & B The parties also stipulated that during
the months of June through August, F & B carried 67
loads out of the Columbus terminal, with total billings of
$49,309.32, compared to 929 loads carried by Ford
Brothers with total billings of $245,330 64
J Robert Ford admitted that he did not discuss
F & B's activities in Cincinnati or Columbus with Team-
sters union officials
Article 3(b) (Subcontracting) of the Central States
Area Tank Truck Agreement for the period of Novem-
ber 15, 1979, to November 14, 1982, provided 104
For the purpose of preserving work and job oppor-
tunities for the employees covered by this Agree-
ment, the Employer agrees that no work or services
presently performed or hereafter assigned to the
collective bargaining -unit will be subcontracted,
104 Subsec (a), which the agreement stated would not be enforced
until found valid by the courts, provided that the employer agreed to re-
transferred, leased, assigned or conveyed in whole
or in part of any other plant, person, or non unit
employees, unless otherwise provided in this agree-
ment Overflow loads may in any event be deliv-
ered by drivers other than the Employer's employ-
ees provided all provisions of this contract are ob-
served Loads may also be delivered by other
agreed to methods or as presently agreed to
There is no evidence of record that Respondent en-
gaged in any subcontracting of bargaining unit work
during the term of the agreement.
In Milawukee Spring Division (Milwaukee Spring II),
268 NLRB 601, 602 (1984), sub nom Auto Workers Local
547 v. NLRB, 765 F.2d 175 (D C. Cir 1985), the Board
said-
Section 8(a)(5) and 8(d) establish an employer's
obligation to bargain in good faith with respect to
"wages, hours, and other terms and conditions of
employment " Generally, an employer may not uni-
laterally institute changes regarding these mandato-
ry subjects before reaching a good-faith impasse in
bargaining Section 8(d) imposes an additional re-
quirement when a collective-bargaining agreement
is in effect and an employer seeks to "modif[y]
the terms and conditions contained in" the contract:
the employer must obtain the union's consent before
implementing the change If the employment condi-
tions the employer seeks to change are not "con-
tained in" the contract, however, the employer's
obligation remains the general one of bargaining in
good faith to impasse over the subject before insti-
tuting the proposed change
Applying these principles in Milwaukee Spring 11,105
which involved the employer transferring work to a non-
union facility where labor costs would be lower, 'the
Board found that neither the wages and benefits provi-
sions nor the recognition clause contained in the collec-
tive-bargaining agreement required that work be pre-
served at the facility covered by the agreement, and that
no other clause in the agreement limited the employer's
decision-making in that regard. Quoting from the Sev-
enth Circuit in the University of Chicago case, the Board
said i06
[U]nless transfers are specifically prohibited by the
bargaining agreement , an employer is free to trans-
fer work out of the bargaining unit if (1) the em-
ployer complies with Fibreboard Paper Products v.
NLRB, 379 U S 203, 85 S Ct 398. . . (1964), by
bargaining in good faith to impasse , and (2 ) the em-
ployer is not motivated by anti-union animus, Tex-
tile Workers v Darlington Mfg Co, 380 U.S 263, 85
S Ct 994, . . . ( 1965)
In Otis Elevator Co, 269 NLRB 891 (1984), the Board
narrowed the scope of the area subject to mandatory
frain from using the services of any person who does not observe the 105 Milwaukee Spring II, supra at 604
wages, hours, and conditions of employment established by the labor 106 University of Chicago, 210 NLRB 190 (1974), enf denied 514 F 2d
unions having jurisdiction over the type of service performed 942 (7th Cir 1975)
FORD BROS
bargaining under Section 8(d). The Board said that "the
critical factor to a determination whether the decision is
subject to mandatory bargaining is the essence of the de-
cision itself, i e , whether it turns upon a change in the
nature or direction of the business, or turns upon labor
costs, not its effect on employees nor a union's ability to
offer alternatives 107 In Otis Elevator Co, the Board held
that- 1'8
[E]xcluded from Section 8(d) of the Act are deci-
sions which affect the scope, direction, or nature of
the business. For example, we are aware that in the
past the Board's decisions reflected an almost reflex-
ive response to "subcontracting" decisions as requir-
ing bargaining We emphasize, again, that the appel-
lation of the decision is not important Fibreboard
"subcontracting" must be bargained not because the
decision turns upon the label, but because in fact the
decision turns upon a reduction of labor costs In
First National Maintenance the Court explained that
its holding in Fibreboard derived from the fact that
the employer's decision to subcontract did not turn
upon a change in the basic operation, but rather
turned upon a reduction of labor costs.
Included within Section 8(d), however, in
accordance with the teachings of Fibreboard, are all
decisions which turn upon a reduction of labor
costs. This is true whether the decision may be
characterized as subcontracting, reorganization,
consolidation, or relocation, if the decision in fact
turns on direct modification of labor costs and not
on a change in the basic direction or nature of the
enterprise
In a subsequent case, Ausable Communications, 273
NLRB 1410 (1985), the Board considered the question of
whether the decision of the employer in that case to sub-
contract installation work orders without affording the
union an opportunity to bargain violated Section 8(a)(5)
of the Act. In holding that it did not, the Board said-
The record shows that in September 1981 the Re-
spondent completed installing a satellite disc that
added eight new channels to the services offered to
customers As a result the Respondent experienced
an unsually large influx of installation work orders
Rather than hire more unit employees, the Re-
spondent decided to subcontract the additional in-
stallation work Based on our decision in Otis Eleva-
tor Co, 269 NLRB (1984), we find that the Re-
spondent's decision to handle the increased work-
load affected the scope of the business and was not
a bargainable item
"[I]t is well settled that notwithstanding the termina-
tion of a labor contract, the parties, pending its renewal
107 Otis Elevator Co , supra at 892 In his concurring opinion in Fibre-
board Corp , Justice Potter Stewart said that decisions concerning the
commitment of investment capital and the basic scope of the enterprise
impinge only indirectly upon employment security and should be ex-
cluded from the area
101 Id at 893
135
or renegotiation, have the right and obligation to main-
tain existing conditions of employment. Unilateral
changes therein violate the statutory duty to bargain in
good faith Shell Oil Co, 149 NLRB 283, 287 (1964). In
the instant case, however, while there was an article in
the expired Central States Area Tank Truck Agreement
dealing with subcontracting, insofar as the record indi-
cates, Respondent did not engage in any subcontracting
during the term of the contract, and no method of deal-
ing with subcontracting, whether based on the provisions
of the agreement, or other procedures, can be said to
have become "an established employment practice, and,
as such, a term and condition of employment " Ibid I
conclude, therefore, that the subcontracting article of the
Agreement had not risen to the level of a condition of
employment and, accordingly, Respondent was not obli-
gated to comply with the subcontracting provisions of
the Agreement during the hiatus between contracts
The "subcontracting" complained of in this case took
three forms (1) Handling of overflow work at Respond-
ent's Cincinnati terminal in the summer of 1983 by
F & B drivers leased to Respondent (and paid less than
Respondent's regular drivers for the same work), using
F & B equipment also leased to Respondent, or Ford
Brothers equipment , (2) assignment of work originating
from Respondent's customer or customers, dispatched
from Respondent's Columbus terminal during 1983 to
F & B, which, in turn leased drivers and equipment
from Gregory Brothers, because Respondent lacked
either the legal operating authority to haul the type of
cargo involved, or lacked the specialized equipment
needed for the job, or, (3) assignment of work previously
handled by Respondent out of its Columbus terminal, for
an established customer, to F & B, which, again, in turn
leased drivers and equipment from Gregory Brothers,
during the same period of time, ostensibily to free Re-
spondent's drivers to handle other more profitable work
Inasmuch as any subcontracting, or transfer of work
out of the bargaining unit, in which the Respondent en-
gaged during 1983 with F & B Transport, did not in-
volve changes of employment conditions which were
contained in a collective-bargaining agreement and sur-
vived the termination of the agreement, the Respondent's
obligation to bargain with the Union, if it existed at all,
was only the general one of bargaining in good faith to
impasse. Milwaukee Spring II, supra
To the extent that Respondent's decisions to subcon-
tract or transfer work affected the scope, direction, or
nature of its business they were not subject to mandatory
bargaining at all Otis Elevator, supra Into this category
fall Respondent's decisions to use leased F & B drivers
and equipment to handle overflow work in Cincinnati,
rather than to hire additional employees to work for Re-
spondent (A usable Communications, supra), and to trans-
fer work in Columbus, for which Respondent lacked the
legal authority to transport the commodity or the neces-
sary equipment, and, which had not been bargaining unit
work in the past, in any event, to F & B Transport In
both instances, the decisions affected the scope of Re-
spondent's business and were not bargainable issues
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Only those decisions to subcontract or transfer bar-
gaining unit work in Columbus to F & B Transport
which turned on a direct modification or reduction of
labor costs were bargainable. Otis Elevator Co., supra
Into this last category falls the subcontracting or transfer
to F & B Transport in Columbus of Jetcoat work which
had previously been handled by Respondent's drivers,
for the stated reason of freeing Respondent's drivers to
handle more profitable work Clearly, the decision here
turned on a reduction in labor costs It is implicit in Re-
spondent's explanation that its labor costs were lower
when F & B did the work than when Respondent did it
using its own employees, thus to lower its labor costs,
and increase its profits, Respondent transferred the work
to F & B Transport 109 Under the circumstances, be-
cause Respondent's decision to subcontract or transfer
Jetcoat work previously handled by the bargaining unit
in Columbus turned on a direct reduction in labor costs,
Respondent was required to notify the Union and afford
it an opportunity to bargain By failing to do so, Re-
spondent violated Section 8(a)(5) and (1) of the Act
D Closure of Respondent 's Marietta and Coal Grove
Terminals
The General Counsel contends that by relocating most
of its operations from its Marietta and Coal Grove, Ohio
terminals, to facilities in Parkersburg and Nitro, West
Virginia, following commencement of the July strike,
without giving the Union advance notice or an opportu-
nity to bargain, Respondent violated Section 8(a)(1) and
(5) of the Act The General Counsel argues that Re-
spondent's motive was to avoid any further obligation to
deal with the Union, as was demonstrated by the cre-
ation of Ford Maintenance and Cleaning Corporation,
which was nothing more than a continuation of Re-
spondent's Coal Grove maintenance operation, designed
to bypass its duty to negotiate with the Union. Creation
of an alter ego, says the General Counsel, did not relieve
Respondent of its obligation to recognize and bargain
with the Union
109 I do not credit J Robert Ford's statement that there were no labor
savings involved He acknowledged that the work, although transferred
to F & B, was actually performed by Gregory Brothers, which provided
drivers and equipment and operated under F & B authority, and which
was paid a percentage of gross revenue Ford testified that having
F & B do the work rather then having it done by Ford Borthers' drivers
would be a "wash" which would not increase Respondent's profits, but
he went on to describe the work as "[un]attractive business ratewise,"
and said there was more attractive business which Respondent (Ford
Brothers) could handle According to Ford , he was getting rid of less
profitable Jetcoat work in order to free Ford Brothers' equipment to do
more profitable work None of this, however, was supported by any cor-
roborating evidence The record does show, however, that in March and
April, when F & B was doing Jetcoat work, there were two Ford
Brothers drivers on layoff at various times, who, presumably could have
been recalled and put to work hauling for Jetcoat This circumstances,
alone , puts in doubt the sincerity of Ford 's claim that he was freeing Re-
spondent for more profitable work It is evident that as owner of both
Respondent and F & B , J Robert Ford concluded he could increase his
profits by transferring Jetcoat work to F & B, which had lower labor
costs than Respondent In April and May 1983 , as he admitted, that could
have been a factor in the layoff of two Ford Brothers drivers From June
through August 1983 there were no layoffs of Ford Brothers drivers, but
there is nothing in the record to show that it was anything more than
fortuitous that there was enough work to keep Respondent 's drivers busy
even with some Jetcoat work still being transferred to F & B
The Charging Party contends that Respondent was
motivated by antiunion animus in closing the two termi-
nals and relocating the work, and that its action had the
reasonable, realistic, and foreseeable effect of chilling un-
ionism in the remaining terminals At the very least,
argues the Charging Party, the Respondent had the obli-
gation to notify the Union of its intent to divert work
and close its Coal Grove and Marietta terminals, and to
afford the Union an opportunity to bargain over the ef-
fects of its decision
Respondent counters that it had the right to close its
facilities and transfer work, but it denies that any of Coal
Grove's business was transferred, claiming, instead, that
Coal Grove's business was lost as a result of the strike
Respondent agrees that it partially closed Coal Grove
and transferred the equipment elsewhere for potential
use, but, it argues, these were strictly measures to protect
its business and its investment in the face of a crippling
strike, which Respondent contends continued on through
August, and afterward. In any event, even if the strike
had ended and the Union had requested bargaining, Re-
spondent argues, at most impact bargaining would have
been required Respondent concedes that during the
strike it moved its Marietta terminal operations to Par-
kersburg, West Virginia, but says that it was forced to
make the move because the strikers physically prevented
it from operating out of the Marietta terminal, and one
of its primary customers, Ashland Oil, refused to be
served out of the picketed Marietta facility. Respondent
asserts that in making the move, it became committed to
a lease for the Parkersburg facility, and attempted to sell
the Marietta property. Respondent states that the move
was complete before 27 July, when the Union alleges the
stirke ended, and that it was a wholly legitimate move
which Respondent had no obligation to reverse
Respondent removed its trucking equipment from its
Coal Grove terminal on 25 July, with most of it being
taken to its terminal in Nitro, West Virginia, and the rest
to either its facility in Bloomfield, Ohio, or its terminal in
Columbus, Ohio Truck operations were not resumed
from the Coal Grove terminal until the spring of 1984;
however, after the picketing at Coal Grove was ended
on 26 July, Respondent apparently used the Coal Grove
terminal as a location to store and maintain equipment,
and from which to dispatch equipment from time to time
to be used in hauling cargo Drivers formerly assigned to
the Coal Grove terminal who were rehired after 26 July
were assigned as drivers working out of the Nitro, West
Virginia terminal, but, on occasion, some testified, they
left or picked up equipment at the Coal Grove terminal
Revenue from Coal Grove operations dropped from
$150,567 63 (543 loads) for the 20 June period, to
$19,918 52 (28 loads) for the 26 July to 26 August period.
There was also a drop in revenue from the Nitro, West
Virginia terminal operations, from $125,316.46 (221
loads) for the 20 June to 25 July period, to $84,931 85
(194 loads) for the 26 July to 26 August period. Revenue
from the Columbus, Ohio terminal operations increased
from $74,677 17 (284 loads) for July, to $90,136.93 (324
loads) in August
FORD BROS 137
Respondent removed its equipment from its Marietta
terminal on 21 July to a leased location in Parkersburg,
West Virginia„ from which it began operations in
August Its attempts to sell the Marietta terminal were
unsuccessful, according to J. Robert Ford The Parkers-
burg terminal was closed and the Marietta terminal re-
opened in December 1983 Revenue from Marietta termi-
nal operations for the 20 June to 22 July period were
$60,107 62 (377 loads), with no revenue or loads carried
during the 22 July to 26 August period Revenue from
the Parkersburg, West Virginia terminal operations for
the period 22 July to 26 August were $52,969 94 (378
loads carried) The record contains no other revenue fig-
ures for other periods for either terminal.
It is undisputed that Respondent did not notify the
Union or give it an opportunity to bargain over its deci-
sion to transfer the operations of its Marietta and Coal
Grove terminals, nor did it give the Union an opportuni-
ty to bargain over the effects of its decision
J. Robert Ford testified that he decided to remove his
Company's equipment from the Coal Grove terminal, be-
cause the Company was losing business by not respond-
ing to its customers while its equipment had been tied up
on the Coal Grove terminal lot for a week Although
contending that a lot of business was lost, Ford acknowl-
edge that where "economically feasible" some of Coal
Grove's business was handled out of the Nitro terminal,
"where we had drivers available to handle it"110 Ac-
cording to Ford, however, the drivers already working
at Nitro had their own business to handle. Ford said that
the Coal Grove terminal was reopened on a limited basis
in the spring of 1984
According to Ford, he closed the Marietta terminal
because the Company could not operate out of it He
stated that the pickets hindered entry and exit of the
equipment from the terminal, and that one of the Compa-
ny's large accounts, Ashland Oil, would not let Respond-
ent's trucks load at the nearby Ashland Oil facility as
long as there were pickets around Respondent's Marietta
terminal Ford said he put the Marietta terminal up for
sale, but was unable to sell it The Company did not
have a facility in Parkersburg before moving its Marietta
operation there, and had to lease terminal facilities Ford
said he did not reopen the Marietta terminal in August
1983 because the equipment had been moved out and the
Company had leased the Parkersburg facility (for 6
months)
The former Coal Creek terminal drivers hired to work
out of the Nitro, West Virginia terminal were paid on
the basis of 20 percent of gross revenue derived from the
trips which they made None of the former Marietta
drivers were hired to work out of the Parkersburg termi-
nal. There is nothing in the record to indicate who Re-
spondent did hire to work at the Parkersburg terminal,
or how the Parkersburg drivers were paid
It is apparent from the evidence that Respondent's in-
tention was to close its Marietta and Coal Grove, Ohio
terminals, at least temporarily, and transfer their oper-
110 J Robert Ford testified that he believed the strike continued at
Coal Grove even after the picket line was taken down , but that there was
work available for drivers who called in at Nitro
ations to terminals in Parkersburg and Nitro, West Vir-
ginia. Respondent, although conceding that it transferred
its Marietta operations to Parkersburg, dispute that it
transferred its Coal Grove operations anywhere, con-
tending that its Coal Grove business had disappeared
during the strike and there was nothing to transfer I find
that argument disingenuous and contrary to the evi-
dence The Respondent moved its equipment from the
Coal Grove terminal, relocating much of it at its termi-
nal in Nitro, West Virginia As it did with regard to its
Marietta business, Respondent at least attempted to con-
tinue servicing its customers formerly serviced from the
Coal Grove terminal by dispatching equipment and driv-
ers from its terminal at Nitro and other locations. In
doing so, Respondent continued to make use of its Coal
Grove facilities to store its equipment As for its claim
that its Coal Grove business disappeared during the
strike, Respondent offered no evidence to corroborate its
bald assertion. There was, for example, no evidence of-
fered identifying any of the customers whose business
was allegedly lost or even corroborating that there were
customers who stopped doing business with Respondent,
for whatever reason. While the volume of business at
Respondent's Coal Grove and Nitro terminals sharply
declined during the period of 26 July to 26 August, as
compared to the previous month, the fact of the reduc-
tion, unsupported as it is by any kind of detailed analysis
or breakdown of customers served and loads carried,
does not prove that the loss of business occurred during
the strike or even as a result of the strike, nor does it es-
tablish what Respondent's intentions may or, may not
have been when it closed its Coal Grove terminal and
transferred operations to its terminals in Nitro and other
locations. Respondent could have lost business during
the strike or, equally plausible, the reduction in the
volume of business at its Coal Grove and Nitro terminals
may have had little or nothing to do with the strike. For
example, the apparent reduction in business in August
may have resulted in a mistake in business judgment by
Respondent in relocating its Coal Grove operations too
far away to effectively and efficiently service its custom-
ers formerly serviced from the Coal Grove terminal. Re-
spondent, in short, has failed to prove its claim that there
was nothing to transfer from Coal Grove because the
business had disappeared during the strike
The initial question here is whether Respondent's deci-
sion to shut down its terminals in Marietta and Coal
Grove, Ohio, and transfer operations to terminals in Par-
kersburg and Nitro, West Virginia, respectively, turned
on a direct modification of labor cost, or a change in the
basic direction or nature of Respondent's business Man-
agement decisions which affect the scope, direction, or
nature of an enterprise are excluded from the mandatory
bargaining obligation of Section 8(d) of the Act Deci-
sions which turn on modification of labor costs are in-
cluded in the mandatory bargaining obligation of Section
8(d). Otis Elevator Co., supra; Fraser Shipyards, 272
NLRB 496 (1984) Beyond that, even if the decision
were not a subject of mandatory bargaining, that does
not completely dispose of Respondent's obligation to bar-
gain, since Respondent was obligated to bargain with the
138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union over the effects of its decision to transfer oper-
ations from terminals in Ohio to terminals in West Vir-
ginia Otis Elevator Co., supra, Fraser Shipyards, supra;
First National Maintenance v. NLRB, 452 U S 666, 677
fn 15 (1981).
I find that the essence of Respondent's decision to
close its two Ohio terminals and transfer operations prin-
cipally to terminals in Parkersburg and Nitro, West Vir-
ginia, turned on modification of labor costs, and not on a
change in the nature or direction of Respondent's busi-
ness Since the decision turned on a modification of labor
costs, it was, subject to mandatory bargaining. As there
was no collective-bargaining contract in effect covering
transfer of operations between terminals, Respondent
was free to make the transfer only if it was not motivat-
ed by antiunion animus, and it met its general obligation
of bargaining in good faith with the Union to impasse.
Milwaukee Spring II, supra
Respondent has failed to establish any substantial busi-
ness justification for its action There is no evidence that
Respondent considered closing its two Ohio terminals
before the July strike, or that the transfer of operations
from the two Ohio terminals to the two West Virginia
terminals was in any way related to more efficient utili-
zation of its resources or improved efficiency in its oper-
ations, such as by consolidating operations to reduce op-
erating costs or eliminate duplication of work Cf UOP,
Inc., 272 NLRB 999 (1984) (in which the Board conclud-
ed respondent did not violate the Act by failing to bar-
gain with the union before closing two of four plants,
where the employer was attempting to restore economic
viability by consolidating operations to reduce operating
costs and eliminate duplication of work); Columbia City
Freight Lines, 271 NLRB 12 (1984) (in which the Boards
reached the same conclusion where the employer by
closing two terminals and transferring work, was seeking
to reduce costs, eliminate duplication in costs and serv-
ice, maximize usage of equipment and fuel, and was re-
acting to the loss of a major customer). Indeed, so far as
this indicates, the removal of Respondent's equipment
from its Marietta and Coal Grove, Ohio terminals con-
tributed to inefficiencies in its operations because of in-
creased distance between the customers previously
served and the new terminals where the equipment was
located and dispatched Although not necessrily disposi-
tive of the point, it is significant that Respondent in the
succeeding months shifted its operation back to its Mari-
etta and Coal Grove terminals, strongly suggesting that
the transfer of operations from the two terminals never
was intended to represent a change in the nature or di-
rection of Respondent's business Further dispelling any
notion that Respondent closed the terminals and trans-
ferred operations to improve the efficiency of its oper-
ations, or in reaction to any change in business condi-
tions, there is evidence from drivers and former employ-
ees that even after the Marietta and Coal Grove termi-
nals were ostensibly closed, Respondent continued to
make use of the physical facilities in conducting its truck-
ing operations
The closure of Respondent's two Ohio terminals and
transfer of operations to terminals in West Virginia was a
direct outgrowth of a protracted dispute between the
Respondent and the Union over labor costs. For nearly 8
months in negotiations with the Teamsters Union, Re-
spondent had taken the position that it had to reduce its
labor costs to remain viable and competitive Finally, on
3 July 1983, when negotiations had reached an impasse,
Respondent unilaterally implemented proposals which
lowered the wages and benefits of its Ohio union em-
ployees In reaction to the Respondent's unilateral action,
Respondent's drivers and mechanics employed at its Coal
Grove and Marietta, Ohio terminals went out on strike
on 18 and 19 July, respectively For its part, Respondent
reacted to the strike by closing the two terminals in-
volved and transferring operations elsewhere, but princi-
pally to locations in the State of West Virginia, where
Respondent's drivers were not unionized and were paid
on the basis of a percentage of gross revenue, a formula
which Respondent had repeatedly tried without success
to get the Ohio Conference to Teamsters to accept
Respondent removed its equipment from its Marietta
terminal on 21 July and from its Coal Grove terminal on
25 July Even though the Ohio Conference of Teamsters,
which had not sanctioned the strike by members of two
local unions, made an unconditional offer to return to
work on behalf of its striking members on 25 July 1983,
and the picket lines at both of the struck terminals were
down by the morning of 26 July, Respondent took no
action at that time to bring its equipment back to the
Marietta and Coal Grove terminals and resume oper-
ations there Instead, Respondent, claiming, without any
basis in fact, that the strike was still in progress through-
out the rest of July and August, continued to conduct
some of its former Coal Grove operations from its termi-
nal in Nitro, West Virginia, until early 1984, and later, in
August, opened up a new terminal facility in Parkers-
burg, West Virginia, from where it carried on its former
Marietta operations until December 1983 According to
Respondent, drivers who were rehired after July were
paid according to the wage plan in effect at the terminals
to which they were assigned 11 i
Respondent offered no evidence to support its claims
that it was necessary to close its Marietta and Coal
Grove terminals in order to keep its business going, be-
cause the pickets at the two terminals hindered entry and
exit of equipment, and because one of its large custom-
ers, Ashland Oil, would not let Respondent's trucks load
at the Ashland Oil facility in Marietta as long as there
were pickets at Respondent's nearby Marietta terminal.
Neither did Respondent offer any evidence to support its
claim that it was prevented from resuming operations at
its Marietta terminal, because it had leased facilities in
Parkersburg and was trying to sell the Marietta property
The record contains no corroborating evidence that
strikers hindered entry into or exit from either the Mari-
etta or Coal Grove terminal Not only did Respondent
fail to offer testimony from any other source corroborat-
ing that Ashland Oil would not let Respondent's trucks
load while there was picket activity at the Marietta ter-
"' Those former Coal Grove drivers who were put back to work
were told they were Nitro, West Virginia drivers, and were paid a per-
centage of gross revenue for each trip which they made None of the
former Marietta drivers were rehired by Respondent
FORD BROS 139
mural, it is unclear, even if that were true, how closing
the Marietta terminal would have changed matters, since
it is speculative that the closure would have had any
effect on picket line activity at the Marietta terminal,
much less ended it. Indeed, the picket line was not taken
down at the Marietta terminal until 26 July, when the
strike ended As for Respondent's alleged lease problem,
it offered no evidence as to when it entered into any
lease for the Parkersburg facility, what the terms of the
lease were, if it existed, or what efforts it actually made
to sell its Marietta property
Respondent's antiunion animus is manifest from the
circumstances under which it closed its Marietta and
Coal Grove, Ohio terminals, and transferred operations
to terminal facilities in West Virginia, where labor costs
were lower Respondent's action was retaliatory in
nature, and designed to undermine the Union and elimi-
nate the jobs of union members. It has failed to establish
any substantial business justification for closing the termi-
nals. To the contrary, its purpose was to retaliate against
the union members who went out on strike, by closing
the terminal where they worked, eliminating their jobs,
and transferring operations to West Virginia, where, it
was able to hire drivers at lower wages than it had to
pay to Teamsters union drivers in Ohio. Having accom-
plished its goal of undermining the Union's influence, re-
ducing labor costs, and getting rid of many of its union
employees, Respondent subsequently moved its oper-
ations back to its Marietta and Coal Grove terminals
Thus, in closing its two terminals and transferring oper-
ations to West Virginia, Respondent was acting for an-
tiunion reasons, and to reduce its labor costs
I find that Respondent violated Section 8(a)(5) and (1)
by closing its Marietta and Coal Grove, Ohio terminals,
and transferring operations to West Virginia, without no-
tifying, bargaining, or consulting with the Union con-
cerning its decision to relocate and the impact on em-
ployees. Mashkin Freight Lines, 272 NLRB 427 (1984)
I also find merit in the General Counsel's contention
that Ford Maintenance and Cleaning Corporation is Re-
spondent's alter ego
As stated by the Board in Fugazy Continental Corp.,
265 NLRB 1301, 1301-1302 (1982), in determining
whether one business entity is the alter ego of another,
[w]e must consider a number of factors, no one of
which, taken alone, is the sinne qua non of alter ego
status. Among the factors are- common manage-
ment and ownership, common business purpose,
nature of operations, and supervision, common
premises and equipment, common customers, i e,
whether the employers contitute "the same business
in the same market", as well as the nature and
extent of the negotiations and formalities surround-
ing the transaction We must also consider whether
the purpose behind the creation of the alleged alter
ego was legitimate or whether, instead, its purpose
was to evade responsibilities under the Act
In Inland Container Corp., 275 NLRB 378, 379 (1985), the
Board said its "traditional test for determining successor-
ship status is whether there is a substantial continuity in
the identity of the employing enterprise." In Airport Bus
Service, 273 NLRB 561 (1984), the Board said of the cri-
teria to be applied in determining alter ego status
It is well established that in determining whether
two or more nominally separate business operating
simultaneously are sufficiently interrelated so that
they may be treated as a single integrated business
enterprise, the Board looks to four principal factors.
common management, centralized control of labor
relations, interrelation of operations, and common
ownership or financial control No single criterion
is controlling, although the first three factors, which
reveal the degree of operational integration, are
more critical than common ownership. . . Simi-
larly, in making the related, but nevertheless dis-
tinct, determination of whether a business is the
alter ego or "disguised continuance" of its predeces-
sor, the Board will find alter ego status where the
record demonstrates "substantially identical" man-
agement, business purpose, operation, equipment,
supervision, customers, and ownership between the
two businesses Howard Johnson Co. v Hotel & Res-
taurant Employees, 417 U.S. 249, 259 fn. 5 (1974);
Crawford Door Sales Co., 226 NLRB 1144 (1976)
The record discloses that J. Robert Ford is Respond-
ent's president and chief operating officer, and that he
oversees its financial activities and controls its labor rela-
tions He has held the position of president and the re-
sponsibilities just described since 1976, from 1968 to 1974
he was a member of the board of directors and vice
president, while the company's chief operating officer
was his uncle. According to Ford, the Company has
been in his family since 1930 Ford's wife, Jenny, is Re-
spondent's executive vice president, a position she has
held since 1982
As part of its operations prior to July 1983, Respond-
ent employed at its Coal Grove terminal a staff of me-
chanics who provided maintenance, repair, and cleaning
services for Respondent's fleet of tractors and trailers
Ford Maintenance and Cleaning Corporation is owned
by J Robert Ford and his wife, Jenny, who hold the
titles of chairman of the board and secretary-treasurer,
respectively. It is clear that J Robert Ford is the busi-
ness' chief operating officer, and that he controls its
labor relations The Fords incorporated the business in
Ohio about 15 September 1983, however, it is apparent
that the business was actually in operation in August
1983, regardless of whether or not it was incorporated at
the time Its business is the maintenance and repair of
trucks and the cleaning of the exteriors and interiors of
tank trucks There are the same services previously per-
formed by Respondent directly in connection with its
fleet of vehicles, and Respondent is Ford Maintenance
and Cleaning Corporation's principal, although not only,
customer.
Ford Maintenance and Cleaning Corporation occupies,
under a lease arrangement, the physical facilities at Re-
spondent's Coal Grove terminal previously used by Re-
spondent to perform the same functions on its vehicles
Ford Maintenance and Cleaning Corporation makes use
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the same equipment previously used, but not personal-
ly owned, by Respondent's mechanics In addition' to
maintaining, repairing, and cleaning tractors and trailers
belonging to Ford Brothers, Inc, Ford Maintenance and
Cleaning Corporation also works, under contract, on ve-
hicles owned by other businesses, including Ashland Oil
and Standard Oil of Ohio Although Respondent's me-
chanics at it Coal Grove terminal only worked on Re-
spondent's vehicles, J Robert Ford conceded that Re-
spondent could have undertaken contracts to work on
other companies' vehicles, but he claimed it would have
been more difficult, stating a separate identity was
needed He offered no explanation, however, as to why
it would have been more difficult for Respondent to con-
tract to work on other companies' vehicles, or why a
separate identity was needed or for that matter, how the
identity of Ford Maintenance and Cleaning Corporation
differed significantly from that of Respondent J Robert
Ford also acknowledged that as of the time of trial, all
Ford Maintenance and Cleaning Corporation's employ-
ees were former employees of Respondent, and that the
rates of pay paid by Ford Maintenance and Cleaning
Corporation were lower than the rates paid by Respond-
ent. There is evidence that former Ford Brothers, Inc
employees hired by Ford Maintenance and Cleaning
Corporation were told there would be fewer or no bene-
fits, and the new company was nonunion
Based on the foregoing, I concluded that Ford Mainte-
nance and Cleaning Corporation is the alter ego of Re-
spondent, insofar as Respondent's vehicle maintenance,
repair, and cleaning operations formerly conducted at its
Coal Grove terminal are concerned Ford Maintenance
and Cleaning Corporation is merely the disguised con-
tinuance of Respondent's operations through a nonunion
surrogate which Respondent set up for the purpose of
avoiding its obligation to bargain with the Union, in the
same location, with the same employees and supervisors,
and for the benefit of the same parties, J Robert Ford
and his wife, Jenny. J Robert Ford is the chief executive
officer, with full control, of both Respondent and Ford
Maintenance and Cleaning Corporation. He and his wife
are the sole owners of the latter, and have a substantial
ownership interest in the former In any event, by taking
the maintenance, repair, and cleaning functions from Re-
spondent and giving them to Ford Maintenance and
Cleaning Corporaton, it is clear Ford was engaging only
in a paper transaction which resulted in no loss or added
expense to Respondent Thus, it is clear from the record
that the two companies share common ownership and
control, the scope of their operations is the same for all
practical purposes, in that Respondent is Ford Mainte-
nance and Cleaning Corporation's principal customer and
Respondent, itself, could have undertaken to service out-
side customers under its own name had it chosen to do
so, and Respondent ceased conducting maintenance,
repair, and cleaning operations at its Coal Grove termi-
nal and formed a nonunion company to perform the
functions in order to avoid its collective-bargaining obli-
gations to the Teamsters Union Both companies have in
common ownership and financial control, management,
and supervision, control of labor relations policies, busi-
ness purpose and customers, equipment, employees, and
facilities All this, together with the clear evidence that
Respondent' s intent in setting up Ford Maintenance and
Cleaning Corporation was to evade its responsibilities
under the Act, is more than sufficient to establish Ford
Maintenance and Cleaning Corporation is the alter ego
of Respondent, and that Respondent violated Section
8(a)(5) and (1) of the Act by failing and refusing to bar-
gain with the Union with respect to rates of pay, wages,
benefits, and other terms and conditions of employment
of employees employed by Ford Maintenance and Clean-
ing Corporation, and by changing the employees' rates
of pay, wages, and benefits without notifying, bargaining,
or consulting with the Union
E Threats
The General Counsel alleges that Respondent violated
Section 8(a)(1) of the Act by its agents threatening em-
ployees variously with discharge if they did engage in a
strike or did not waive their collective-bargaining rights,
and by assaulting an employee with a firearm because
the employee was engaged in strike activity The Charg-
ing Party joins in the allegations
The allegations of threats and an assault are contained
in paragraphs 5(a) and (b) of the complaint, and involve
Keith Lewis, identified in the complaint as a Coal Grove
terminal supervisor, and Carl Hamilton, identified as a
Marietta terminal dispatcher According to the com-
plaint, in or around June 1983, Lewis threatened employ-
ees with discharge if they engaged in a strike, and on or
about 20 September 1983, he threatened an employee
with discharge if he did not waive his rights under the
collective-bargaining aggreement between Respondent
and the Union The complaint further alleges that on or
about 19 July 1983, Carl Hamilton threatened employees
with discharge because of their strike activities, and as-
saulted employees with a firearm for the same reason.
According to the General Counsel, there is evidence
that in or around June 1983, Lewis told Paul Bonnette,
one of Respondent's employees, that J Robert Ford
wanted the employees to strike so he could close the
[Coal Grove terminal, and that on 19 July, Hamilton told
striking emp]loyees at ,the Marietta terminal that the ter-
minal was being closed and all the employees were going
to lose their jobs Further, points out the General Coun-
sel, on 20 September 1983, Lewis directed Orville
Spence, a Coal Grove mechanic then employed by Ford
Maintenance and Cleaning Corporation, to sign a state-
ment waiving his collective-bargaining rights as an em-
ployee of Respondent, in order to work for Ford Main-
tenance and Cleaning Corporation Finally, contends the
General Counsel, there is evidence that on 19 July, Ham-
ilton held a gun in his hand while driving across a picket
line
It is an unfair labor practice under Section 8(a)(1) of
the Act for an employer "to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed
in Section 7 " Section 8(c) of the Act, however, provides
that an employer's expression of any views, argument, or
opinion, "shall not constitute or be evidence of an unfair
labor practice under any of the provisions of this Act, if
such expression contains no threat of reprisal or force or
FORD BROS
promise of benefit " Thus, an employer's expression is
protected only so long as it contains "no threat of repris-
al or force or promise of benefits in violator of §8(a)(1) "
NLRB v Riley-Beaird, Inc, 681 F.2d 1083 (5th Cir
1982) 112
The evidence presented by counsel for the General
Counsel regarding the allegations of threats and an as-
sault was not extensive.
Of the alleged June 1983 threat by Keith Lewis, Paul
Bonnette, a Coal Grove terminal driver, testified only
that he was told by Keith Lewis that Bob Ford wanted
the drivers to go on strike so that he could close the ter-
minal. Respondent stipulated at trial that Lewis was a su-
pervisor and agent of Respondent, within the meaning of
the Act, at all relevant times.
Orville Spence, a first=class mechanic at Respondent's
Coal Grove terminal until the July 1983 strike, testified
he went to work for Ford Maintenance and Cleaning
Corporation in mid-August On approximately 20 Sep-
tember, Keith Lewis told him he would have to sign a
paper giving up all of his seniority and vacation rights
with Respondent, or he could not work for Ford Mainte-
nance and Cleaning Corporation. After initially refusing
to sign, Spence consulted with a Teamsters union
lawyer, and a day or two later signed the paper.
Concerning the statements and the assault attributed
by counsel for the General Counsel to Carl Hamilton,
Larry Quillen, a driver formerly employed at the Mariet-
ta terminal, testified that early in the work stoppage,
which began on 19 July, he had a conversation with
Hamilton as the latter stopped his vehicle while driving
across the picket line Quillen said that he heard Hamil-
ton say, "I hate to see this That's all for the Marietta
terminal " On another occasion early in the work stop-
page, Hamilton again stopped his van while driving
across the picket line and became involved in an argu-
ment with Quillen, during the course of which, Hamilton
held up a holstered handgun for Quillen to see. Quillen
testified that he laughed, and said he had one also, al-
though he did not have a gun with him at the time
Lester Jackson, another driver formerly employed at
the Marietta terminal, testified that on 19 July he heard
Hamilton, who was seated in his van at the time, say that
he wished the strikers would reconsider, as "it finishes
the Ford Brothers terminal here."
Neither Keith Lewis nor Carl Hamilton were called as
witnesses. The testimony presented by the General
Counsel's witnesses was uncontroverted and unrebutted
I find no reason not to credit the witnesses called by the
General Counsel and, on the basis of their testimony, I
find that Keith Lewis and Carl Hamilton made the state-
ments and engaged in the actions attributed to them
I find that the statements made by Keith Lewis and
Carl Hamilton, to the effect that Respondent's president
wanted a strike so that he could close the Coal Grove
terminal, and that the strike would result in the closing
of the Marietta terminal, amounted to threats of reprisals
against Respondent's employees and interfered with their
exercise of rights guaranteed by Section 7 of the Act
and, therefore, violated Section 8(a)(1) of the Act. The
112 Citing NLRB v Gissel Packing Co, 395 U S 575 (1969)
141
statements were coercive in nature and made for no
other purpose than to dissaude the Respondent's employ-
ees from engaging in protected concerted activities, in
this instance a strike, by putting their jobs and future
livelihood in jeopardy. It is a violation of Section 8(a)(1)
for an employer to threaten to fire his employees if they
engage in concerted protected activities, such as a strike,
and it is of no significance whether that result is threat-
ened directly, or indirectly, as by eliminating jobs
through closure of the employer's plant or facility
Similarly in violation of Section 8(a)(1) was Keith
Lewis' threat to Orville Spence that he would not be al-
lowed to continue working for Ford Maintenance and
Cleaning Corporation unless he gave up seniority and va-
cation rights which he had with Respondent under a col-
lective-bargaining agreement. As previously found in this
decision, Ford Maintenance and Cleaning Corporation
was Respondent's alter ego, formed in order to avoid
Respondent collective-bargaining obligations to the
Teamsters Union. It would be difficult to envision a
clearer interference by Respondent with Spence's collec-
tive-bargaining rights, guaranteed by Section 7 of the
Act, than to threaten to terminate his employment with
Respondent's alter ego if he did not waive rights or ben-
efits to which he was entitled under Respondent's collec-
tive-bargaining agreement with the Teamsters Union
As for the firearm incident invoking Carl Hamilton
violated Section 8(a)(1), I find that it amounted to nei-
ther as assault nor a threat
"Generally speaking, an assault is a demonstration of
an unlawful intent by one person to inflict immediate
injury on the person of another then present. Although
physical contact is not an essential element, violence,
threatened or offered, is " Statutes which define assault
usually define it "as an unlawful attempt, coupled with a
present ability, to commit a violent injury upon the
person of another " 6 Am Jur 2d, Assault and Battery,
§ 3. While the authorities disagree on whether the show-
ing of a firearm, unaccompanied by an attempt to use it,
is sufficient to constitute an assault, there seems to be
agreement that there must at least be a pointing of a fir-
earem "in a condition, or apparently in a condition, for
immediate use " 6Am.Jur 2d, Assault and Battery § 31
The evidence in this case indicates no more than Ham-
ilton produced a holstered handgun, which he held up
for one or more of Respondent's employees to see There
is no evidence that he made any kind of verbal threat,
that he removed the handgun from the holster, or that
he pointed the handgun, while in its holster or not, at
anyone There is not even any evidence that the General
Counsel's witness to the event, Larry Quillen, construed
Hamilton's actions to be a threat, or that he was placed
in fear or apprehension.' i 3 Under these circumstances, I
113 There is a split among authorities as to whether or not the victim
must have a reasonable apprehension of immediate injury However,
where the thrust of the violation of Sec 8(a)(1) is Interference by the em-
ployer in the employees' exercise of their guaranteed rights, it would
seem reasonable to take into account whether or not the employees be-
lieved that there was a threat
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
find that there was neither a threat nor an assault and,
therefore, there was no violation of Section 8(a)(1) of the
Act 114
F Bypassing the Union
Remaining are three allegations that Respondent by-
passed the Union and dealt directly with its employees
concerning terms and conditions of employment and Re-
spondent's financial problem 115
First, it is alleged that on or about 20 June 1983, J.
Robert Ford, Respondent's president, bypassed the local
unions and met directly with employees, to whom he
proposed lower pay and other terms and conditions of
employment less favorable than applicable under the col-
lective-bargaining agreement then in force On another
occasion, which also allegedly occurred in June, Jenny
Ford, J Robert Ford's wife, allegedly met directly with
employees, explained Respondent's accounting records,
and suggested that loss of revenue would cause Respond-
ent to close its Coal Grove and Marietta terminal The
third incident, which, like the other two, allegedly oc-
curred in June, involved Carl Rowe, a supervisor at Re-
spondent's Coal Grove terminal, who asked employees
to provide the Respondent with concessions in its negoti-
ations with the Union
According to the General Counsel, all the incidents in-
volved employee Paul Bonnette, who, on different occa-
sions, was told by J Robert Ford and Carl Rowe, the
Coal Grove terminal manager, that the employees were
going to have to make concessions to keep Respondent's
business operating. Bonnette, and another employee,
Boyce Meeks, also met with Jenny Ford, at her request,
and after explaining computer printouts of Respondent's
record, she explained that Respondent was not making
any money and could not afford to stay open. Neither
Bonnette nor Meeks, contends the General Counsel, held
any union office at the time, nor were they authorized to
negotiate on behalf of the Union The General Counsel
argues that the Board has held that incidents of direct
dealing by an employer with his employees, where the
employees are represented by a union, violates Section
8(a)(1) and (5) of the Act
The Charging Party takes the same position, pointing
out that J Robert Ford, Jenny Ford, and Carl Rowe
violated Section 8(a)(5) and (1) by meeting with Coal
Grove terminal employees "without the presence of their
designated collective bargaining representative "
Respondent denies that J Robert Ford proposed con-
cessions to Paul Bonnette, or that Jenny Ford threatened
or even discussed the possibility of closure of Respond-
ent's Coal Grove terminal with Bonnette and Boyce
Meeks In any, event, argues the Respondent, "state-
114 Hamilton's action no doubt can justifiably be characterized as im-
mature bravado, lacking in common sense and good judgment, but it was
not a threat, real or implied, to inflict injury then or at any other time
with the handgun on Larry Quillen or any other striker In the absence
of any threat of injury or reprisal, Hamilton's action did not constitute an
unlawful interference with the employees' exercise of their rights guaran-
teed by Sec 7
115 Two of the allegations are contained in the complaint, the third
was added by oral amendment of the complaint on motion by counsel for
the General Counsel at trial
ments of displeasure with respect to Unions and/or
Union activity are not coercive nor violative of the Act
in the absence of real or actual threats."
That bypassing a union and dealing directly with bar-
gaining unit employees is a violation of Section 8(a)(5)
and (1) of the Act by an employer is well established In
the recent case of Ross Crane Rental Corp., 267 NLRB
415, 416 (1983), the Board said.
It is well established that an employer violates Sec-
tion 8(a)(5) and (1) of the Act by meeting with em-
ployees to discuss wages without the presence of
their designated collective-bargaining representa-
tive. See, e.g., Limpco Mfg, Inc., 225 NLRB 987
(1976), Bueter Bakery Corp, 223 NLRB 888 (1976).
Such direct dealing with, employees is inconsistent
with the employer's bargaining obligations, tends to
undermine the status of the bargaining agent, and
interferes with employees' Section 7 rights See,
generally, Medo Photo Supply Corp. v. NLRB., 321
U.S 678 (1944)
See also Brenal Electric, 271 NLRB 1557 (1984), Mashkin
Freight Lines, supra.
Paul Bonnette, a truckdriver formerly employed at Re-
spondent's Coal Grove terminal, testified that in May or
June 1983, Carl Rowe suggested to him that the drivers
make concessions so that Respondent's business could
keep on operating During the same period of time, testi-
fied Bonnette, he had a conversation with J Robert
Ford, during which Ford said he wanted to talk to the
drivers, but the Union would not talk to him, and that
the drivers were going to have to make concessions.
Later, in June or July, Jenny Ford, J. Robert Ford's
wife, initiated a conversation at the Coal Grove terminal,
during which she told Bonnette and Boyce Meeks, an-
other employee that Respondent was closing the Coal
Grove and Marietta terminals During the conversation,
Jenny Ford showed them computer printouts, but did
not make any threats or promises.
Boyce Meeks, testifying about the conversation which
he and Bonnette had with J Robert Ford, related that
she said Ford Brothers was not making any money and
could not afford to keep the terminal open, and that the
terminal would be closed on Friday. He said that Jenny
Ford did not threaten them or make any promises, but
that she did ask that they pass on the information
J. Robert Ford testified that he did not recall a meet-
ing with Bonnette in June or July 1983 in which there
was discussion of any proposal to lower pay or change
terms and conditions of employment.
Jenny Ford acknowledged that she did have a conver-
sation in early June with Paul Bonnette and Boyce
Meeks The conversation was initiated by Bonnette and
Meeks, according to Jenny Ford, because they were con-
cerned about the financial condition of the Company.
Jenny Ford said she told them that the Company was
losing a substantial amount of money, partly because of
slow-paying customers At Bonnette's suggestion, she at-
tempted, without success, it turned out, to arrange a
meeting of the drivers and Roger Hunt, president of
Local Union 159, with J Robert Ford She denied
FORD BROS 143
thatshe threatened to close the Coal Grove terminal, or
said that it would close on Friday
Carl Rowe did not testify
On balance, I conclude that the General Counsel has
met his burden of proving by a preponderance of the
evidence that Respondent, through its agents on the
three occasions alleged, bypassed the Union and dealt di-
rectly with members of the bargaining unit concerning
wages and other terms and conditions of employment,
specifically the Respondent's financial condition, and its
need for wage and benefit concessions by the employees
Bypassing of the Union and dealing directly with its em-
ployees on such issues is a clear violation by Respondent
of Section 8(a)(5) and (1) of the Act
I find the testimony of Paul Bonnette and Boyce
Meeks to be credible and unrebutted J Robert Ford said
of the conversation about which Bonnette testified, only
that he did not recall such a meeting or conversation
The primary purpose of J Robert Ford's proposals to
the Union throughout the lengthy period during which
bargaining took place in 1982 and 1983 was to gain wage
and benefit concession from his employees, because,
Ford contended, his company was losing money and was
not competitive Particularly after the tank truck indus-
try employers' collective attempt in early 1983 at agree-
ment with the Union collapsed, Ford intensified his ef-
forts to gain individual concessions for his Company, and
his June proposals to the Union, as well as his discus-
sions with the Union about that time, centered on his
desire for wage and benefit reductions The remarks at-
tributed to him by Bonnette, in the timeframe alleged,
are entirely consistent with Ford's overall position that
Respondent needed wage and benefit concessions to be
completitive These circumstances, together with the de-
meanor of the witnesses while testifying and their respec-
tive motives for telling the truth or not telling the truth,
are sufficient to convince me that the conversation de-
scribed by Bonnette did take place In that regard I find
the testimony of Bonnette that the conversation did take
place to be more believable than Ford's disclaimer that
he does not recall such a conversation with Bonnette. I
further find that Bonnette's unrebutted and uncontrovert-
ed testimony concerning his conversation with Carl
Rowe is sufficient to sustain a finding that the conversa-
tion took place, as alleged
It is undisputed from the testimony of Bonnette,
Meeks, and Jenny Ford that a conversation touching on
the subject of Respondent's financial condition did take
place, and during that conversation, Jenny, Ford made
the point that Respondent was losing a substantial
amount of money What is disputed is who initiated the
conversation, and whether Jenny Ford said that Re-
spondent intended to close either the Coal Grove or
Marietta terminals, or both
I find, in this regard, that the testimony of Bonnette
and Meeks is more believable than that of Jenny Ford
This conclusion is buttressed by my observation of the
demeanor of the witnesses while testifying, which caused
me to conclude that Bonnette and Meeks testified in a
straightforward manner, giving no indication of any at-
tempt at obfuscation or concealment, while Jenny Ford
appeared to be attempting to choose her words carefully
and to be less candid Further, Bonnette and Meeks have
little apparent motive to falsify their testimony, as they
have nothing personal at stake resting on the outcome of
this aspect of the case, while, as an officer of the Re-
spondent, and the wife of the president and an owner of
the Company, Jenny Ford has considerable personal in-
terest in the outcome of this and all other issues involved
in this case
The statements attributed to Jenny Ford, moreover,
are consistent with the actual course of events in July,
when Respondent did, in fact, close both its Marietta and
Coal Grove terminals. Finally, while Bonnette and
Meeks no doubt were concerned over the future of their
employment, they had no authority to bargain on behalf
of the Union, nor, so far as the record shows, were they
acting with the knowledge or acquiescence of their
fellow employees, and there is no indication that they
did anything to follow up on the conversation which
they had with Jenny Ford It was the Respondent's clear
plan, on the other hand, to put pressure on the Union to
make concessions, and one possible method in which that
might be accomplished would be to alarm the employ-
ees, by giving them frightening financial information and
gloomy predictions, in an effort to get them to pressure
the Union to make concessions
Considering all of these factors, I credit the testimony
of Paul Bonnette and,Boyce Meeks over that of Jenny
Ford, and I find that, as alleged, she made the statements
attributed to her.
CONCLUSIONS OF LAW
I Ford Brothers, Inc , the Respondent, is an employer
engaged in commerce with in the meaning of Section
2(2), (6), and (7) of the Act '
2 The Ohio Conference of Teamsters, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO and
Teamsters Local Unions No. 114, 159, 413, and 637, af-
filiated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America are
labor organizations within the meaning of Section 2(5) of
the Act
3 At all times material, Local Teamsters Unions Nos
159, 114, 413, and 637, were the exclusive bargaining
representative for purposes of collective bargaining,
within the meaning of Section 9(b) of the Act, of all Re-
spondent's employees, including truckdrivers and me-
chanics, but excluding all office clerical employees, and
all professionsal employees guards and supervisors as de-
fined in the Act, employed by Respondent, respectively,
at its Coal Grove, Cincinnati, Columbus, and Marietta,
Ohio facilities
4 On or about 25 July 1983, the Ohio Conference of
Teamsters, through its representative, Robert Moody,
communicated to Respondent unconditional offers to
return to their former positions of employment on behalf
of Respondent's employees at its Coal Grove and Mariet-
ta, Ohio facilities, who were represented by the Union,
and were then engaged in an economic strike against the
Respondent.
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 By failing and refusing to immediataely reinstate the
employees described in paragraph 4, above on their un-
conditional offer to return to work to their former posi-
tions, or substantially equivalent positions if those posi-
tions were no longer available for legitimate and substan-
tial business reasons, Respondent committed an unfair
labor practice, in violation of Section 8(a)(1) and (3) of
the Act
6 By failing to notify the Ohio Conference of Team-
sters or Local Union No 413 of its decision to transfer
to another employer work previously performed by
members of Local Union No. 413 at Respondent's Co-
lumbus, Ohio facility, and by failing to afford the Union
an opportunity to bargain over the decision and its ef-
fects, Respondent committed an unfair labor practice, in
violation of 8(a)(1) and (5) of the Act.
7 By failing to notify the Ohio Conference of Team-
sters or Local Unions No 159 and 637 of its decision to
close its facilities at Coal Grove and Marietta,- Ohio, and
relocate elsewhere the operations formerly performed by
bargaining unit members at those facilities, and by failing
to afford the Union an opportunity in bargaining over
the decision and its effects, Respondent committed an
unfair labor practice, in violation of Section 8(a)(1) and
(5) of the Act. -
8. Respondent and its alter ego, Ford Maintenance and
Cleaning Corporation, constitute a single employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act By failing and refusing to bargain
with the Union with respect to rates of pay, wages, bene-
fits, and other terms and conditions of employment of
bargaining unit members employed by Ford Maintenance
and Cleaning Corporation after 26 July 1983, and unilat-
erally changing rates of pay, wages, benefits, and other
terms and conditions of employment in the absence of a
good-faith impasse in negotiations, Respondent violated
and continues to commit unfair labor practices, in viola-
tion of Section 8(a)(1) and (5) of the Act
9 By threatening an employee of its alter ego, Ford
Maintenance and Cleaning Corporation, on or about 20
September 1983, with discharge unless he waived his col-
lective-bargaining rights, Respondent, through its agent,
Keith Lewis, committed an unfair labor practice, in vio-
lation of Section 8(a)(1) of the Act
10 By threatening, in or about June 1983, to close its
Coal Grove facility if the employees engaged in a strike,
Respondent, through its agent Keith Lewis, committed
an unfair labor practice, in violation of Section 8(a)(1) of
the Act
11 By threatening closure of its Marietta, Ohio facili-
ty, on or about 19 July 1983, because the employees
were engaged in a strike, Respondent, through its agent,
Carl Hamilton, committed an unfair labor practice, in
violation of Section 8(a)(1) of the Act.
12 By bypassing the Union and dealing directly with
employees in or about May or June 1983 concerning the
need for concessions by Respondent's drivers, Respond-
ent, through its agent J. Robert Ford, committed an
unfair labor practice, in violation of Section 8(a)(5) of
the Act
13 By bypassing the Union and dealing directly with
employees in or about May or June 1983 by suggesting
that the drivers make concessions so that Respondent's
business could continue to operate, Respondent, through
its agent, Carl Rowe, committed an unfair labor practice,
in violation of Section 8(a)(5) of the Act.
14. By bypassing the Union and dealing directly with
employees in or about June or July 1983 by informing
them that Respondent was not making any money and
could not afford to keep its Coal Grove, Ohio facility
open, and would close it, Respondent, through its agent,
Jenny Ford, committed an unfair labor practice, in viola-
tion of Section 8(a)(5) of the Act
15 The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that Respondent engaged in unfair labor
practices I find it appropriate to order Respondent to
cease and desist thereform and to take certain affirmative
action to effectuate the policies of the Act
Respondent, having engaged in unfair labor practices
in violation of Section 8(a)(1), (3), and (5) of the Act,
shall be ordered to cease and desist from engaging in
these unfair labor practices.
Respondent having refused to reinstate on 26 July
1983 and afterward its employees at its Marietta and
Coal Grove, Ohio facilities, who were engaged in an
economic strike, none of whom had been permanently
replaced, shall be ordered to immediately reinstate all
employees who were engaged in the strike to their
former positions, or if those positions are no longer avail-
able; to substantially equivalent positions, without preju-
dice to their seniority or other rights or privileges previ-
ously enjoyed, and to make whole such employees for
any loss of earnings resulting from its failure to reinstate
them since 26 July 1983, computed in accordance with
the formula stated in F. W Woolworth Co, 90 NLRB 289
(1950), and with interest in accordance with Florida Steel
Corp., 231 NLRB 651 (1977) See generally Isis Plumbing
Co., 138 NLRB 716 (1962)
Respondent, having in 1983 implemented its decision
to transfer work to be performed for its customer, Jet-
coat, to F & B Transport, Inc., another employer,
which work was previously performed by members of
the bargaining unit employed at Respondent's Columbus,
Ohio facility, without notifying the Union and affording
it an opportunity to bargain concerning the decision and
its effects, shall restore the status quo ante as it existed
prior to transfer to F & B Transport, Inc. of any Jetcoat
work previously performed by members of the bargain-
ing unit, and shall be made whole any member of the
bargaining unit who sustained a loss of wages as a result
of the transfer of work by providing them with backpay,
with interest Backpay shall be computed in accordance
with F W. Woolworth Co., supra, with interest as pre-
scribed in Florida Steel Corp, supra See generally Isis
Plumbing Co, supra.
Respondent, having implemented its decision, without
notifying the Union and affording it an opportunity to
bargain concerning the decision or its effects, to close its
facilities at Marietta and Coal Grove, Ohio, in July 1983,
FORD BROS 145
and transfer operations previously conducted at those fa-
cilities to other facilities in Ohio and West Virginia, shall
reopen its Marietta and Coal Grove, Ohio facilities, and
transfer back to those facilities any of the work trans-
ferred elsewhere 116 Respondent shall offer to those em-
ployees whose positions were eliminated by closure of
the Marietta and Coal Grove, Ohio facilities, and transfer
of operations elsewhere in Ohio and West Virginina, or
whose positions were otherwise adversely affected, im-
mediate and full reinstatement to their former positions,
or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed, and
make those employees whole by providing them with
backpay, including all benefits, for the period from the
date the facilities were closed, or 26 July 1983, for these
employees who participated in an economic strike
against Respondent between 18 and 26 July 1983, to the
date of the offer of reinstatement to positions at the re-
opened Marietta and Coal Grove, Ohio facilities, with in-
116 If Respondent has already reopened the facilties and transferred
back all work, it shall be necessary for Respondent to comply only with
the reinstatement and backpay provisions of this section of the remedy
terest. Backpay shall be computed i accordance with
F W. Woolworth Co., supra with interest as prescribed in
Florida Steel Corp., supra See generally Isis Plumbing
Co., supra
Respondent, having in or about July or August 1983
unilaterally implemented wage rates and other terms and
conditions of employment effecting its alter ego, Ford
Maintenance and Cleaning Corporation, without bargain-
ing with the Union and in the absence of a genuine
good-faith impasse, shall restore the status quo ante, as it
existed prior to its unilateral implementation of any
changes in wage rates and other terms and conditions of
employment, and shall make any employee of Ford
Maintenance and Cleaning Corporation adversely affect-
ed by the wages and other terms and conditions of em-
ployment unilaterally implemented by Respondent whole
for any such loss of earnings or benefits which they sus-
tained, by providing them with backpay, including all
benefits, with interest. Backpay shall be computed in ac-
cordance with F. W. Woolworth Co, with interest as pro-
scribed in Florida Steel Corp., supra. See generally Isis
Plumbing Co., supra.
[Recommended Order omitted from publication.]