Kaplan Trucking

National Labor Relations Board - Board Decisions

Sep 30, 1982

264 N.L.R.B. 1402 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kaplan Trucking and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Teamsters' Steel Haulers
Local Union No. 800. Case 6-CA-13871
September 30, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND ZIMMERMAN
On December 11, 1981, Administrative Law
Judge Thomas A. Ricci issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting 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 brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein. 2
We agree with the Administrative Law Judge's
finding that Respondent, as a member of the Na-
tional Steel Carriers Association (NSCA), was
bound by the National Master Freight Agreement
(NMFA) and the Eastern Conference Area Iron
and Steel Rider. Accordingly, we agree with the
Administrative Law Judge's conclusion that Re-
spondent's unilateral implementation of changes in
the wage structure mandated by the NMFA and
the Eastern Conference Rider violated Section
8(a)(5) and (1) of the Act. The instant case is distin-
guishable from Spector Freight System, Inc., Viking
Division, 260 NLRB 86 (1982); Jones Motor Co.,
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vilces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NL.RB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In sec. III of his Decision, the Administrative Law Judge states that
Respondent employs about 15 truckdrivers who lease their vehicles to
Respondent, rather than that it employs 15 truckdrivers, an unknown
number of whom lease their vehicles to Respondent. In fn. 2 of his Deci-
.ion, he states that Respondent's president, Bogus, testified he had author-
ized the NSCA to sign on his behalf "only the Western Conference Area
Iron and Steel Rider," rather than "only the Central States Area Iron and
Steel Rider." These inadvertent errors are insufficient to affect our Deci-
sion.
2 Subsequent to issuance of his Decision, the Administrative Law
Judge issued an erratum to his recommended Order providing that back-
pay be calculated "in the manner established by the Board in F. W. Wool-
worrh Company, 90 NLRB 289 (1950), and with interest as computed in
Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis
Plumbing & Hearting Co., supra." However, as indicated in the Adminis-
trative Law Judge's recommended remedy, calculation on a quarterly
basis is not appropriate here. We shall amend his recommended Order ac-
cordingly.
264 NLRB No. 181
Inc., 260 NLRB 97 (1982); and Branch Motor Ex-
press Company, 260 NLRB 109 (1982), which also
involved alleged refusals to bargain over changes
in the same collective-bargaining agreement here at
issue. The Board dismissed the complaints in those
three cases, finding that the General Counsel did
not make a prima facie showing that the individual
respondents failed to bargain over changes in the
collective-bargaining agreement. In those cases,
each of the respondents admitted that it was bound
to the contract and some evidence was produced in
each case showing that the respondent bargained
with one of the local unions, albeit not the respec-
tive employees' designated collective-bargaining
representative, i.e., the affiliated Teamsters local
unions jointly and/or their designated agent for the
purpose of bargaining, the Teamsters National
Freight Industry Negotiating Committee (the Com-
mittee). Because the General Counsel failed to
foreclose the possibility that each of the respond-
ents in those cases bargained or reached agreement
with the designated bargaining agent, we found
that he did not establish a prima facie case.
Here, in contrast to the respondents in the
above-cited cases, Respondent refuses to acknowl-
edge that it is bound to the contract covering the
wage rate. Instead, Respondent asserts that it did
not authorize the NSCA to bargain on its behalf
for the Eastern Conference Rider. In the absence
of evidence to the contrary, such a position neces-
sarily indicates that Respondent did not attempt to
bargain with the local unions jointly or with the
Committee. Further, although Respondent through
its president, Bogus, attempted to discuss the pro-
posed changes with Local 800 Business Agent Car-
elli, the credited testimony is that Carelli told
Bogus he would have to take the matter up with
the Teamsters Eastern Conference. Bogus admitted
that Respondent did not submit the proposed
changes to either the Central States Joint Area
Committee or the Eastern Conference Joint Area
Committee. In these circumstances, there can be no
question that Respondent implemented the changes
without bargaining with the designated bargaining
agent. Thus, in contrast to Spector, Jones, and
Branch, supra, here the General Counsel established
a prima facie showing of an unlawful refusal to bar-
gain which Respondent failed to rebut through
credible evidence. See Artim Transportation System,
Inc., 264 NLRB 139 (1982).
Accordingly, we find that Respondent's conduct
violated Section 8(a)(5) and (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
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KAPLAN TRUCKING
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Kaplan Trucking, Pittsburgh and Johnstown, Penn-
sylvania, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph 2(b):
"(b) Make whole every driver who was adverse-
ly affected by the Respondent's unlawful departure
from the terms and conditions of employment set
out in that contract between itself and the Team-
sters Union, with interest. Interest shall be calculat-
ed in accordance with Florida Steel Corporation,
231 NLRB 651 (1977). See, generally, Isis Plumbing
& Heating Co., 138 NLRB 716 (1962)."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a hearing, that we violated the Federal law
by reducing the contractually fixed compensation
payable to our owner operators has ordered us to
post this notice.
WE WILL NOT unilaterally change substan-
tive conditions of employment of any of our
owner operators, while bypassing their estab-
lished exclusive bargaining agent and doing
violence to the collective-bargaining agree-
ment in effect.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights guaranteed in Sec-
tion 7 of the National Labor Relations Act.
WE WILL make whole every owner operator
who was adversely affected by our unlawful
departure from the terms and conditions of
employment set out it the contract in effect
from 1979 to 1982 between this Company and
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America and its Local 800, with interest on all
such reimbursements due.
KAPLAN TRUCKING
DECISION
STATEMENT OF THE CASE
THOMAS A. Riccl, Administrative Law Judge: A hear-
ing in this proceeding was held on October 28, 1981, in
Pittsburgh, Pennsylvania, a complaint of the General
Counsel against Kaplan Trucking, herein called the Re-
spondent or the Company. The complaint issued on No-
vember 25, 1980, upon a charge filed on September 17,
1980, by International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Team-
sters' Steel Haulers Local Union No. 800, herein called
the Charging Party or the Union. The question presented
is whether the Respondent bypassed the established col-
lective-bargaining agent of its employees in its dealings
with the employees, and thereby violated Section 8(a)(5)
of the National Labor Relations Act, as amended.
Upon the entire record and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Kaplan Trucking operates in a number of States
throughout the United States, with facilities in Pitts-
burgh, Johnstown, and other cities in Pennsylvania, as a
common carrier in the interstate and intrastate transpor-
tation of freight. In the course of its operations the Re-
spondent derives gross revenues in excess of $50,000 an-
nually for the transportation of freight in interstate com-
merce. I find that the Respondent is engaged in com-
merce within the meaning of the Act.
II. THE L.ABOR ORGANIZATION INVOLVED
In its answer to the complaint the Respondent says it
does not have enough information to know whether
Local 800 of the International Teamsters Union, which
filed this charge, is or is not a labor organization. At the
hearing, the lawyer who filed the answer on the Re-
spondent's behalf admitted Local 800 was "the collective
bargaining agent for the drivers of this Company at Pitts-
burgh." And then Andrew Bogus, 33 years with the
Company and now its president, said, under oath, that he
withholds union dues for his drivers from their pay-
checks and forwards the money to Local 800, that he
processes grievances filed by that Local, and that he
sends health and welfare payments and pension contribu-
tions on their behalf into the appropriate Teamsters
Union funds. I set out these quotes from the record here
not because it is necessary for a finding that Teamsters
Local 800 is a union, but because the Respondent's
purely dilatory answer to that one allegation in the com-
plaint is typical of a number of meaningless conclusion-
ary statements voiced throughout the hearing by both
Bogus and his lawyer as asserted defenses. I do not
intend to reply as comprehensively to other such state-
ments of fact, or of law, made either at the hearing or in
the answer to the complaint.
I find that Local 800 of the International Teamsters is
a labor organization within the meaning of Section 2(5)
of the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. TIHI UNFAIR LABOR PRACTICES
At its Pittsburgh and Johnstown, Pennsylvania, termi-
nals, Kaplan Trucking employs about 15 truckdrivers
who lease their personally owned vehicles-tractors and
trailers--to the Company, the now very common prac-
tice of owner-operators. These drivers are covered by a
collective-bargaining agreement called National Master
Freight Agreement and Eastern Conference Area Iron
and Steel Rider, effective from April 1, 1979, to March
31, 1982. By its terms the party on one side consists of
the International Teamsters Union and its locals, includ-
ing Local 800; on the other side the employer party con-
sists of all members of employer associations which
signed the contract. This Company, Respondent herein,
has long been a member of National Steel Carriers Asso-
ciation (NSCA), a multiemployer group which, as Ka-
plan's president said at the hearing, bargains on his
behalf. The contract in question--received in evidence-
is signed, in all respects, by the NSCA as well as by
other multiemployer association.
The contract provides that, of the rate paid to Kaplan
by the shipper, the owner-operator must receive 26 per-
cent for wages, 33 percent for rental of his tractor, 13
percent for rental of his trailer, and 3 percent for "holi-
day, vacation, sick pay and annual leave"-a total of 75
percent. The contract also provides that in addition to
this 75 percent the Company must pay a certain
amount-variable according to the amount of work per-
formed by each driver-on his behalf into the Teamsters
health and welfare fund and into the Teamsters pension
fund. The Respondent paid these precise amounts from
the date the contract was made up to the spring of 1980.
It then decided for economic reasons it could not afford
to continue paying at that rate. Whether its reason was
because it was losing money-it did not go out of busi-
ness-or because it was not making enough profit is im-
material. It simply informed all its owner-operators that
they must agree to a new arrangement or would not be
given any more work. The Company decided to raise
their percentage take from 75 to 78 percent, but in return
the drivers would have to reimburse the Company for all
moneys it would continue to pay into the Teamsters
health and welfare fund and the Teamsters pension fund.
At first the employees balked, but, after a while, every
one of them accepted the inevitable and since that time
have been giving back to the Company all payments put
into those funds on their behalf.
The complaint alleges that this change in conditions of
employment, unilaterally made, bypassing the Union,
with complete disregard of the terms of the collective-
bargaining agreement then in effect, and intended to be
to the Employer's advantage economically, was an unfair
labor practice in violation of Section 8(a)(5) of the Act.
A number of defense contentions were voiced at the
hearing, most of them almost incoherent in the light of
undisputed, documentary facts, but none of them at all
persuasive. I find that by unilaterally changing the terms
of employment of all these owner-operators or truck-
drivers, the Respondent violated Section 8(a)(1) and (5)
of the Act.' A number of affirmative defenses listed in
the Respondent's answer to the complaint-about the In-
terstate Commerce Commission and the Motor Carriers
Act-have absolutely nothing to do with this case. Part
of the drivers' pay was health and welfare and pension
payments. The Company just stopped paying them
that-period.
Because of one defense suggested obliquely by Bogus
at the hearing, a comment must be made at this point. He
hinted at the idea that the drivers, some of them at least,
would make more money under the new system because
they would receive 78 percent of the shipping rate in-
stead of the old 75 percent. The thought. I think, was
that there might be instances where the reimbursement
of health and welfare and pension payments to the Com-
pany would amount to less than that extra 3 percent.
Whether that ever happened I have no idea. But that
entire defense, if defense it was intended to be, is at com-
plete variance with what Bogus said was the driving
consideration which motivated him in the first place-to
make more money hinmself. But in any event, that is a
matter for compliance. If it should develop in the com-
pliance stage of this proceeding that arty driver, in any
particular situation, came out ahead, he would have no
make-whole reimbursement coming for that one trip. But
any man who cleared less money for making a run under
the revised system than he would have retained in total
under the established contract terms must be paid what-
ever it takes to give him now the original 75 percent,
with the Company bearing the full burden of the health
and welfare and pension contributions.
The principal defense assertion, repeatedly stated, is
that Kaplan Trucking was not bound by any collective-
bargaining agreement with any labor organization insofar
as its Pittsburgh and Johnstown operations are con-
cerned. In the light of the documentary proof-the con-
tract itself, General Counsel Exhibit 2-plus Bogus' ad-
missions of how he conformed with its every minute pro-
vision, over 145 printed pages, this was like saying black
is white. There can be no logical response to, or consid-
eration of, an incoherent statement; no more would I
debate why two plus two does not equal six. Kaplan is a
member of NSCA, NSCA is its bargaining representa-
tive, admittedly; NSCA signed the 1979 contract, both
parts, the first half nationwide, the second half for the
Eastern Conference Area, which includes western Penn-
sylvania; 2 the contract says all locals of the Teamsters
International are party to the agreement; Local 800 in
fact, again as conceded, represents the employees in-
volved in this Company; and Bogus sends union dues to
that local and processes grievances-as provided in that
While every 8(a)(5) violation is technically also a refusal-to-bargain
situation, there is no occasion here to set out in detail a description of the
appropriate bargaining unit. The pertinent contract refers to it only as all-
conclusive, multiemployer, and nationwide in scope. In any event, the
question here stands apart from any unit issue.
z With his multiemployer association having signed the Eastern Con-
ference Area Iron and Steel Rider as a separate and physical addendum
attached to the National Teamsters contract, Bogus' statement at the
hearing that he had authorized the NSCA to sign on his behalf only the
Western Conference Area Iron and Steel Rider, was completely uncon-
vincing. His drivers in fact drive back and forth through both the Central
and Eastern area.
1404
KAPLAN TRUICKING
contract-with Local 800. His statement at the hearing
that he was not under contractual obligation with Local
800 because he never personally signed a separate agree-
ment with that Local was pure fantasy.
Before clearly and directly violating his Company's
contract with the Teamsters, Bogus talked to agents of
Local 800, whose jurisdiction is over western Pennsylva-
nia, as part of the International Teamsters Eastern Con-
ference area. He spoke to them once in April and again
in July 1980. Each time Charles Carelli, Local 800's busi-
ness agent, was present. Bogus' and Carelli's versions of
their talks conflict, but I credit the union agent over
Bogus, both because of the relevant objective facts oth-
erwise of record, and because of the demeanor of the
witnesses. Bogus was evasive, argumentative, and ob-
liquely indirect when answering even his own lawsyer's
leading questions. He kept saying he complained to Car-
elli about the drivers' "productivity" being too low,
about their not doing enough work, about his desire "to
give them [the drivers] the incentive to come to work."
To hear him say it, his purpose was to increase the driv-
ers' take-home pay. As a witness the president was
avoiding unequivocal admissions of having told Carelli
he had to, and wanted to, pay less for his labor costs.
This is what this whole case is about. Interspersed with
all this was Bogus' variously stated reason that the health
and welfare and pension payments had become "prohibi-
tive" to the Respondent. Bogus also said: "I don't recall
the exact conversations." According to Carelli, Bogus
told him "the Company was unhappy with the earnings:
if something wasn't done they were going to close the
Company up," "that they wanted some relief from the
existing contract." Carelli added that when Bogus started
to talk about his proposal to make the drivers pay for
their health and welfare and pension benefits, his answer
was he could not even talk about such changes and that
the Kaplan Company would have to take that up w ith
the Teamsters Eastern Conference.
Carelli having refused to discuss the Employer's pro-
posal to change existing conditions of employment, the
Respondent now argues it had a right to implement the
change unilaterally. But this is no more than restating the
basic-and totally unsupported proposition-that this
Company was not party to the contract covering that
precise condition it wished to change. A bargaining
agent, first established and having no collective-bargain-
ing contract in effect, is obligated to discuss conditions
of employment with the employer, no less than is the
employer required by law to discuss whatever that union
wants to talk about. No case precedent is required for
that rule of law. But when there is a contract in effect,
during its terms the union has no obligation to consider,
or even talk about, any change the employer would like
to make in its substantive terms. See Tide Wrer .4ssociat-
ed Oil Company, 85 NLRB 1096 (1949); "As to the writ-
ten terms of the contract either party may refuse to bar-
gain further about them
Iv. ITHE RUIMED)Y
The Respondent must be ordered to revert to the pre-
cise contractual provisions applicable to its dealings with
all owner operators in its employ as set out in its 1979-82
contract with the Teamsters National Union and Team-
sters Local 800. It must pay them the 75 percent of the
rate called for in that agreement, and it must cease and
desist from making the driver operators pay for their
health and welfare and pension fund contributions. And,
of course, the Respondent must reimburse every driver
who was adversely affected by the changed system, in
every instance where on any one run, because of the un-
lawfully revised system of percentage payment, the
driver netted less than the 75 percent of rate called for in
the contract, this in addition to enjoying the health and
welfare and pension payments without having to pay any
part of them back to the Respondent. The calculation in
compliance is not to be made on a quarterly basis, or on
any time passage schedule.
I'. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of Respondent described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States, and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
CONCI.USIONS OF LAW
1. By unilaterally changing substantive conditions of
employment of its owner-operators, while bypassing
their established exclusive bargaining agent and doing
violence to the collective-bargaining agreement then in
effect, the Respondent has violated and is violating Sec-
tion 8(a)(5) and (1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
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 3
The Respondent, Kaplan Trucking, Pittsburgh and
Johnstown, Pennsylvania, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Unilaterally changing conditions of employment of
its owner-operators, including payment of wages, rental
for vehicles, and health and welfare and pension pay-
ments, while bypassing the employees' established exclu-
sive bargaining agent and doing violence to a collective-
bargaining agreement in effect.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
a 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 find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec 102 48 of the Rules and Regulations, be adopted by the Board and
hecolme its findings. conclusions, and Order, and all objections thereto
,hail be deemed vaived foir all purposes.
1405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which is
found necessary to effectuate the policies of the Act:
(a) Pay every one of its owner-operator drivers vehi-
cle rental, wages, and all other forms of compensation
precisely in conformity with the terms of the 1979-82
National Master Freight Agreement and Eastern Confer-
ence Area Iron and Steel Rider, the collective-bargaining
contract between the Respondent and the Teamsters
Union.
(b) Make whole every driver who was adversely af-
fected by the Respondent's unlawful departure from the
terms and conditions of employment set out in that con-
tract between itself and the Teamsters Union, with inter-
est in the manner established by the Board in F. W
Woolworth Company, 90 NLRB 289 (1950), and with in-
terest as computed in Florida Steel Corporation, 231
NLRB 651 (1977). See, generally, Isis Plumbing & Hear-
ing Co., supra.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due.
(d) Post at each of its terminals in Pittsburgh and
Johnstown, Pennsylvania, copies of the attached notice
marked "Appendix." 4 Copies of said notice, on forms
provided by the Regional Director for Region 6, after
being duly signed by its authorized representative, shall
be posted by it immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1406