Fullerton Transfer & Storage Ltd, Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1976

224 N.L.R.B. 480 (N.L.R.B. 1976)

480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fullerton Transfer & Storage Limited , Inc. and Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Local 377
Case 8-CA-9227
agents, successors, and assigns, shall take the action
set forth in the Administrative Law Judge's recom-
mended Order
June 8, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On March 9, 1976, Administrative Law Judge
Robert M Schwarzbart issued the attached Decision
in this proceeding Thereafter, General Counsel and
the Charging Party filed exceptions and supporting
briefs and the Respondent filed an answering brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Fullerton Transfer &
Storage Limited, Inc, Youngstown, Ohio, its officers,
1 The General Counsel and Charging Party have excepted to certain cred-
ibility findings made by the Administrative Law Judge It is the Board s
established policy not to overrule an Administrative Law Judge s resolu-
tions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect Standard
Dry Wall Products Inc, 91 NLRB 544 (1950) enfd 188 F 2d 362 (C A 3
1951) We have carefully examined the record and find no basis for revers-
ing his findings
We find no merit in the Unions contention that we should hold Re-
spondent liable for all costs incurred by employees in connection with the
strike herein This position is based on the unfounded premise that Respon-
dent is bound by the terms of the Union s National Master Freight Agree-
ment which provides, inter alia that an employer assumes liability for costs
incurred by employees in attempting to force their employer to remedy
delinquencies in its contributions to the Union's pension and health and
welfare funds The Union argues that since the strike herein was caused at
least in part by Respondents failure to make such payments, under the
national agreement Respondent is liable for the costs incurred by employ-
ees in connection with the strike Obviously this argument is without merit
since there was no finding by the Administrative Law Judge that Respon
dent was a party to the national agreement, as such a finding was unneces-
sary for resolution of the issues herein Further, even if it should be de-
termined that Respondent is bound by the terms of the national agreement
any rights which employees have thereunder are purely contractual and
must be enforced in an action at law rather than a Board proceeding
DECISION
STATEMENT OF THE CASE
ROBERT M SCHWARZBART, Administrative Law Judge
This case was heard on October 14 and 15, 1975, in
Youngstown, Ohio, pursuant to a charge and amended
charges I filed by International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Lo-
cal 377, herein called the Union, and a complaint, issued
on August 4, 1975
The complaint alleges that Fullerton Transfer & Storage
Limited, Inc, herein called the Respondent, has engaged in
certain unfair labor practices in violation of Section
8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended, herein called the Act The Respondent filed an
answer denying the allegations of unlawful conduct set
forth in the complaint
Issues
1 Whether the Respondent in violation of Section
8(a)(5) of the Act has refused to bargain collectively with
the Union by
(a) Unilaterally decreasing the compensation paid to
certain of its contract truckmen,
(b) Unilaterally ceasing its contribution payments on
behalf of its employees to the jointly administered health,
welfare, and pension funds,
(c) Refusing to continue to meet with the Union's repre-
sentatives, upon request, for the purpose of processing em-
ployee grievances and for purposes of discussing the unila-
teral changes referred to above concerning compensation
and its health and welfare and pension contributions
2 Whether the Respondent in violation of Section
8(a)(3) of the Act discharged 11 of its employees for en-
gaging in a protected strike protesting the Respondent's
unfair labor practices
3 Whether the Respondent, in violation of Section
8(a)(1) of the Act, threatened its employees that it would
close its facilities involved herein if the Union "pressed too
hard" in handling grievances
Other issues presented were whether the Union repre-
sented a majority of the Respondent's employees in an ap-
propriate unit, whether there was an existing and underly-
ing duty on the part of the Respondent to bargain with the
Union with respect to the employees in such a unit, wheth-
er the strike of the Respondent's employees, which began
on or about May 29, 1975, was a protected unfair labor
practice strike, and whether the Union, having made an
unconditional offer to return to work on behalf of striking
employees thereafter, declined to end the strike after its
offer was accepted by the Respondent
i The original charge was filed on June 10 1975 and the first and second
amended charges were filed on June 13 and 18, 1975 respectively
224 NLRB No 80
FULLERTON TRANSFER & STORAGE LIMITED, INC 481
At the hearing, all parties were represented by counsel
and were given full opportunity to appear, introduce evi-
dence, examine and cross -examine witnesses , and to file
briefs Upon the entire record, the briefs filed by the Gen-
eral Counsel and the Respondent and upon my observa-
tion of the demeanor of the witnesses, I make the follow-
ing
FINDINGS OF FACT
I JURISDICTION
The Respondent is an Ohio corporation with its princi-
pal office and place of business at Youngstown, Ohio,
where it is engaged in providing transportation services
Annually, in the course and conduct of its business opera-
tions, the Respondent receives gross revenues in excess of
$50,000 for the transportation of goods in interstate com-
merce Upon the foregoing facts, the Respondent concedes
and I find that the Respondent is in commerce within the
meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 377, is, and
at all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A Background
The Respondent is engaged in the local and interstate
transportation of household goods under an agency con-
tract with North American Van Lines, Fort Wayne, Indi-
ana, and stores household goods and general commodities
and provides moving services, such as the packing and
crating of customer goods The Respondent further is en-
gaged in the interstate and intrastate transportation of
iron , steel , and general commodities
In its operations, the Respondent employs hourly-rated
drivers who operated equipment owned by the Respon-
dent and contract truckmen or owner-operators 2 who own
their own trucks and were paid on a percentage basis
Richard E Mills, the Respondent's president, who has
been with the Company for approximately 22 years, has
been actively in charge of all facets of the Respondent's
operations since the departure of the former vice president
and general manager on or about September 30, 1974
Mills has been assisted in this work principally by Robert
Kollar, operations manager , and James Huston , sales man-
ager
For some years, midwestern employers in the trucking
2 The record revealed the existence of a semantic difference between the
Respondent and the Union as to the nomenclature of contract truckmen or
owner-operators The Respondent traditionally has used the former term
while the Union, the latter As it is clear that in this proceeding the terms are
synonymous, individuals in this category will be referred to herein as con-
tract truckmen Their status as independent contractor or employees within
the meaning of the Act will be discussed, infra
business who bargain collectively with local unions affiliat-
ed with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, have
subscribed to the National Master Freight Agreement and
Central States Area Local Cartage Supplemental Agree-
ment, printed in single booklet form and herein jointly
called the Master Agreement This document provides for
further supplementation by the negotiation of riders of the
local union level The current Master Agreement is effec-
tive from July 1, 1973, through March 31, 1976
Although the Respondent did not sign the current Mas-
ter Agreement, and the evidence is not clear as to whether
it had signed any of its predecessor agreements, the Re-
spondent did execute a memorandum of agreement on
May 12, 1970 This document, retroactively effective to
May 1, 1970, for a period of 1 year set forth the compensa-
tion to be paid the contract truckmen 3 No more recent
agreement with the Union was signed by the Respondent
B The Alleged Refusals To Bargain
I The appropriate unit
The complaint alleges, the answer admits, and I find that
the following unit is appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act
All hourly-rated paid and percentage-paid
truckdrivers4 employed by the Respondent at its Mid-
lothian Boulevard, Youngstown, Ohio, facility, includ-
ing all contract truckmen/moving division and the
The Respondent contends that the 1970 memorandum of agreement had
been executed by the Respondent with the drivers as individuals rather
than with the Union as the drivers' representative In support of this posi-
tion, the Respondent notes that it was separately signed by all of the rele-
vant contract drivers and contract packers employed at that time, except for
one who was out of town at the time , and that the Union s business agent
and steward had merely signed the agreement in their respective capacities
as advisors However, the introductory paragraph of the memorandum pro
vides as follows
The following agreement between Fullerton Transfer and Storage Lim-
ited, Inc, and its household goods Contract Truckmen domiciled at the
Youngstown terminal is the result of numerous meetings between the
Company, Union and the Contract Truckmen The majority of the
Contract Truckmen in conjunction with their union representative had
agreed with the Company on the various issues as follows
In addition, item 7 of the memorandum, in part, provides that This
Memorandum is an addendum to the existing contract agreement " Accord-
ingly, noting the role of the Union herein negotiating the said memorandum
and other existing contract agreements" on behalf of and in conjunction
with the Respondent's contract drivers and packers, as set forth in the plain
language of the agreement , and from the record as a whole , I find that the
1970 memorandum of agreement was negotiated with the Union in its repre-
sentative capacity and not merely with individual employees who were
being informally advised by an unrecognized union
a As the answer concedes that percentage-paid drivers , which group in-
cludes the contract truckmen/moving division were appropriately a part of
the overall unit which is not contested in the answer the subsequent efforts
by the Respondent at the hearing to show that such contract truckmen
should be excluded from the unit as independent contractors were held to
be inappropriate It has long been settled that a Respondent must challenge
in its answer any allegation in the complaint it wishes to place in issue
NLRB v The Blanton Company 121 F 2d 564 (C A 8, 1941) In addition
such collateral testimony concerning these contract truckmen as is con-
tained in the record would tend to support their placement within the unit
They work exclusively for the Respondent and, depending upon the volume
of business or the absence of hourly rated drivers, also work in various
hourly-paid classifications while contract truckmen sometimes may hire
Continued
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispatcher , but excluding all contract truckmen/steel
and freight divisions , packers , temporary and seasonal
employees , all office clerical employees , professional
employees , guards and supervisors , as defined in the
Act
with the exception of Sinn, were union members in good
standing On the basis of the foregoing it is now found that
at all times material herein, the Union has had support of a
majority of the employees in the appropriate unit 10
Although union dues had been checked off from their
earnings, and they had received other indicia of union rep-
resentation, including the processing of other grievances, at
the hearing, the General Counsel took the position that
George H Kimble, Andrew C Labuda, Joseph H Novak,
and Henry Rutherford should be excluded from the unit
on the ground that they are contract truckmen in the
freight division, a classification specifically excluded in the
unit description The record revealed that their duties
would put them in that category As the appropriateness of
the unit as alleged in the complaint, although less than
optimum, was not raised as an issue in the pleadings and as
the record indicates that the unit found herein has a bar-
gaining history of approximately 20 years' duration, I find
that the unit as alleged in the complaint is appropriate and
that the four men named above should be excluded It is
also found, in accordance with the General Counsel's posi-
tion that Jack C Tubb, Robert Samsa, Kenneth Davies,
and John M Wagner, the latter having been alleged in the
complaint as a discriminatee, should be excluded from the
unit, as, by virtue of their retirement or resignation, they
are no longer employed by the Respondent
2 Majority issue
Mills testified that from October 1974 until at least April
1975 the Respondent deducted union dues from the earn-
ings of all employees in the unit described above and paid
these moneys to the Union 5 The relevant complement of
the Respondent's employees during this period consisted of
the following
Contract truckmen/moving division Edward G
Evich, Jr, Dominic Moderalli, Clayton K Oiechoneg,
Daniel Piluga and Gary Sinn 6
Hourlyaid drivers Clarence J Booth, James 0
Campbell,? Raymond De Vmney, Rocco Moderalli,
Warren Orechoneg (Union steward), William Vincent
and Robert Watson 8
In addition, from the undisputed testimony of Patricia L
Hodgson 9 and Boano, it is found that all the foregoing
their own helpers, occasionally such helpers are assigned and paid by the
Respondent
5 Abstracts of union records in evidence reveal that dues were checked off
and paid in full from January 1973 through May 1975
6 Sinn, the most recent member of the unit had been with the Respondent
for about 2 months in May 1975 There is no evidence that he had paid dues
to or otherwise supported the Union
7 Orechoneg testified that Campbell had started as a contract truckman
but for approximately the last 2 years he had operated a company-owned
truck and was hourly-paid
8 The record revealed that although Watson was referred to by Mills as a
member of management, he was employed as the part-time dispatcher As
the complaint alleges and the answer admits that the dispatcher is a part of
the unit found appropriate herein, I shall include Watson in the unit
9 Hodgson, a secretary employed by the Union, had custody of the
Union's dues records which she used to determine the amounts paid over
3 The duty to bargain, unilateral changes in terms and
conditions of employment
Although, as noted, the Respondent did not execute the
Master Agreement, formally adopting for themselves the
contract for the industry, it is clear that the Respondent,
prior to May 1975, historically had observed the terms and
conditions of that agreement, except for the variances that
will be discussed below
The Master Agreement requires that employers make
contributions to the Central States, Southeast and South-
west Areas Pension Fund, herein called the Pension Fund,
and the Central States, Southeast and Southwest Areas
Health and Welfare Fund, herein called the Health and
Welfare Fund Employer contributions to each of those
plans are based on specified weekly amounts for each em-
ployee covered by the agreement who has been employed
by the contracting employer for 30 days or more, with stat-
ed increases to become effective during the term of the
agreement
The Master Agreement also contains detailed proce-
dures for the processing of employee grievances, estab-
lishes a wage scale for hourly-rated drivers," and provides
for an assortment of fringe benefits, which include 8 paid
holidays per year, including employee birthdays, paid fu-
neral leave, and vacations The Master Agreement specifies
that a seniority list shall be posted by employers, at least
once every 12 months and that employees shall make writ-
ten complaints to the Company and union within 30 days
after such posting Any such complaint not settled thereaf-
ter shall be submitted to the grievance procedure 12 Finally,
the Master Agreement contains a union dues checkoff pro-
vision whereunder dues could be deducted from the em-
ployees' earnings by the Employer and be paid directly to
the Union
Warren R Orechoneg, the shop steward,13 testified that
when he began his employment with the Respondent, the
Union was already representing the Respondent's employ-
ees in the relevant unit Prior to May 1975, Orechoneg and
the other hourly rated employees were being paid in accor-
dance with the wage scale for hourly rated employees in his
classification as set forth in the Master Agreement In ad-
dition, he and the others also received all other fringe bene-
and due from various employees including the Respondent She also pre-
pared and sent out the monthly dues billing statement
Marquis Elevator Company, Inc 217 NLRB 461 (1975)
The Master Agreement provided that the minimum rental rates to be
paid to employees who lease their equipment to the employers shall be
determined by negotiations between the parties in each locality subject to
approval by joint state and area committeesl
Under the terms of the Master Agreement seniority shall prevail in
determining precedence for layoff and recall bumping rights and where
applicable for job bidding In addition to the annual seniority list posted
annually referred to above the Union was entitled to a seniority list each 6
months upon request
13 Orechoneg an hourly-rated driver was employed by the Respondent
for approximately 18 to 20 years and has been the Union steward at the
Respondents facility since 1965
FULLERTON TRANSFER & STORAGE LIMITED, INC 483
fits provided in that agreement , including funeral leave,
vacations , sick benefits , health and welfare insurance, pen-
sion contributions and, also, implementation of the griev-
ance procedure , as set forth in the Master Agreement 14
Michael L Boano , the Union ' s business representative,
testified that when he took over from Robert Eliser as the
Union's bargaining representative for the Respondent's
employees in the latter part of October 1974, the latter had
informed him that the Respondent was then delinquent in
its payments to the health and welfare and pension funds
In early November 1974, Eliser and Boano, and Joseph
Blumetti , pension fund field representative , on behalf of
the Union, met with Mills and William T Bodoh, who then
was the Respondent's attorney, at the Respondent's of-
fice 15
Eliser introduced Boano as his successor as union bar-
gaining agent for the Respondent 's employees and an
agreement was reached with regard to the method by
which the Respondent would become current in the pay-
ment of its contributions to the pension fund 16 By the
terms arranged , Mills agreed that the Respondent immedi-
ately would pay in full the contributions for two of the past
months for which moneys were owed, would pay the total
amount for December 1974, when that became due, plus
an additional monthly sum of $500 to liquidate the delin-
quency
At that meeting, as related by Boano, there was also
discussion concerning the Respondent's arrearages in
health and welfare premiums , wages and grievances, and
four copies of the Master Agreement were given to the
Respondent's representatives The union representatives,
contrary to the Respondent , contended that the Respon-
dent had previously signed a Master Agreement at some
unspecified time, but that its copy had been lost while the
Union was moving to different offices It was one of the
Union's requirements that the Respondent should sign the
current Master Agreement With respect to wages, the
Union expressed its desire to renegotiate the compensation
scales set for contract truckmen by the above-noted local
supplement executed by the Respondent and Union in
1970
Mills hesitated at signing the Master Agreement which
set forth the pay scale for the hourly rated employees and
at renegotiating the 1970 supplemental agreement on the
ground that the Respondent was in poor financial condi-
tion He also, therefore, stated that the Company was un-
14 It is undisputed that during the year that preceded the May 1975 strike
Orechoneg, as steward, processed approximately nine grievances with the
Respondent
1 The meeting had been arranged pursuant to a mailgram previously sent
by Boano on behalf of the Union to the Respondent which read as follows
"This will serve as official 72 hour notice under Article 45 Section 2 ' Arti-
cle 45 , section 2 , of the Master Agreement provides , in effect , that notwith-
standing anything contained in that agreement , in the event that any em-
ployer is delinquent in contribution payments to the health and welfare or
pension funds, after proper service of a 72-hour notice to the employer of
such delinquency , the union may take such action as it deems necessary
until such payments are made
16 In the letter , dated November 6, 1974 , to the Respondent from Joseph
Blumetti, pension fund field representative , the Respondents alleged pen-
sion delinquency as of that time was stated to total $6,813 50 for various
specified periods This figure was later adjusted
able to meet its current obligations to the health and wel-
fare and pension funds Mills also requested an adjustment
in the Master Agreement as he could no longer afford to
pay the going rate Boano told Mills that he had no control
over the rates for the hourly paid employees or the wage
and cost-of-living increases that were scheduled for July 1,
1975, as those were provided for in the Master Agreement
However, Boano promised to try to cooperate with the
Company in other ways and advised Mills that all items on
the supplement for the contract truckmen were negotiable
Mills, in his testimony , conceded that he had met with
pension fund field representative Blumetti in the fall of
1974, who had told him at that time that the Respondent's
obligations to that fund must be paid The record contains
a series of letters , authenticated by Mills, between him and
Blumetti, commencing on November 26, 1974, which re-
flected the Respondent 's temporary effort to become cur-
rent in its obligations to the pension fund According to
Mills, during his meeting with Blumetti, the latter dictated
to Mills' secretary , for Mills' signature , a letter to the pen-
sion fund setting forth the terms of the payment plan as
described above , which included an immediate payment of
$1,904 to cover 2 months for which payments were past
due, which sum included $ 500, the amount to be paid each
month in addition to the current contribution in order to
liquidate the balance of the delinquency The letter dis-
claimed liability for certain weeks in December 1971, and
March 1973, for which claims payment previously had
been made by the Respondent to the pension fund Mills
signed this letter and conveyed it to the pension fund
The approval of the payment plan was confirmed in a
letter , dated December 2, 1974, to the Respondent , signed
by Blumetti , wherein receipt of the Respondent 's initial
payment was acknowledged Mills testified, however, that
the agreement thereafter was exceeded by the pension fund
when the Respondent received a letter, dated December 5,
1974, from Blumetti , purporting to supplement his corre-
spondence of December 2 The December 5 letter advised
that, effective February 1, 1975, there would be an 8 per-
cent interest fee charged on all the past due balances of all
accounts and that any payments received will first be ap-
plied to the interest charge with the remainder being ap-
plied to the moneys due on the account Mills contended
that the 8 percent interest charge had not been a part of the
deal he had made to make payments for current months
and to liquidate arrearages at the monthly rate of $500
Accordingly, Mills made no further payments to the pen-
sion fund and by mid-May 1975, approximately 2 weeks
before the strike, according to correspondence to the
Union from the pension fund's counsel , the Respondent's
obligation to that fund had increased to $7,346 The fund's
counsel , in its letter , also asked that the Union take steps to
make the Respondent 's account current by either serving
72-hour strike notice or by referring the matter to local
counsel for legal action Accordingly, a 72-hour notice,
identical to the mailgram that had been sent in advance of
the November 1974 meeting , was again forwarded to the
Respondent
Following the meeting between the representatives of the
Respondent and Union in November 1974, described
above, William T Bodoh, who had attended that meeting
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the Respondent's attorney wrote the following letter,
dated November 11, 1974, to the Union's business repre-
sentative, Eliser, illustrative of the status of bargaining be-
tween the parties at the time
Re Fullerton Transfer Contract
Dear Mr Eliser
This letter will confirm the discussions in our meet-
ing of Friday morning regarding the formal contract
between Fullerton and Local 377 We discussed your
contacting Mr Richard Mills at Fullerton in order to
establish a mutually agreeable time when he can meet
with you and the members of the bargaining unit to
formally execute the contract and to discuss some
other matters that must be resolved These include the
establishment of a seniority list, the necessity for bid-
ding for various jobs in the unit, the discussion of con-
tracts for both local and over-the-road operations and
health and welfare and other fringe benefit options
open to the employer and the members and to discuss
the Teamster Health & Welfare coverage in order to
eliminate any unnecessary expense that some unit
members may be going to in providing overlapping
coverage As we discussed in our meeting, the formal
signing of the contract is in no way intended by either
the union or the company to change our historic bar-
gaining relationship This will also acknowledge your
formal notification to Fullerton that the recognized
shop steward is Mr Warren Orechoneg
We appreciate your taking the time to sit down and
discuss with us these matters of mutual concern and
we hope this meeting will be beneficial to both the
Company and its employees in future operations Be-
cause of Mr Mills' previous commitments, it appears
that the meeting we discussed cannot be held until the
week of November 25 at the earliest so that in your
planning we wish you would keep that time frame in
mind 17
Boano testified that in January 1975 he met with Mills
and the Respondent's operations manager, Kollar, and
sales manager, Huston, on about five different occasions
These meetings, which concerned essentially the same sub-
ject matter , related to (1) the Respondent's failure to meet
its obligations to the health and welfare and pension funds,
(2) the Union's request that a new seniority list be posted in
accordance with the provision for the annual list required
under the Master Agreement, (3) the Union's protest
against the Respondent's practice of deducting money
from the employees' pay for claims based on alleged pilfer-
ages and shortages without following the hearing proce-
17 Although the November I I letter indicated that carbon copies thereof
had been sent by Bodoh to Mills, Boano, and Orechoneg, Mills denied that
he had received a copy of the letter, that the position set forth therein had
been authorized, or that he even had discussed its content with Bodoh
Mills' testimony with respect to this letter was directly contradicted by Bo-
doh who was subpenaed later in the proceeding Bodoh, who had not been
present during Mills' testimony, testified as to the accuracy of his letter in
relation to what had occurred during the underlying meeting with the
Union Although under the rules of agency, the Respondent, in any event,
would be bound by the representations of its attorney Mills disclaimers
thus controverted, are not credited
dures set forth in the Master Agreement, and (4) wages
As a result of these meetings, the Respondent posted a
seniority list, dated January 28, 1975,18 and began to com-
ply with the contractual procedure concerning loss claims
for alleged shortages
Accordingly, pursuant to the Master Agreement, in
April 1975 two relevant grievances were processed through
the second stage of the grievance procedure-the grievance
of William Vincent, a driver, with respect to his seniority,
and that of Dominic Moderalli, a contract truckman, who
was protesting the Respondent's action in deducting more
than $800 from his compensation on the ground of alleged
shortages As no resolution of the grievances of Moderalli
and Vincent were possible during point discussions at the
local level in March 1975,19 the matters were set for hearing
at the next level, before the local cartage committee 20
Moderalli's grievance was considered on April 17, at which
time the Respondent was represented by its operations
manager, Kollar Mills, who had been out of town on April
17, was present as the Respondent's representative on April
23 when the committee reviewed Vincent's grievance The
grievants were successful in each case Thereafter, Mills
heatedly informed Boano that the committee proceedings
had been "rigged," with his competitors sitting in judgment
of him
During a telephone conversation between Mills and
Boano on April 24, the day after the second local cartage
committee proceeding, Boano tried to calm Mills Mills,
however, accused Boano of having taken advantage of
Kollar's inexperience in labor relations at the Moderalli
grievance proceeding and called the local cartage commit-
tee a "kangaroo court " He stated that he would not com-
ply with the committee's decision to reinstate Vincent's se-
niority 21 and would lay off everybody up to Vincent's
seniority date to get him
Boano testified that Mills also told him that the hourly
employees would have to take a cut to $5 an hour as he
could get college kids to work for $3 to $4 an hour Boano
replied that a meeting would be required to discuss any
reduction in wages Mills replied that there would be no
meeting to discuss wages and if Boano did not like what he
was doing, he would shut down the Company 22
18 In accordance with the Master Agreement , Mills, at the time the senior-
ity list was posted, asked Union Steward Orechoneg to remind the employ-
ees to submit any protests they may have as to their seniority, as listed, in
written form within 10 days Thereafter, two grievances relating to seniority
were filed
19 Although several unwritten employee complaints were resolved in Jan-
uary 1975, by the Respondent and Union Steward Orechoneg, there were no
meetings between the Respondent and the Union in February However, in
March, there were three meetings During that month , the grievances of
Vincent and Moderalli were discussed by representatives of the Respondent
and Union with the participation of the respective grievants
20 The Master Agreement, pp 99-100, provides for the establishment of
joint local area committees, herein called the local cartage committee, con-
sisting of an equal number of members appointed by employers and unions
with jurisdiction over disputes and grievances involving local unions or
complaints by local unions in their respective areas Such a committee must
have at least three members from each group, none of whom, of course, may
be interested in the issue presented
2i At that time, Vincent was in layoff status
22 Although the threat to shut down the Company as described above
which Mills denies making , was alleged in the complaint as a violation of
Sec 8(a)(1) of the Act, I do not find it necessary to make a credibility
finding with respect to this incident as no employees were present and the
FULLERTON TRANSFER & STORAGE LIMITED, INC
During this conversation, Boano asked when the next
grievance meeting could be held as other grievances had
more recently been filed Mills replied that there could be
no more grievance meetings as he was not getting "a fair
shake" and as Boano had been leaning too heavily on him
In that connection, Mills stated that he would not service
the grievance filed by Andy Labuda, a contract truckman,
and if Labuda continued to push his grievance Mills would
cancel his contract 23 Boano replied that it would be illegal
to cancel the lease with Labuda without first meeting with
a union business representative
From the time of that conversation, the Union has not
been successful in meeting with the Respondent to serve
and discuss grievances
Copies of records of the health and welfare fund, re-
ceived in evidence, reveal payments had been made to that
fund by the Respondent for the months of July through
December 1974, and for January 1975 24 However, the Re-
spondent did not continue to make payments to the health
and welfare fund after January 1975
On May 2, 1975, Mills posted on the window of the
dispatcher's office a notice of that date addressed to all
contract truckmen/moving division The notice, on the
Respondent's stationery and signed by Mills, stated that in
order to meet competition, effective that date, the contract
truckmen's compensation will be adjusted to the percent-
age of hnehaul figures shown There followed a listing of
the various specified moving services performed by con-
tract truckmen and the adjusted percentage to be paid to
them for each listed operation In almost every instance,
the listed procedure was to be compensated at a rate of 50
percent of the linehaul figure, representing a reduction
from the 65 percent previously paid to these drivers 25
The last paragraph of the May 2 notice provided as fol-
lows
Local Moving
It is also required, commencing immediately that
Health & Welfare Pension will be paid either direct by
the contract truckmen to the Union or with proper
authorization, the company will deduct these pay-
ments and remit to the Union programs
Prior to the May 2 notice, in accordance with articles 54
and 55 of the Master Agreement, the Respondent had
made its payments to the health and welfare and pension
funds on noncontributory bases
matter therefore would not be violative of the Act
23 The record is not clear as to the nature of Labuda's grievance Al-
though the grievance was being processed by the Union as noted Labuda
as a contract truckman in the freight division, is not a member of the unit
found herein In any event, the alleged threat to fire Labuda also could not
be violative of Sec 8(a)(i) of the Act as it too, was not made in the presence
of employees
24 These records run contrary to Boano s testimony that the Respondent
had made payments for January and February 1975, but had not paid for
December 1974 causing him to ask Mills the reason for the missing contri-
bution for that month
25
Although the complaint does not allege disparate treatment of union
employees as a violation of Sec 8(a)(1) and (3) of the Act the record re-
vealed that the wages of the Respondent's nonunion office employees were
increased on or about the time the notice was posted When asked if the
amount of such increases equaled $50 per week per employee Mills did not
deny the figure but stated that he would have to look it up
485
Mills conceded that the May 2 notice above described
had been prepared and posted without prior notice to or
negotiation with Boano as the Union's representative
However, Mills contended that the proposed reduction
in compensation had been discussed about a week before
the notice was posted during a meeting between Union
Steward Orechoneg, Bob Watson, the dispatcher, and him-
self at the End of the Tunnel Lounge, situated in a Youngs-
town building where the Respondent maintains business
offices Mills related by way of background that he had
earlier discussed the proposed changes in the contract
truckmen's compensation with the Respondent' s sales
manager, Huston, and operations manager, Kollar, and
Watson Watson then had proposed that Mills meet with
him and Orechoneg at the lounge to discuss a possible ar-
rangement whereunder Watson and Orechoneg would take
over the contract truckmen part of the operation as mid-
dlemen, supervising movements in both local and interstate
traffic The compensation for the contract truckmen would
be reduced to the percentages later effectuated on May 2
and Watson and Orechoneg would receive a financial over-
ride in excess of the 50 percent to be paid the contract
truckmen to pay for their administrative efforts in hiring
and supervising contract truckmen in the movement of
household goods The meeting lasted an hour and one-half
Approximately 1 week later, Orechoneg sent word to Mills
through Watson that he was not interested in undertaking
the arrangement Nothing further was done until the May
2 notice was posted
Orechoneg denied Mills' version of the meeting 26 The
steward testified that they had met at the request of himself
and Watson who had wanted to discuss with Mills the pos-
sibility of their becoming contract truckmen That topic
had been the principal matter discussed He reiterated his
denial that Mills had ever discussed a reduction in the con-
tract truckmen's earnings before the posting of the May 2
notice
A strike began among the Respondent's contract truck-
men and hourly rated drivers on or about May 29, 1975,
which continued in effect at the time of the hearing 27
During the course of the strike, the parties met in the last
half of July 1975, and proposals were exchanged for a set-
tlement agreement On about August 2, the union drivers
voted to reject Respondent's proposals and no further
meetings were held for that purpose
4 The Respondent's position
Mills' basic contention is that, during the time material
herein, the Respondent had not signed the Master Agree-
ment and had no duty to bargain with the Union, particu-
larly with respect to the contract truckmen whom he now
considers to be independent contractors rather than em-
ployees Contrary to the Union, Mills testified that the
Respondent's labor relations policy is directed on a "one-
to-one relationship" with its drivers whose employment
terms are settled during separate discussions with each
driver whose employment terms are settled during separate
26 Watson, the remaining participant, did not testify at the hearing
27 The nature of the strike and the surrounding events will be considered
in detail infra
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussions with each driver at the time of hire, a policy
that has been in effect during his 22 years with the Respon-
dent Accordingly, when employees are hired, Mills testi-
fied, he sits down with them and separately negotiates their
hourly pay rates,28 and probationary periods, 2 based upon
work experience and other personal qualifications Health
and welfare and pension benefits are also negotiated with
the individual employees and the Respondent's contribu-
tions to the health and welfare and pension fund, prior to
May 2, were the result of accords reached with various
employees themselves as to what their terms and condi-
tions of employment would be rather than payments in
conformity with the provisions of a binding collective-bar-
gaining agreement or of a more generalized duty to bar-
gain
Again, as to the Respondent's grievance processing prac-
tices, Mills testified that during his years with the Compa-
ny, the Respondent generally has been successful in resolv-
ing employee complaints without intervention In a
minority of instances where individuals or groups of em-
ployees insisted on bringing Teamster representatives to
advise them at grievance meetings with the Respondent's
officials, such union representatives were always courte-
ously treated by Mills He conceded that such representa-
tives, including, at various times, Eliser and Boano, partici-
pated fully in such discussions, utilizing union grievance
forms
With respect to the Respondent's participation in the
second stage processing of the grievances of Moderalli and
Vincent in April 1975, Mills testified that these matters,
too, were being worked out on an individual basis, but that
he had sent Kollar to one meeting of the local cartage com-
mittee to find out what it was all about and he had attend-
ed another such meeting Both Kollar and he had concur-
red that the grievance procedure was not for the Company
Mills, contrary to the Union, except in connection with
the hearing herein, denied that he had ever signed a Master
Agreement, examined it or used it at various meetings he
had had with the Union's representatives
On the matter of the Respondent's participation in the
pension and health and welfare funds, Mills testified that
in October 1974, when he became more active in the
Respondent's operations after the departure of the former
vice-president and general manager, he became aware that
the Respondent was in arrears on its payments to those
funds He concedes his participation in the arrangement
made with the pension fund's field representative, Blumet-
ti, as described above, where the Respondent paid contri-
butions into the pension fund for certain months immedi-
ately, pledged to stay current, and to liquidate the
arrearages at a rate of $500 a month However, as noted,
Mills discontinued payments after the month of January
1975, when the Union, in December 1974, advised him that
an 8 percent interest charge would be assessed on the out-
standing arrearages
Starting in October 1974, Mills also began to investigate
28 Generally, operating personnel advance from hourly rated drivers to
contract truckmen, an arrangement that affords incentive
29 The Master Agreement specifies a probationary period of 30 days
Mills testified that he would vary this interval at his option as needed
the Respondent's arrearages in health and welfare fund
contributions, seeking to coordinate benefits of the point
health and welfare fund with a private plan underwritten
by an outside carrier utilized for other employees in the
Respondent's employ Mills contended that he thereafter
paid contributions to the Teamster Health and Welfare
Fund only to avoid a strike and is not certain where the
Respondent stood with respect to that fund at the time of
the hearing
In any event, the Respondent has taken the position that
it would not be appropriate to make health and welfare
and pension contributions on behalf of the contract truck-
men as they were not employees of the Respondent, but,
rather, were independent contractors Mills found support
in this view in special bulletin #29, dated October 1975,
issued by the health, welfare and pension funds over the
signature of the funds' executive director, addressed to af-
filiated employers This document stated, in effect, that
owner-operators, vendor salesmen and other individuals
who are employees are eligible to participate in the health
and welfare and pension funds, have contributions made in
their behalf and receive benefits from those funds when
appropriately eligible However, individuals who are not
employees as defined in the Act, but are independent con-
tractors, employees, et al, are ineligible to participate in
jointly administered tax exempt funds such as those in
question regardless of whether they are covered by a col-
lective-bargaining agreement Participating employees
were urged in the bulletin to determine whether any contri-
butions have been made on behalf of ineligible individuals,
and, if so, to notify the funds in order to obtain refunds 30
Mills denied having threatened employees with a shut-
down of the Respondent's operations "if pressed too hard,"
stating that he had merely advised them that the Company
could not continue to operate with a deficit, and had en-
couraged them to work harder to help the Company
While identifying the previously posted seniority list,
dated January 28, 1975, Mills asserted that the Respondent
had not independently prepared the document, as asserted
by Boano Contrary to the Union's contentions, seniority
had not been utilized by the Respondent as a basis for
layoff, recall, or compensation The list in question had
been prepared at a meeting with contract truckmen and
hourly rated employees in Mills' office on a Saturday in
January 1975, at which time Mills merely had reduced to
writing what the employees told him concerning their se-
niority At that time, Mills had protested the impracticabil-
ity and inapplicability of such a list to the Respondent's
operation, but as those present seemed to want a seniority
list, he was prepared to oblige
Finally, the changes in compensation for contract truck-
men posted in the notice of May 2 was caused by the
Respondent's stated need to be competitive After months
of investigation, Mills had determined that his company's
30 Although contract truckmen in the moving division have been found to
be employees it is relevant to note that bulletin #29, issued in October
1975 long postdated the delinquencies in the Respondent's accounts with
the health and welfare and pension funds and, therefore, could not have
been a factor when Mills determined to withhold further payments In adds
Lion the Respondent also withheld such payments on behalf of hourly rated
employees as well as contract truckmen
FULLERTON TRANSFER & STORAGE LIMITED, INC 487
competitors were paying their contract truckmen 50 per-
cent of line haulage receipts while the Respondent was
paying 65 percent Before implementing the plan, Mills
had reviewed the matter with Kollar, Huston, and Watson,
as noted, and allegedly had also discussed it with Orecho-
neg and Watson at their meeting at the End of the Tunnel
Lounge, as described above He conceded that he had not
given advance notice to Boano as he felt that the Respon-
dent was under no obligation to bargain with respect to the
affected contract truckmen
5 Discussions and findings
Based upon my observation of the witnesses and the
clear weight of the evidence, I find Mills' denial of the
existence of a long-standing and continuing collective-bar-
gaining relationship between the Respondent and the
Union, as detailed above, to be frivolous
It is evident that at least until August 1975, the Respon-
dent continued to recognize the Union as the representa-
tive of its employees, both hourly rated and contract truck-
men, and to bargain with the Union's successive business
representatives, Eliser and Boano Further, although the
parties did not execute any document that would constitute
a formal adoption of the current Master Agreement, it
might be argued that the parties' course of conduct through
May 29, 1975, constituted, in effect, an adoption of that
contract In addition to having executed the 1970 agree-
ment, which was on its face a contract supplement, until at
least April 1975, the Respondent withheld dues from the
compensation of its hourly rated and percentage-paid em-
ployees and forwarded them to the Union Business rec-
ords showed that the Respondent made health and welfare
contributions to the relevant Fund on behalf of the per-
centage-paid and hourly paid employees as specified in the
Master Agreement from July 1974, through January 1975,
and that Mills, in November 1974, acknowledged his
company's obligations to the pension fund by entering into
a written arrangement for the liquidation of the
Respondent's arrearages During the relevant period, griev-
ances were processed with the Union and the Respondent
complied with the Master Agreement by participating in
second step grievance proceedings before the local cartage
committee twice in April 1975 Prior to May 1975, hourly
rated employees were paid at the rate specified in the Mas-
ter Agreement and employees received all fringe benefits
set forth in the Master Agreement Even after the strike
began, the Respondent's representatives met with the
Union and negotiated, although unsuccessfully, in an ef-
fort to reach a new agreement
In Marquis Elevator Company, Inc," where a collective-
bargaining agreement was found to have been adopted, the
Board approved the following discussion by the Adminis-
trative Law Judge
The Board has held, in deciding whether an employ-
er and a union have agreed upon a contract, that it is
not bound by the technical rules of contract law Lo-
zano Enterprises v N L R B, 327 F 2d 814 (C A 9,
31 217 NLRB 461 (1975)
1964) In John Wiley & Sons v Livingston, 376 U S
543, 550 (1964), the Supreme Court held that a collec-
tive-bargaining agreement is not governed by the same
common law concepts which govern private contrac-
tors, nor is it an ordinary agreement comparable to
one for the purchase of goods and services Cf Operat-
ing Engineers v Flair Builders, Inc, 406 US 487
(1972) Here, as in Manor Research, Inc, 165 NLRB
909 (1967), the continued utilization of the welfare,
pension and educational funds, the use of the Union
for the settlement of grievances, "demonstrate the
existence of a continuing relationship between the Re-
spondent and the Union" Marquis contributed to
the trust funds established by that contract and paid
the wage scale established therein
In the instant case, unlike the situation in Marquis Ele-
vator, supra, Mills did not express an intention to work
under the industrywide agreement and, although possible,
it is not clear that the Respondent herein had ever formally
signed a predecessor Master Agreement However, as the
General Counsel herein merely contends that a longstand-
ing bargaining relationship exists between the Respondent
and the Union, pursuant to which the Respondent is obli-
gated to bargain but has not alleged or argued that the
Respondent, by its conduct, had adopted and was bound
by the Master Agreement, it is not necessary, in finding the
existence of a bargaining relationship, to determine wheth-
er that contract, in fact, had been adopted
Accordingly, on the basis of the foregoing, noting, as
found above, that all employees in the bargaining unit
herein except Sinn were members of the Union in good
standing during all times material herein, I find, as alleged
in the complaint, that during the relevant period the Union
has been the representative for the purpose of collective
bargaining of the employees in the appropriate unit herein-
above described and is now the exclusive representative of
all employees in said unit for such purpose 32
I further find that the Respondent's actions in reducing
rates of pay, terminating the grievance procedure and dis-
continuing payments to the health and welfare and pension
funds respectively, all constituted illegal unilateral changes
in the terms and conditions of employment of the affected
employees and constituted refusals to bargain in violation
of Section 8(a)(5) and (1) of the Act 33
As the Respondent's threats to close the plant for unlaw-
ful reasons, alleged in the complaint, were made to union
officials and had not occurred in the presence of employ-
ees, no independent violation of Section 8(a)(1) of the Act
is found in connection therewith
32 Johnson Electric Company Inc 196 NLRB 637 642 enfd 472 F 2d 161
(C A 6 1973)
33 N L R B v Benne Katz d/b/a Williamsburg Steel Products Co 369
U S 736 (1972), Marquis Elevator Company, Inc, supra Johnson Electric
Company Inc supra Viewlex Inc, 204 NLRB 1080 1082 (1973) Mills
alleged references to the proposed pay reduction during his meeting with
Orechoneg at the End of the Tunnel Lounge does not affect the unilateral
nature of the action thereafter taken Even if Mills' version of the meeting
was to be credited and Orechoneg, arguendo was a union official with
whom such a matter could be negotiated, Mills merely gave notice of his
intent to reduce wages, rather than to bargain on the matter Huttig Sash
and Door Company Inc, 154 NLRB 811, enfd 377 F 2d 964 (C A 8 1967)
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C The Unfair Labor Practice Strike
On about May 29, 1975, certain of the Respondent's
contract truckmen/moving division and hourly rated driv-
ers went on a strike which was still current at the time of
the hearing The complaint alleges that the strike was pro-
tected and the General Counsel contends that it had been
caused and prolonged by the Respondent's unfair labor
practices
Boano and Orechoneg testified credibly that Orechoneg,
on Boano's instructions, had polled the members of the
unit By the end of the first week in April 1975, Orechoneg
reported to Boano that the unit employees had informed
him of their desire to engage in a strike against the Respon-
dent The issues that formed the basis for the strike, ac-
cording to Boano and Orechoneg, were the Respondent's
continuing delinquency in its payments to the health and
welfare 34 and pension fund and the Respondent's proposal
to reduce the wages of contract truckmen from 65 to 50
percent This proposal was made by the Respondent dur-
ing a meeting in March or early April at which time it was
rejected by Boano
Boano credibly testified that on about May 5, immedi-
ately upon receiving in the mail the Union's copy of the
notice that the Respondent had posted on May 2, an-
nouncing that the contract truckmen's pay percentages
would be reduced and that the Respondent would no lon-
ger make payments to the health and welfare and pension
funds on behalf of the employees, he telephoned Mills to
protest the Company's actions In response to his admoni-
tion that the Respondent could not undertake the pay re-
ductions without first consulting the Union, Mills stated
Boano did not own the Company and that he would do as
he saw fit Boano requested a meeting to discuss the mat-
ter Mills replied that there was nothing to discuss That
was the way it was going to be
On about May 29, as the strike began, Boano repeated to
Orechoneg the above reasons for the strike and informed
him that it had been sanctioned by the Union at the Inter-
national, regional, and local levels In accordance with the
foregoing, I find that the strike was caused by
Respondent's failure and refusal to meet its obligations to
the health and welfare and pension funds 35 and by its ac-
tion in unilaterally reducing the percentage amounts to be
paid contract truckmen I also find that a contributing
cause of the strike was the Respondent's refusal to process
grievances after April 24,36 and that the strike thereafter
was prolonged by the discharges of striking employees, dis-
cussed below
D The Discriminatory Discharge of the Striking Employees
and the Reinstatement Offer
1 The discharges
The complaint alleges and the record reveals that shortly
after the start of the strike, the Respondent terminated the
employment and/or the truck lease agreements of employ-
ees Clarence Booth, Warren Orechoneg, Rocco Moderalli,
Howard Price, William Vincent, Robert Watson, John
Wagner," James Campbell, Raymond De Vinney, Clayton
Orechoneg, Daniel Piluga, and Dominic Moderalli 38
The Respondent's letter, substantially similar copies of
which were sent to the hourly rated employees, read as
follows
It is mandatory that you be available for work and
handle deliveries under the (name of relevant custom-
er) Contract with Fullerton Transfer tomorrow morn-
ing at 8 a in The failure to report for work at Full-
erton tomorrow, will necessitate your discharge and
the hiring of a replacement driver, since this
(Customer's name) Contract is vital to the economic
future of the company
The Respondent began to send copies of the letters
above-quoted to its employees on June 2, 1975, and like
letters were sent to Watson, Vincent, Price, and Rocco
Moderalli on June 3, and to Campbell and De Vinney on
June 5 At the same time, contract truckmen, including
Daniel Piluga and Clayton Orechoneg, received notices
from the Respondent that their lease agreements were ter-
minated, effective May 30 and June 2, respectively Con-
tract truckman Dominic Moderalli received a letter, dated
June 3, from Sales Manager Huston, which stated that
Moderalli's refusal to make a specific delivery might result
in damages for which the Respondent would hold him per-
sonally liable
Thereafter, the strike continued Mills testified that no
replacements had been hired for the striking employees in
spite of his efforts
On July 14, 1975, at a meeting at the National Labor
Relations Board's Regional Office in Cleveland, Ohio, at-
tended , inter aba, by Mills, the Respondent's attorney,
Richard P McLaughlin , Boano, Orechoneg and the
Union's counsel, Anthony P Sgambati II, Sgambati in-
formed the Respondent's representatives that the employ-
ees were willing to go back to work unconditionally Mc-
Laughlin replied that the offer would be taken under
advisement
2 The reinstatement offer
34 Employees had complained to union officials at the time that their
outstanding hospitalization and health insurance claims had not been paid
as the premiums had not been covered
35 In the first week of May 1975, prior to the start of the strike, the
Union's negotiating committee met in a restaurant to consider the
Respondent's conduct with respect to health, welfare, and retirement bene-
fits and the percentage cut in the contract truckmen's compensation About
a week later, Boano and Orechoneg again met at the union hall and dis-
cussed the same issues That was the last conference before the strike
36 Boano and Orechoneg both described their unsuccessful efforts to dis-
cuss grievances with Mills
On the following morning at or about 8 o'clock, Mills
approached a group of pickets, including Union Steward
Orechoneg, Piluga, Rocco Moderalli, and Vincent while
37 Although Wagner was alleged in the complaint as a discriminatee Ore-
choneg testified that Wagner had resigned from the Respondent's employ
about 2 months before the start of the strike Accordingly, no further con-
sideration will be given to his status
38 The complaint was amended at the hearing without objection to per-
mit the addition of Dominic Moderalli, inadvertently omitted, as an alleged
discriminatory dischargee
FULLERTON TRANSFER & STORAGE LIMITED, INC
they were standing in front of the Respondent's facility
Mills told Orechoneg in the presence of the others, that he
(Orechoneg) had offered to go back to work and there was
work Before Orechoneg could reply, Boano walked up and
he referred Mills to him Orechoneg then saw Boano and
Mills walk up the street together, but did not hear their
conversation Orechoneg, thereafter, did not discuss the
matter with Boano, assuming only that Boano had dealt
with the Mills' offer As noted, the employees did not go
back to work
To show that Mills' offer of work was insincerely
grounded and incompetent on the ground that Mills alleg-
edly had been intoxicated at the time, the General Counsel
called Daniel Piluga, a contract truckman, as a witness and
recalled Orechoneg and Boano 39
Piluga testified that on the morning of July 15, at the
picket line, he overheard Mills ask Orechoneg what time he
had gotten in during the night before, telling Orechoneg
that he (Mills) had just gotten in not too long before, at or
about 5 30 a in and that "they had tied one on " He
then heard Mills ask, "Are you ready to go back to work9
I have plenty of work" At that moment, Boano ap-
proached and Orechoneg told Mills that he would have to
talk to Boano When Boano arrived, Mills put his arm
around him and the two men walked away together
Piluga testified that he had been a Youngstown police
officer who, in that capacity, had arrested individuals for
being intoxicated He gave a detailed description of Mills'
appearance on the morning of July 15 to support his expe-
rienced conclusion that Mills had been under the influence
of alcohol at the time Orechoneg, recalled as a witness,
also described Mills' appearance in a like fashion 40
Boano, too, testified that Mills displayed the symptoms
of intoxication on the morning of July 15 as they walked
together away from the pickets, for which he had remon-
strated with him
Mills testified that although he may have been out late
the night before, there was no basis for the characteriza-
tions made as to his appearance on July 15 He had driven
himself to work in good condition, freshly showered,
shaved and neatly dressed and, in fact, had conducted an
active day's business on that date
Mills recalled that he had spoken to Warren Orechoneg
and several other employees on the picket line at or about
8 a in on the date in question Mills told Orechoneg that
he had been at the meeting on the day before and had
heard Mr Sgambati say the men would go back to work
unconditionally He indicated the trucks in the yard, stated
that the Company has work and asked if he would please
get back to work At that moment, before Orechoneg could
answer, Boano walked up Mills told Boano that he was
offering work to the employees on the unconditional return
offer made by Sgambati in his presence on the day before
and asked if the men will now come back to work Mills
testified that Boano had replied that the men will return to
39 Boano, in his initial testimony, had not mentioned that the Respondent
had accepted the Union's unconditional offer to return to work and Orecho-
neg although he described the offer had not referred to Mills condition at
the time
40 On cross-examination, Orechoneg testified that he had not described
Mills' appearance in his initial testimony because he had not been asked
489
work if he signed the contract, paid the pension, health and
welfare and settled the grievances At that point, Boano's
demands trailed off
As noted, thereafter, in late July, the Respondent and
Union met to negotiate the terms of a strike agreement and
written proposals were submitted to the Union About Au-
gust 2, the employees voted to reject the proposed agree-
ment and the strike, as noted, was still in progress at the
time of the hearing
I do not find it necessary to resolve the foregoing con-
flict as to Mills' capacity to conduct his business affairs
when on the morning of July 15, according to the undisput-
ed testimony, he verbally informed Boano and Orechoneg,
the Union's principal representatives, that he was accept-
ing the Union's unconditional offer to return to work,
made the preceding day on behalf of the striking employ-
ees Even if the Union did question the sincerity of Mills'
offer, had it remained firm in its purpose, the Union could
only have gained by accepting the offer and thereby ending
any question in connection herewith
Rather, I credit Mills' testimony that when he informed
Boano of his readiness to accept the Union's unconditional
offer to return to work Boano then superimposed precondi-
tions to the employees' return which, in fact, revoked the
earlier offer In so concluding, it is noted that the testimo-
ny concerning Mills' allegedly intoxicated condition, as
noted, was not presented spontaneously in the General
Counsel's case in chief, but only after Orechoneg, without
characterizing Mills' condition, had testified that the em-
ployees were still on strike although Mills had accepted the
Union's unconditional offer to return to work Boano, in
his initial testimony, had described the events leading up to
the strike, but had not mentioned the offer of reinstatement
at all Even more basic, however, is the implausibility of
the Union's position that discharged employees who at-
ready had been on strike for 1-1/2 months and were main-
taining an unconditional offer to return to work, would
refuse such employment when offered under the circum-
stances alleged herein
3 Discussions and findings
As the strike that began on or about May 29 was previ-
ously found to be an unfair labor practice strike, the Re-
spondent violated Section 8(a)(1) and (3) of the Act when,
during the first week of June 1975, it discharged the 11
unfair labor practice strikers named in the complaint, as
amended The strike having been caused and prolonged by
the Respondent's unfair labor practices, as noted by the
Supreme Court in Mastro Plastics,41 "the striking employ-
ees do not lose their status and are entitled to backpay
even if replacements for them have been made " The Re-
spondent also was obligated to offer full and immediate
reinstatement to the strikers, without prejudice to their se-
niority and other rights and privileges, upon their having
applied unconditionally to return to work 42 As found
41 Mastro Plastics Corp v N L R B, 350 U S 270 (1956), Courtesy Volks
wagen Inc, 200 NLRB 84, 95 (1972), ITT Henze Valve Service, 166 NLRB
592 (1967), 170 NLRB 1320 (1968), enfd 435 F 2d 1308 (C A 5, 1971)
42 Mastro Plastics Corp, supra, N L R B v E T Dell, t/a Waycross Ma-
chine Shop 283 F 2d 733 741 (CA 5, 1960)
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, when the Union's July 14 unconditional offer to
return to work was not accepted by the Respondent and
the Union was merely told on that occasion that its offer
would be taken "under advisement," this response did not
fulfill the Respondent's obligations at the time under Sec-
tion 8(a)(3) of the Act and constituted a refusal to rein-
state Having found that the Union had made valid uncon-
ditional application for reinstatement on behalf of all the
discrimmatees on July 14, at which time the Respondent
refused to reinstate them, I find that the Respondent's re-
fusal on that date constituted additional violation of Sec-
tion 8(a)(3) and (1) of the Act 43
However, when on July 15, the Respondent, through
Mills, informed the Union's representatives, Boano and
Orechoneg, that he was accepting the unconditional offer
to return to work and validly offered immediate reinstate-
ment,44 the backpay liability for the discrimmatees was
tolled 45
Inasmuch as the 11 employees have remained on strike
since the offer was made, they still maintain their status as
unfair labor practice strikers and are entitled to reinstate-
ment upon application 46
Therefore, for the reasons stated, I find that it has been
established by a preponderance of the evidence that as
specified herein, the Respondent has violated Section
8(a)(1), (3), and (5) of the Act However, for the reasons set
forth above, no independent violation of Section (a)(1) of
the Act has been found in connection with the
Respondent's alleged threat to close the plant
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof
CONCLUSIONS OF LAW
truckmen/moving division and the dispatcher, but exclud-
ing all contract truckmen/steel and freight division, pack-
ers, temporary and seasonal employees, all office clerical
employees, professional employees, guards and supervisors
as defined in the National Labor Relations Act, as amend-
ed, constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act
4 Prior to and since October 1974, and at all times ma-
terial herein, the Respondent has recognized and bar-
gained with the Union as the exclusive collective-bargain-
ing representative of the employees in the appropriate unit
described above
5 Prior to and since October 1974, and at all times ma-
terial herein, the Union has been the exclusive bargaining
representative of all employees in the appropriate unit de-
scribed above for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
6 By unilaterally and without prior notice or good faith
negotiation with the Union, changing the compensation
rates to be paid employees in the above-described appro-
priate unit, discontinuing health and welfare and pension
contribution payments on behalf of unit employees and by
discontinuing the processing of grievances under the estab-
lished grievance procedure, and by all of the foregoing
conduct, the Respondent has engaged in unfair labor prac-
tices in violation of Section 8(a)(5) and (1) of the Act
7 By discharging unfair labor practice strikers Clarence
Booth, Warren Orechoneg, Rocco Moderalli, Howard
Price, William Vincent, Robert Watson, James Campbell,
Raymond De Vinney, Clayton Orechoneg, Daniel Piluga,
and Dominic Moderalli and by thereafter refusing to rein-
state such strikers from on or about July 14, 1975, when
proper application for their reinstatement was made, until
July 15, 1975, when the application was accepted, the Re-
spondent has discriminated in regard to the hire, tenure,
and other terms and conditions of employment of its em-
ployees, thereby discouraging membership in the Union, in
violation of Section 8(a)(3) and (1) of the Act
8 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
9 The strike which began on or about May 29, 1975,
having been caused and prolonged by the Respondent's
unfair labor practices, is an unfair labor practice strike
1 The Respondent, Fullerton Transfer & Storage Limit-
ed, Inc, is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
2 The Union, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Lo-
cal 377, is a labor organization within the meaning of Sec-
tion 2(5) of the Act
3 All hourly-rated paid and percentage-paid truckdriv-
ers employed by the Respondent at its facility at Midlothi-
an Boulevard, Youngstown, Ohio, including all contract
43 Courtesy Volkswagen Inc supra
44 Trinity Valley Iron and Steel Company, a Division of C C Griffin Manu
facturing Company Inc 158 NLRB 890, 893-894 (1966)
45 Courtesy Volkswagen Inc, supra, Southwestern Pipe Inc 179 NLRB
364, modified 444 F 2d 340 (C A 5, 1971)
46 Courtesy Volkswagen Inc supra , National Business Forms 189 NLRB
964 (1971)
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (5)
of the Act, it will be recommended that the Respondent
cease and desist therefrom and take certain affirmative ac-
tion to effectuate the policies of the Act
The Respondent will be required, upon request, to recog-
nize and bargain collectively in good faith with the Union
as the exclusive representative of the employees in the
aforementioned unit, to revoke its unilateral changes with
respect to pay rates, cessation of health and welfare and
pension fund contributions and termination of the estab-
lished grievance, and to make whole its employees for any
loss of earnings or other benefits they may have suffered as
a result of the Respondent's unlawful refusal to bargain
As the strike herein has been found to be an unfair labor
FULLERTON TRANSFER & STORAGE LIMITED, INC
practice strike and as the Respondent, on July 14, 1975,
discriminatorily refused to immediately reinstate strikers
Clarence Booth, Warren Orechoneg, Rocco Moderalli,
Howard Price, William Vincent, Robert Watson, James
Campbell, Raymond De Vinney, Clayton Orechoneg,
Daniel Piluga, and Dominic Moderalli, all of whom earlier
had been unlawfully discharged, it is recommended that
the Respondent be required to make them whole for any
loss of earnings and other benefits they may have suffered
as a result of the Respondent's refusal to reinstate them
from July 14 to July 15, 1975, when the Respondent of-
fered reinstatement As to the above-named employees
who declined the Respondent's July 15 offer of reinstate-
ment but who have remained on strike and occupy the
status of unfair labor practice strikers, the Respondent
shall be ordered to offer them, upon application, immedi-
ate and full reinstatement to their former positions, or, if
those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority and other
rights and privileges, dismissing, if necessary, any replace-
ments The Respondent also will make them whole for any
loss of pay they may have suffered by reason of
Respondent's refusal, if any, to reinstate them upon their
applications Backpay shall be computed in accordance
with the formula prescribed by the Board in F W Wool-
worth Company, 90 NLRB 289 (1950), together with 6 per-
cent interest per annum, to be computed in accordance
with Isis Plumbing & Heating Co, 138 NLRB 716 (1962)
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended
ORDER 47
Fullerton Transfer & Storage Limited, Inc, Youngs-
town, Ohio, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Failing or refusing, upon request, to bargain collec-
tively with the aforesaid labor organization as the exclusive
collective-bargaining representative of our employees in
the unit represented by International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 377 The appropriate unit is
All hourly-paid and percentage-paid truckdrivers
employed by the Respondent at its facility on Midlo-
thian Boulevard, Youngstown, Ohio, including all
contract truckmen/moving division and the dispatch-
er, but excluding all contract truckmen/steel and
freight divisions, packers, temporary and seasonal em-
ployees, all clerical employees, professional employ-
ees, guards and supervisors, as defined in the Act
(b) Unilaterally, without prior notice to or negotiation
with the Union, changing pay rates affecting employees in
the bargaining unit
47 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings
conclusions and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
491
(c) Unilaterally, without prior notice to or negotiation
with the Union, discontinuing its payments to the pension,
health and welfare funds on behalf of our employees in the
bargaining unit
(d) Unilaterally, without prior notice to or negotiation
with the Union, failing and refusing to continue to process
grievances filed by employees in the unit in accordance
with the established grievance procedure
(e) In any like or related manner, interfering with, re-
straining, or coercing its employees in the exercise of their
rights to self-organization, to form, join, or assist labor or-
ganizations, to bargain collectively through representatives
of their own choosing, or to engage in other concerted ac-
tivities for the purposes of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the
National Labor Relations Act, as amended, or to refrain
from any or all such activities
2 Take the following affirmative action, which is
deemed necessary to effectuate the purposes of the Act
(a) Recognize and, upon request, bargain collectively
with the Union as the exclusive representative of all em-
ployees in the appropriate unit described above with re-
gard to rates of pay, hours of employment, and other terms
and conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment
(b) Revoke and cease to give effect to the changes in the
terms and conditions of employment it unilaterally institut-
ed, as set forth above, except in such particulars as the
Union may request that a specific change not be revoked
(c) Make whole the employees in the appropriate unit
who were adversely affected by Respondent's failure to
pay for their health and welfare contributions, as provided
in the past, by granting them all interest, emoluments,
rights, and privileges in such plan which would have ac-
crued to them but for Respondent's unlawful conduct
found herein, and further, henceforth make such health
and welfare payments until such time as Respondent nego-
tiates in good faith with the Union either to an agreement
or to an impasse 48
(d) Make whole all its employees for any loss of earn-
ings and other benefits that they may have suffered as a
result of the Respondent's unlawful refusal to bargain
(e) Make whole its striking employees, Clarence Booth,
Warren Orechoneg, Rocco Moderalli, Howard Price, Wil-
liam Vincent, Robert Watson, James Campbell, Raymond
De Vinney, Clayton Orechoneg, Daniel Piluga, and Dom-
inic Moderalli, for any loss of earnings and other benefits
they may have suffered as a result of its failure and refusal
to reinstate them from July 14, 1975, when unconditional
reinstatement was requested, until July 15, 1975, when re-
instatement was offered, and, upon application, grant the
above-named employees full and unconditional reinstate-
ment to their former positions, or, if those positions no
longer exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privileges,
dismissing, if necessary, any replacements hired
(f) Preserve and, upon request, make available to au-
thorized agents of the Board, for examination and copying,
48 See Impressions, Inc 221 NLRB 389 (1975)
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amount of backpay and health
and welfare and pension payments due under the terms of
this Order
(g) Post at its various facilities in Youngstown, Ohio,
copies of the attached notice marked "Appendix " 49 Cop-
ies of said notice on forms provided by the Regional Direc-
tor for Region 8, after being duly signed by the
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respondent
to ensure that said notices are not altered, defaced, or cov-
ered by any other material
(h) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith
IT IS ALSO ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found
herein
av In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National 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 "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides were represented by
their attorneys and presented evidence, it has been found
that we have violated the National Labor Relations Act in
certain respects To correct and remedy these violations,
we have been directed to take certain actions and to post
this notice
WE WILL NOT refuse to bargain collectively with In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 377, as
the exclusive collective-bargaining representative of
our employees in the appropriate bargaining unit de-
scribed herein, which they represent The appropriate
unit is
All hourly-paid and percentage-paid truck drivers
employed by the Respondent at its facility on Mid-
lothian Boulevard, Youngstown, Ohio, including all
contract truckmen/moving division and the dis-
patcher, but excluding all contract truckmen/steel
and freight divisions, packers, temporary and sea-
sonal employees, all office clerical employees, pro-
fessional employees, guards and supervisors, as de-
fined in the Act
WE WILL NOT unilaterally and without prior notice to
or negotiation with the above-named Union, change
pay rates affecting employees in the said bargaining
unit
WE WILL NOT unilaterally and without prior notice to
and negotiation with the above-named Union, discon-
tinue our payments to pension, health and welfare
funds on behalf of our employees in the bargaining
unit
WE WILL NOT unilaterally and without prior notice to
or negotiation with the Union, refuse to continue to
process grievances filed by employees in the bargain-
ing unit in accordance with the established grievances
procedure
WE WILL recognize and, upon request, bargain col-
lectively with the above-named Union as the exclusive
representative of all employees in the appropriate unit
described above with regard to rates of pay, hours of
employment and other terms and conditions of em-
ployment and, if an understanding is reached, embody
such understanding in a signed agreement
WE WILL revoke and cease to give effect to the
changes in the terms and conditions of employment
we unilaterally instituted, as set forth above, except in
such particulars as the Union may request that a spe-
cific change not be revoked
WE WILL make whole the employees in the appropri-
ate unit who were adversely affected by our failure to
pay for their health and welfare contributions, as pro-
vided in the past, by granting them all interest, emolu-
ments, rights, and privileges in such plan which would
have accrued to them but for our unlawful conduct
and, further, WE WILL henceforth make such health and
welfare payments until such time as we negotiate in
good faith with the Union either to an agreement or to
an impasse
WE WILL make whole Clarence Booth, Warren Ore-
choneg, Rocco Moderalli, Howard Price, William Vin-
cent, Robert Watson, James Campbell, Raymond De
Vinney, Clayton Orechoneg, Daniel Piluga, and Dom-
inic Moderalli with interest, for any loss of pay they
may have suffered as a result of our temporary refusal
to reinstate them on July 14, 1975, until reinstatement
was offered on July 15, 1975
WE WILL, upon application, grant the above-named
employees full and unconditional reinstatement to
their former positions, or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, with-
out regard to any replacements who may have been
hired
WE WILL NOT discourage membership in the above-
named Union, or any other labor organization by dis-
charging any of our employees or by discharging or
refusing to reinstate any of our employees who join a
lawful strike and who are entitled to reinstatement af-
ter they have made proper application, or by otherwise
discriminating against any employees in regard to
hire, tenure of employment, or any term or condition
of their employment
FULLERTON TRANSFER & STORAGE LIMITED, INC 493
WE WILL NOT in any other manner interfere with, concerted activities for the purpose of collective-bar-
restrain, or coerce our employees in the exercise of gaining or other mutual aid or protection, or to refrain
their right to self-organization, to form, join, or assist from any or all such activities
any labor organization, to bargain collectively through
representatives of their own choosing, to engage in FULLERTON TRANSFER & STORAGE LIMITED, INC