Land Air Delivery, Inc.

National Labor Relations Board - Board Decisions

Nov 27, 1987

286 N.L.R.B. 1131 (N.L.R.B. 1987)

LAND AIR DELIVERY 1131
Land Air Delivery , Inc. and Teamsters Local 41, af-
filiated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America , AFL-CIO.' Case 17-CA-
12750
27 November 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 30 September 1986 Administrative Law
Judge Robert G. Romano issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings , findings,2 and
i On 1 November 1987 the Teamsters International Union was read-
mitted to the AFL-CIO. Accordingly, the caption has been amended to
reflect that change.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfei 188 F.2c1 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
a We agree with the judge that the Respondent 's defense based on Sec.
10(b) of the Act lacks merit because the Union did not have notice of the
permanent subcontracting of unit work until a date within the 6-month
period preceding the filing of the 20 February 1986 amended charge
In addition , we would find that Sec. 10(b) does not bar this action even
if the Union was somehow on notice of the permanent nature of the sub-
contracting as of 9 April 1985, when the Respondent responded to the
strikers' unconditional offer to return to work by telling them that there
was no work available. This is so because the 8 October 1985 charge was
filed within 6 months, thereafter , and, although it alleged a violation only
of Sec 8(a)(3) and (1) of the Act, it described the conduct complained of
in terms sufficient to encompass the complaint allegations that the Re-
spondent had contracted out the bargaining unit work without prior
notice to or bargaining with the Union. (Thus, the October 1985 charge
had alleged , inter alia, that in violation of Sec. 8(a)(3) of the Act, the Re-
spondent hired one employee and caused some of its independent con-
tractors to hire other employees or "sub-independent contractors" to per-
form bargaining unit work , and had also alleged that the Respondent
continued to allow independent contractors or subindependent contrac-
tors to perform such work even after the striking baigaming unit employ-
ees had offered to return to work) The February 1986 amendment to the
charge, elaborating on the legal theory , was thus not an essential predi-
cate for the complaint , as the October 1985 charge sufficiently identified
the conduct in question to accord due process and fulfill the function of a
charge under the Act's procedural scheme See NLRB Y. Fant Milling
Co, 360 US 301, 307 (1959), National Maritime Union v NLRB, 683
F 2d 305 , 307-308 (9th Cir 1982), NLRB v Allen's I G A Foodliner, 651
F.2d 438 , 441-442 (6th Cir 1981).
conclusions,3 to modify the remedy,4 and to adopt
the recommended Order as modified.5
The Respondent, Land Air Delivery, Inc., is an
air freight motor carrier engaged in the interstate
transportation of air freight shipments between air-
ports. On 13 November 1984, during the term of
the collective-bargaining agreement (1 March 1982
through 31 March 1985), the Union began a lawful
economic strike against Land Air to force it to
process further certain grievances that were dead-
locked at the Grievance Committee and to comply
with certain other Committee decisions. Some of
these grievances concerned alleged breaches of the
subcontracting clause contained in the collective-
bargaining agreement between the Union and the
Respondent. The Respondent admits that it subcon-
tracted all unit work and maintains that the work
has been entirely contracted out since at least
March 1985, the subcontracting at issue occurring
primarily between 20 February and 1 March 1985.
The Respondent acknowledges that it did not give
notice to or bargain with the Union concerning its
decision to subcontract part and then the entirety
of the unit work. On 9 April 1985 the 13 striking
employees made an unconditional offer to return to
work. At no time did the Respondent recall any of
the strikers.
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by permanently
contracting out all unit work to independent con-
tractors, without any prior notice to the Union and
without affording the Union an opportunity to ne-
gotiate and bargain. The judge further found that
the Respondent violated Section 8(a)(3) and (1) be-
cause since the strikers' unconditional offer to
return to work on 9 April 1985, Respondent has
failed and refused to reinstate the employees.6
The Respondent urges that it was within its
rights to permanently replace the strikers by con-
4 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 US C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
li The judge granted the General Counsel's request that the Order in-
clude a visitatonal clause authorizing the Board , for compliance pur-
poses, to obtain discovery from the Respondent under the Federal Rules
of Civil Procedure under the supervision of the United States court of
appeals enforcing the Order We have concluded that in the circum-
stances of this case such a clause is not warranted We shall modify the
recommended Order accordingly
6 Four of the striking employees are not entitled to reinstatement be-
cause of certain specific individual instances of employee misconduct.
The evidence before us is insufficient to establish that the Union was re-
sponsible for the strike-related misconduct and we agree with the judge
that the misconduct present here does not warrant depriving the Union
of its representative status as in Laura Modes Co, 144 NLRB 1592 (1963)
Chairman Dotson agrees that a Laura Modes sanction is inappropriate be-
cause the strike misconduct cannot be attributed to the Union
286 NLRB No. 107
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tracting out the bargaining unit work without
notice to or bargaining with the Union . The flaw
in the Respondent 's argument is that permanently
contracting out the work of unit employees is not
equivalent to replacement of one employee by an-
other . American Cyanamid Co., 235 NLRB 1316
(1978), enfd . 592 F . 2d 356 (7th Cir. 1979); Alexan-
der Linn Hospital Assn ., 244 NLRB 387 (1979),
enfd . 624 F .2d 1090 (3d Cir . 1980). With regard to
replacing the strikers , the Respondent had two op-
tions to assure its continued operation : the Re-
spondent had the right to hire permanent employee
replacements , the strikers thereby retaining rein-
statement rights in accordance with Laidlaw Corp.,
171 NLRB 1366 ( 1968), enfd . 414 F.2d 99 (1969),
cert. denied 397 U. S. 920 (1970); or the Respondent
had the right to contract out the work temporarily
for the duration of the strike , in accordance with
American Cyanamid, supra.' The Respondent's ad-
mitted course of action-unilateral permanent con-
tracting out of the work-is, absent proof that the
options set forth above were unavailable to it, not
permissible under the Act." Thus, we agree with
the judge that the Respondent 's permanent con-
tracting out of the work previously performed by
bargaining unit employees without notifying and
bargaining with the Union constituted an unfair
labor practice, even though done in the course of a
strike .9 Refusing to afford the strikers their rein-
7 The Union is not challenging the Respondent 's right to continue op-
erating by contracting out unit work on a temporary basis . As the Sev-
enth Circuit observed in American Cyanamid , supra, 592 F.2d at 360-361.
(The Union] objects only to the Company's unilateral decision to
make the arrangement permanent in the absence of an emergency.
This Company did not need to effectuate permanent contracting out
to remain in business because the plant had been operational since
the inception of the strike through temporary arrangements nor
was that contractor requiring that relations with the Company
remain permanent as a condition of continuing to work for the Com-
pany There has been no showing that this Company would have
been harmed by negotiating with the Union prior to contracting out
the work permanently Therefore no justification has been
shown for the Company 's failure to observe the bargaining obliga-
tions set forth in the Act
9 Permanent subcontracting is distinguished from nonpermanent, stop-
gap, or temporary measures entered into by an employer to continue
service during a strike See Empire Terminal Warehouse Co, 151 NLRB
1359, 1364-1365 ( 1965) An employer is not under a duty to bargain over
temporary subcontracting necessitated by a strike where such subcon-
tracting does not transcend reasonable measures necessary to maintain
operations in strike circumstances. See, e.g , Shell Oil Co, 149 NLRB 283
(1964) The appropriate temporary character may exist even if the sub-
contract period extends beyond the strike , provided the subcontracts
when entered are only of such duration as is dictated by the exigencies of
the strike, or because of the threat of imminent strike See , e g, Elliot
River Tours, 246 NLRB 935 (1979).
9 We agree with the judge's conclusion that the decision was a manda-
tory subject of bargaining , consistent with First National Maintenance
Corp v. NLRB, 452 U S 666, 687 (1981 ), and with any of the views ex-
pressed in the Board 's decision in Otis Elevator, 269 NLRB 891 (1984).
Chairman Dotson agrees with the judge 's findings and conclusions, based
on the opinion of former Member Hunter and himself in Otis Elevator,
supra, that the Respondent 's decision to permanently contract out the
unit work constituted a mandatory subject of bargaining
statement rights, in reliance on the unlawful con-
tracting , further violated the Act as found by the
judge.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Land Air Delivery , Inc., Kansas City,
Kansas, its officers , agents, successors , and assigns,
shall take the action set forth in the Order as modi-
fied.
Substitute the following for paragraph 2(f).
"(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
Naomi Stuart, Esq., for the General Counsel.
David Leightty, Esq. (Tillford, Dobbins, Alexander &
Buckway), of Louisville , Kentucky, and Louis J.
Amato, Esq., of Bowling Green, Kentucky, for the Re-
spondent.
Michael D. Matteuzi, Esq., of Kansas City , Missouri, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT G. ROMANO, Administrative Law Judge. I
heard this case on 14-16 April 1986 in Kansas City,
Kansas . Teamsters Local 41, affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America (Local 41 or the Charging Party
Union) filed a charge on 8 October 1985 (amended 20
February 1986) against Land Air Delivery , Inc. (Land
Air or Respondent Employer). The complaint that issued
on 24 February 1986 (essentially) alleges that the Re-
spondent Employer: (a) about 1 February 1985 , subcon-
tracted to independent contractors the pickup and deliv-
ery of air freight previously performed by unit employ-
ees represented by Local 41, without prior notice to the
Union and without having afforded the Union an oppor-
tunity to negotiate and bargain as the exclusive repre-
sentative of unit employees with regard to such subcon-
tracting, and its effects , in violation of Section 8(a)(5)
and (1) of the Act, and (b) that since 9 April 1985, Re-
spondent Employer has refused to reinstate 13 named
previously striking employees on their unconditional
offer to return to employment , in violation of Section
8(a)(1) and (3) of the Act. Respondent , by answer filed
10 March 1986 , denies the commission of any unfair
labor practices and, inter alia , affirmatively defended an
answer that the allegations are barred by applicable time
limitation (10(b)), and it asserts otherwise that the above-
named individuals , or certain of them, have ceased to be
employees of Respondent Employer by virtue of their
own (strike misconduct ) actions . Respondent also con-
tends in brief the subcontracting issue has been raised by
the Union in a Federal district court matter , and conse-
LAND AIR DELIVERY 1133
quently this is not the proper forum for resolution of the
subcontracting issue.
On the entire record, from my observation of the de-
meanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respond-
ent Employer about 21 May 1986, I make the following
FINDINGS OF FACT
1. JURISDICTION
Land Air Delivery, Inc. is an airfreight motor carrier,
with an office and place of business , inter alia, in Kansas
City, Missouri, where it performs the ground portion of
airfreight shipments to and from airports. Land Air de-
rived gross revenues in excess of $50,000 nn 1985 for the
transportation of freight and commodities in interstate
commerce pursuant to agreements with and as agent for
various common carriers that operate between and
among various States of the United States, but principal-
ly Emery Worldwide, Inc. (Emery). It is clear that Land
Air functions as an essential link in the transportation of
freight and commodities in interstate commerce, and I
find on the basis of the above, and entire record, that
Land Air is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. The
complaint alleges and Respondent Employer admits that
Local 41 is a labor organization within the meaning of
Section 2(5) of the Act.
Bowling Green airport, Schneller Sr. also runs a beer
distributing business and a farm in Bowling Green.
Land Air employed Joe Michalski as its general man-
ager of its Kansas City operations from 1981 until about
July 1985. At time of hearing Michalski was the subject
of a Land Air lawsuit for recovery of certain money
purportedly borrowed and owed. Michalski did not testi-
fy in this proceeding. Joseph P. Schneller Jr. (President
Schneller's oldest son) took over as general manager on
20 July 1985. Schneller Jr. had previously been em-
ployed by Land Air as a supervisor for 7-8 years, and
had been initially employed 4-5 years before that. Inter
alia, as supervisor , Schneller Jr. in material times handled
payroll. Jack Mawby is a supervisory dispatcher em-
ployed by Land Air. Mawby is located at the Emery fa-
cilities located at Prarie View Road, Kansas City, Mis-
souri , as were Michalski and Schneller Jr. Land Air ini-
tially employed Jerry (Jerome) Lynch as a driver in
1977. Although Land Air engaged Lynch (d/b/a Lynch
Delivery) as an independent contractor initially in 1979,
and continues to do so to date, Land Air has employed
Lynch as a full-time supervisor at its own North Everton
facility since February 1980. President Schneller, former
General Manager Michalski, former supervisor and now
General Manager Schneller Jr., and Supervisors Mawby
and Lynch as well (I find) are supervisors of Respondent
Employer within the meaning of Section 2(11) of the
Act, and agents of Respondent Employer within the
meaning of Section 2(13) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Part One-Background
1. Land Air management and operations
Joseph P. Schneller Sr., is the president and owner of
Land Air, an airfreight motor carrier. Schneller Sr. has
been in the industry since 1955. However, in 1960 he
founded Land Air to provide such service to Emery, and
since then, Emery has been Land Air's major customer-
client. Land Air handles the ground portion of airfreight
shipments to and from airports, which is basically pickup
and delivery work. In addition to performing such serv-
ice in the Kansas City metropolitan area, Land Air ap-
parently operates routes as far west and south as Salina
and Wichita, Kansas, and as far east and south as Spring-
field and Joplin, Missouri. In the conduct of its business
Land Air used mostly small equipment, primarily vans
and a few pickups, though it also had occasions to use
some 1- or 2-ton trucks, and a few tractor-trailers. For
years, and to date, Land Air has operated out of Emery
facilities located at Prairie View Road, Kansas City, Mis-
souri, though about 5-6 years ago it added its own facili-
ties on the other side of the airport at 10231 North Ever-
ton Street. It appears that each facility is essentially a
dock area where inbound freight for delivery can be
broken out and sorted, and where outbound freight is re-
versely handled. Although President Schneller does keep
track of whether the business is profitable, he had not
been involved in the day-to-day physical operations for
about 15 years. President Schneller now lives in Bowling
Green, Kentucky. Although Land Air has, offices at the
2. The union representative, and its exclusive
majority representative status
Daniel Johnson is secretary-treasurer of Local 41.
Local 41 employs C. B. "Doc" Conder and Dennis R.
Speak as (apparently) business agent and assistant busi-
ness agent , respectively, though Conder may have been
an assistant business agent during some of the material
time. Local 41 was certified as the exclusive collective-
bargaining representative of the following appropriate
unit of Respondent's employees on 14 December 1973:
All truck drivers and warehousemen employed by
Land Air Delivery, Inc. at its delivery service lo-
cated at Kansas City, Missouri, but Excluding office
clerical employees, guards, and supervisors as de-
fined in the Act.
In 1975 Land Air employed approximately 30 employ-
ees, including 25 individuals classified as truckdrivers. In
the instant proceeding President Schneller testified that
Land Air had never employed employees as warehouse-
men. Otherwise President Schneller testified that the
only time he did not employ contractor drivers was for
about a 2-3-month period when he first started some 26
years ago, asserting most carriers use contractors. In any
event a dispute arose in 1974 between Local 41 and
Land Air over the status of two individuals viz, Dale
Cain and Robert Woods. Local 41 petitioned for clarifi-
cation of the above unit, contending drivers Cain and
Woods were employees and should be included. At that
time , both Cain and Woods had worked for Land Air
for 14 years. Land Air contended they were independent
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contractors, not employees, and should not be included
in the unit. A hearing was held on the issues. Thereafter,
on 16 January 1975, the Board's Regional Director for
Region 17 issued a Decision and Clarification of Bargain-
ing Unit, in which, for reasons there stated, the Regional
Director concluded and found Cain and Woods were in-
dependent contractors and, accordingly, the Regional
Director clarified the above unit description to specifical-
ly exclude independent contractors. (The decision in
such matter in Case 17-UC-56 (Case 17-RC-7343) is of-
ficially noticed, and it is in evidence as G.C. Exh. 4.)
3. Additional prior subcontracting and grievance
disputes and related contract provisions
In late 1981, or early 1982, Speak became the agent in
charge of presenting grievances and policing the contract
between Local 41 and Land Air. The contract in effect
at that time by its terms had duration from 1 April 1979
through 31 March 1982, Speak confirmed that the bar-
gaining unit employees that Local 41 represents perform
work as an exclusive pickup and delivery agent for
Emery, though Speak's understanding was that Land Air
also performed such services for Zantop, Inc., an airline
servicing mostly parts (delivery) for General Motors.
Speak's understanding was that Zantop was the client,
but President Schneller has testified more definitively
and, convincingly, that General Motors' Leeds facility
was actually the client and that it was Land Air's second
largest customer.
Speak more definitively relates that the bargaining unit
employees reported daily for work at the Emery dock
located- at Prarie View Road in Kansas City, Missouri.
The unit employees regularly wear uniforms with
Emery's name on it. Although Speak did not know
whether Emery owned the uniforms , he knew that Land
Air furnished and maintained the uniforms. The unit em-
ployees are hourly paid, and they punch a timeclock lo-
cated on Emery's dock. In material times there were 13
unit drivers, 12 assigned to Emery, and 1 to General
Motors' Leeds work. Whether any others, e.g., contrac-
tors, performed any other work for General Motors'
Leads facility is unclear. What is clear is that only one
unit employee was involved in that work.
Speak acknowledged that Land Air has operations in
cities other than Kansas City, and he further readily ac-
knowledged that work was not done by people in his
bargaining unit . Speak, however, also testified that Land
Air does business (from Kansas City) outside the immedi-
ate Kansas City area, and Speak claimed, from (union)
paperwork (records) he had access to, unit employees in
the past had performed certain such work, giving as ex-
amples runs to Joplin, Springfield, Iola, and Sedalia in
1976-1978. Speak specifically referred to Land Air con-
tracting out a run to Sedalia, and he related that circum-
stance to be one involving Land Air actually taking a
bargaining unit employee off that run, and putting a con-
tractor on it. However, Speak did not have direct knowl-
edge of the incident. Speak also asserted there was a
(later) letter of a former business agent , who was no
longer available, but who had a squabble (registered a
protest) with Land Air about the subcontracting. There
was no prior unfair labor practices filed. The record does
not indicate whether the employment status of any unit
employees changed.
At hearing, on direct examination , Speak had testified
that at the time he first began policing the 1979-1982
agreement , there were about 12 employees in the bar-
gaining unit , and about 25 people working on some kind
of contract basis. Speak acknowledged on cross-examina-
tion that he was aware of the unit clarification decision
(in regard to Land Air's use of two independent contrac-
tors). Respondent established that in an affidavit given 1
May 1985 to a regional agent , Speak there stated, "Since
that time by 1982 we had about 12 employees on the se-
niority list and approximately 25 independent contrac-
tors." The Employer has also submitted in evidence the
then applicable 1979-1982 agreement, which provided in
pertinent part, article 32, subcontracting, section 1:
For the purpose of preserving work and job op-
portunities for the employees covered by this
Agreement, the Employer agreed that no work or
services of the kind, nature or type covered by,
presently performed, or hereafter assigned to the
collective bargaining unit will be subcontracted,
transferred, leased , assigned or conveyed in whole
or in part to any other plant, person or nonunit em-
ployees, unless otherwise provided in this Agree-
ment.
The Employer may subcontract work when all of
his regular employees are working, except that in
no event shall road work presently performed or
runs established during the life of this Agreement be
farmed out. No dock work shall be farmed out
except for existing situations established by agreed
to past practices. Overflow loads may be delivered
by drivers other than the Employer's employees
provided that this shall not be used as a subterfuge
to violate the provisions of this Agreement. Loads
may also be delivered by other agreed to methods
or as presently agreed to. Owner-Operators per-
forming subcontracted work which is permitted
herein shall receive no less than the wages, hours
and general working conditions of this Agreement
and that applicable Supplement.
The instant record has made it abundantly clear that
subcontracting was a major issue in the 1982 negotiations
for a new contract. Negotiations between the parties for
a succeeding contract covered a period extending (at
least) from March to November 1982. The central issues
(eventually) separating the parties were wages, subcon-
tracting , and grievance and arbitration machinery. For
these negotiations, Land Air's negotiators were General
Manager Michalski, Attorney Amato of Bowling Green,
Kentucky, and (later) Attorney Dan Denk of Kansas
City, Missouri . Both Conder and Speak participated in
the negotiations, for the Union. Speak testified that Land
Air succumbed to the Union's position, and it took the
Union's (contract) clause that expressly forbids subcon-
tracting.
Speak testified relatedly and the General Counsel has
presented in evidence (at least) three of the subcontract-
ing proposals that Employer had presented to the Union
LAND AIR DELIVERY 1135
during their negotiations, one on 31 March 1982, one on
13 April 1982, and a third undated. Each provided sub-
stantively:
It is specifically understood and agreed that the
Employer is presently utilizing owner-operators
who are independent contractors and not employees
of the Employer to perform pick up and delivery
work and to supplement its driver employees cov-
ered by the terms of this Agreement. This Agree-
ment shall in no way restrict the Employer's use of
said owner-operators provided that the Employer
agrees that no driver presently employed shall be
laid off as a result of the Employer's use of owner-
operators. Owner-operators shall not perform dock
work if any of the employees presently employed
are laid off.
The Union rejected the proposal each time made, and
it maintained its own position that they would settle for
no less than the subcontracting language provided in ar-
ticle 32 of the National Master Freight Agreement cov-
ering Over the Road and Local Cartage Employees of
Private Common, Contract and Local Cartage Carriers
(NMFA). Article 32 of NMFA provides in pertinent
part:
ARTICLE 32
SUBCONTRACTING
Section 1.
For the purpose of presenting work and job op-
portunities for the employees of the signator Em-
ployer covered by this Agreement, the signator
Employer agrees that no work or services of the
kind, nature or type covered by, presently per-
formed, or hereafter assigned to the collective bar-
gaining unit , by the signator Employer , will be sub-
contracted , transferred, leased, assigned or con-
veyed in whole or in part by the signator Employer
to any other plant, person or nonunit employees,
unless otherwise provided in this Agreement. This
subcontracting provision is also applicable to the es-
tablishment or continuation by the signator Employ-
er of a transportation company or business which
engages in the same type of operation covered by
this National Master Freight Agreement, which
company or business is owned or controlled by the
signator Employer. However, the above provisions
shall not be interpreted so as to expand the provi-
sions of Article 3 (Recognition).
The Employer may subcontract work when all of
his regular employees are working, except that in
no event shall road work presently performed or
runs established during the life of this Agreement be
farmed out. No dock work shall be farmed out
except for existing situations established by agreed-
to past practices. Overflow loads may be delivered
by drivers other than the Employer's employees
provided that this shall not be used as a subterfuge
to violate the provisions of this Agreement. Loads
may also be delivered by other agreed-to methods
or as presently agreed to. Owner-operators or other
persons performing subcontracted work which is
permitted herein shall receive no less than the
wages, hours and general working conditions of this
Agreement and the applicable Supplement.
The record reveals that on 9 November 1982 Local 41
and Land Air reached an impasse . The parties were at
impasse mostly on subcontracting, but also on acceptable
grievance machinery. The Union struck to enforce its de-
mands. The strike lasted 3 days at which time on 12 No-
vember 1982, Land Air signed an interim agreement ac-
cepting the NMFA, with certain wage and grievance ex-
ceptions (but evidencing no exception as to the subcon-
tracting clause). Those excepted areas were further nego-
tiated by Conder, Speak, and Attorney Denk. Insofar as
pertinent, Land Air's attorney Denk confirmed their
agreement on grievance procedure by letter dated 17
November 1982:
2. Grievance Procedure-It was agreed that griev-
ances would be handled by the Cartagemen's Asso-
ciation Grievance Committee as opposed to the
present committee hearing the Land Air Delivery
grievances.
Speak further explicated that it had been agreed the
grievances would be heard at the Greater Kansas City
Public Warehouse Joint Grievance Panel as the first step
and that any decision reached there would be final and
binding. Conder confirmed by letter dated 22 November
1982, in pertinent additional part:
In addition we agreed that in the event a grievance
was deadlocked at this committee the company may
elect at any time following to notify the Union that
it does not wish to process the grievance through
any further committee steps, in which case the
Union would be free to resort to economic recourse
notwithstanding any other provisions of the agree-
ment.
[Both earlier interim agreement and NMFA provid-
ed otherwise for certain no strike undertakings.]
Speak summarized (seemingly in regard to deadlock)
the Company had the right to take it to the next step or
refuse to do so , and the Union could then strike to force
it to do so. Speak also testified that Land Air had not
only succumbed to the Union 's position on subcontract-
ing, but that General Manager Michalski had promised
faithfully to return that (previously subcontracted) work
to our bargaining unit by attrition. Speak testified that Mi-
chalski first said that to Conder in Denk's office, and that
General Manager Michalski repeated it to Speak in front
of Union Steward Mike Carleton in a meeting held at
Shoney 's Restaurant , shortly after the signing of the con-
tract, in late 1982 or early 1983. Although Speak ac-
knowledged the promise of Michalski was not reduced
to writing , Speak also testified that he believed Attorney
Denk would verify it. Neither Michalski nor Attorney
Denk testified on this matter, and there is no direct evi-
dence offered to the contrary . I credit Speak as to Mi-
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
chalski's stated promise to him. I further credit Speak's
testimony that Michalski subsequenly added one employ-
ee to the bargaining unit (Bill Greenfield) but only
through grievance machinery, in late 1983 or early 1984.
However, it is also apparent, infra, that Employer asserts
it put (at least) three individuals under original contract
in this period, viz Mark Rinehart, February 1983; Russell
Sloan, December 1983; and Bill Haney, August 1984.
There is no evidence offered that any of them then per-
formed unit work. It is clear that parties had agreed to
and that their applicable subcontracting clause was arti-
cle 32 as contained in the NMFA, and that that contract
(and its terms) had duration from 1 March 1982 through
31 March 1985. It is also clear that the issues presented
here relate only to the status of some 13 Kansas City
(local) drivers whom Local 41 represents.
B. The Evidence
1. The cause of the strike on 13 November 1984
About 6 a.m. on 13 November 1984, Land Air em-
ployee Speak, Union Steward Walt Malinowski, and
Dave Evans, a nonemployee but member of Local 41,
drove to Land Air's Emery facilities . Speak hand-deliv-
ered a letter to Land Air dispatcher Mawby. The letter,
dated 12 November 1984, related that it gave General
Manager Michalski a 72-hour notice that pursuant to arti-
cle 8, section 2 of NMFA, Local 41 had authorized
strike action for Land Air's failure to comply with cer-
tain earlier grievances decided in favor of the Union, viz
25 July 1983 grievances , the "Frank Martin" grievance
and the "Jim McDonald" grievance. The letter however
went on to state:
The seventy-two (72) hour notice contained herein
is not related to any economic action we might take
in response to your action in choosing not to proc-
ess deadlocked grievances to further committee
steps. As you are aware, when the Company choos-
es not to further process a deadlocked grievance,
we have the right to take economic recourse with-
out notice as outlined in Conder's November 22,
1982 letter to your attorney Daniel B. Denk. For
example, Land Air chose not to proceed to the fur-
ther steps of the grievance procedure with respect
to the deadlocked "Lonnie Thatcher" grievance.
Therefore, we reserve the right to take economic
action without notice to support our position in the
Thatcher grievance.
Speak testified that all the unit employees commenced
a strike on 13 November 1984. According to Speak the
strike was caused by the grievances of McDonald and
Martin and the (deadlocked) Thatcher grievance, and
that the reason for the strike was Land Air's, "Failure to
abide by the grievance decisions and failure to take it to
the next step ." Speak clarified on cross-examination that
he had not testified that striking was the Union's only re-
course at the time, and he acknowledged another re-
course was an action in court to enforce the collective-
bargaining agreement . The alternate procedure of pursu-
ing a court enforcement of favorable grievances did not
preclude a strike over the deadlocked Thatcher griev-
ance.
Respondent has established that in an employer suit,
the union has filed counterclaim seeking enforcement of
certain grievances . In that regard , the parties have
agreed that union 's counterclaim seeks enforcement of
three grievances , at least one of which refers to subcon-
tracting . Briefs have been filed and decision is pending
on the union 's counterclaim , the employer 's base claim
having been already resolved favorably to the employer.
The instant case does not involve resolution of any
grievances . The details of the above grievances are not
even in evidence . Nonetheless , the Employer has ad-
vanced general argument that because (at least) one of
the grievances involves subcontracting , the Board is not
the correct forum to handle any issues here involving
subcontracting . President Schneller (essentially) ac-
knowledged that Local 41 was free to strike without
notice over the deadlocked "Thatcher" grievance, and
Land Air's (thus admitted) refusal to proceed to further
grievance step for its resolution.
2. The strike in nature and origin was a lawful
economic strike over prior grievances
On 13 November 1984 the following 13 named em-
ployees," who collectively constituted the entire unit of
employees then (unquestionably) represented by Local
41, ceased work concertedly and (I find) engaged in a
lawful economic strike, over the prior grievances: Mike
Carleton, Lindsay Cundiff, Joe Fincher, John Farris, Bill
Greenfield, Walter Gunn, Dale Guyton, Ken Harring,
Jerry Koehn, Walt Malinowski, Don (Ron) Stevens,
Dave Thomas, and Norman Vest.
The Union and unit employees picketed Emloyer's fa-
cilities, principally the Emery facility that Land Air em-
ployees used. The Union, the striking employees and cer-
tain nonemployees , but union members also engaged in
ambulatory picketing. In November and the following
month of December the Employer contends that all of
its above striking employees engaged in various acts of
misconduct. These allegations and their circumstances
are handled in part two of this decision. Suffice it to note
here there was violence, and threat of violence, by cer-
tain individuals. The strike lasted 5 months, from 13 No-
vember 1984 to 9 April 1985.
3. The immediate replacement of strikers-the
varied nature of replacements
President Schneller was in Bowling Green when the
strike began . He had no prior notice of the strike before
receiving a call that Local 41 had served a letter and
that a strike had begun . As noted Schneller acknowl-
edged that Local 41 did not have to give prior notice of
its strike over the deadlocked grievance that the Em-
ployer elected to refuse to process further . Schneller did
not immediately go to Kansas City . He called his attor-
ney on what to do and about his obligations. Emery's
business is rapid delivery (usually) of small items, pack-
1 The names of employees appear as reflected in Respondent Employ-
er's records
LAND AIR DELIVERY
ages, or envelopes . The normal morning freight was al-
ready there. Land Air had contractual obligation with
Emery to get "their stuff [sic]" handled, and there were
also deadlines that Land Air had to meet in doing it.
Schneller explained that Emery is involved in a very
competitive business . People pay it $10-$15 premium for
rapid delivery of parts (and more recently) documenta-
tion. Time is of the essence, and the quicker you get the
item delivered the better. At this time certain areas of
the city had to be delivered by 10:30 a.m. and others by
12 noon. If Land Air consistently failed to meet the es-
tablished time limits , Emery would get someone else.
Schneller testified that he was sure Emery was sympa-
thetic, but it primarily wanted the freight delivered.
After speaking with his attorney, President Schneller
told them (local management , and presumably Michalski)
to just do whatever had to be done and to do the best
we could. Schneller testified that Michalski had the pri-
mary responsibility of getting and interviewing replace-
ments . However, Schneller testified in general that to do
the work that had to be done they got anybody they
could. According to Schneller, "with a picket line up its
hard to get people to work under the conditions you
got," but they had gone through a strike previously and
they handled it the same way. They hired people to put
in Land Air's equipment. There are also contractors who
work around the airport for themselves. According_ to
President Schneller , they tried to get everybody that had
their own truck and worked for themselves to work for
them and do the job; and they got (some unidentified)
people with their own equipment, cars, and pickups.
Land Air also used people out of the office (e.g., super-
visors). Schneller Jr., at the time it supervisor, confirmed
that he did not fmd out about the strike until he drove
on the premises and that they hustled up everyone and
anyone they could to perform the services for Emery.
Supervisor Schneller, who regularly paid them, testified
that in a week or so they had hired drivers as employees
or contractors or (used) supervisors. Land Air apparent-
ly also at first brought some (people) in from Joplin
(Missouri) and Wichita (Kansas). They used some wives
and brothers of drivers. They drove Land Air equip-
ment.
President Schneller testified they used everybody, and
it was not part of a scheme to do away with the bargain-
ing unit. The only scheme was to get the Emery freight
delivered. "We had to get it done, or Emery would get
someone else to do it. It (Emery) is not going to be both-
ered with our (Land Air) problems." Michalski had the
responsibility for hiring employees and independent con-
tractors, and President Schneller presumed that he did
most of the interviewing , as that was his primary respon-
sibility.
President Schneller confirmed that prior to the strike
Land Air had done business with General Motors' Leeds
facility. At a point early in the strike Land Air ceased
performing that work. General Motors cut off the busi-
ness as it did not want Land Air out there because the
pickets would come out there, and it did not want its
business interrupted. President Schneller testified, and
Speak earlier had acknowledged, shat Schock Transfer, a
competitor of Land Air is not doing that business and
1137
that Schock Transfer employs (only) driver employees,
who are represented by Local 41. However, Speak's tes-
timony that (only) one Land Air unit employee had been
previously assigned to do this work does not appear to
have been contradicted by the Employer.
4. Land Air's notice of contract termination
By letter dated' 28 January 1985 from President
Schneller and Attorney Amato, Land Air gave Local 41
the following notice:
This letter hereby gives written notice, pursuant
to Article 39 of the current National Master Freight
Agreement together with the Central States Area
Local Cartage Supplemental Agreement, that Land
Air Delivery, Inc. desires to cancel and terminate
the Agreement in effect from March 1, 1982 to and
including March 31, 1985, and hereby does so.
This letter will further advise that Land Air De-
livery, Inc. will not be a member of any Employer
Association or any Employer Bargaining Group in
the negotiation of a new contract. Land Air Deliv-
ery, Inc. will not be bound by, or in any way obli-
gated by, the terms of any Agreement which may
be negotiated by an Employer Association.
Although the above letter on its face is susceptible of an
interpretation of an intended immediate termination of
the existing NMFA agreement with Land Air, I con-
clude and fmd the reference to duration of the contract
and to article 39 would appear to clarify the Employer's
understanding the contract's effective duration remained
through 31 March 1985.2 Moreover, President Schneller
acknowledged at hearing that the contract did not expire
until 31 March 1985.
5. The independent contractors
a. Records of current contractors and their initial
contracts
In response to the General Counsel's 20 December
1985 subpoena calling, inter alia, for Respondent's
records of current independent contractors and date of
original contract, or in lieu thereof a compilation, Re-
spondent supplied (in part) a pertinent compilation on
the original dates. (The Employer's response was intro-
duced as G.C. Exh. 7.) According to Respondent's
records, Respondent's independent contractors as of 20
December 1985, and with month and year of original
contract are:
Oct. 1976 Dick Griffiths
June 1978 Lonnie Thatcher
Feb. 1979 William (Ken) Smith
July 1979 Jerome Lynch
2 Art. 39, duration , sec (1) provides:
The Agreement shall be in full force and effect from March 1,
1982, to and including March 31, 1985 , and shall continue from year
to year thereafter unless written notice of desire to cancel or termi-
nate the Agreement is served by either party upon the other at least
sixty (60) days prior to date of expiration
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Feb. 1983 Mark Rinehart
Dec. 1983 Russell Sloan
Aug. 1984 Bill Haney
Feb. 1985 Don Benefield
Feb. 1985 Kenneth Horton
Feb. 1985 Donald Fowler
Feb. 1985 Tom Pope
Mar. 1985 Jack Mawby
Respondent also answered in its compilation that it had
no records reflecting the names or dates of employment
of any employees of the above-named contractors. Re-
spondent, however, related that a survey of the contrac-
tors indicated that as of 1 November 1984, the contrac-
tors then had 12 full-time and 1 part-time employees.
Thus, in sum, not the 25 contractors and/or contractor
drivers Speak in this record state appears to have off and
on again recalled, but at most 19-20, though not all con-
tractors drove, all the time. The latter number is, howev-
er, very compatible with the certain daily reports con-
tained in General Counsel's Exhibit 6, discussed further,
infra. As of 15 December 1985, the contractors surveyed
reported they then had 18 full-time and 3 part- time em-
ployees. (The evidence reflects an overall substantive
change of six full-time and two part-time employees em-
ployed by current contractors in period from shortly
before strike to 15 December 1985.)
Speak confirmed that there were independent contrac-
tors that did some work at Emery, that (at least) some
themselves did employ employees, some part time. Speak
could not tell by observing the Emery dock how many
drivers are employees of independent contractors. Speak
knew personally a few of the contractors and their em-
ployees, but he did not know how it was otherwise and
that they all wear Emery uniforms.
b. The informal settlement in Case 17-CB-3006
Land Air filed a charge against Local 41 in Case 17-
CB-3006. On 4 February 1985, Local 41 entered an in-
formal settlement agreement that contained a nonadmis-
sion clause, and also a notice to employees and members
that it would not engage in coercive acts in general, and
certain specified coercive acts, including various threats
of bodily harm, or damage to property; and/or engage in
certain acts of damage to property; blocking ingress or
egress; following employees to and from picket line driv-
ing in a dangerous or reckless manner; or in any like or
related manner restrain or coerce Land Air employees.
Respondent has introduced a copy of the informal settle-
ment into evidence without the General Counsel's objec-
tion. (Employer did not join in the settlement.) The
agreement was approved by the Board's Regional Direc-
tor on 28 February 1985. The General Counsel would
have it observed that no evidence was presented of any
union employee or member misconduct on or after 4
February. None is presented in this record.
c. The February-March 1985 (independent contractor)
contracts
President Schneller testified that he did not have the
number of contractor drivers or owner operators who
worked out of Kansas City before, or after, the strike. At
the outset it is to be noted that the General Counsel does
not contest the status of Land Air's contractors as inde-
pendent contractors. Neither did President Schneller
know the last date (day) that Land Air had employed
employees (as opposed to all contractors). General Man-
ager Schneller Jr. testified that Land Air keeps no
records of employees that the independent contractors
have, though he acknowledged they took a count at one
time. Although Schneller Jr. testified that he would
make the decision on whether another contractor should
be hired, he asserted that he has not had to make that
decision. However, Schneller Jr. has acknowledged that
either he or Mawby make the current decisions as to
whether to increase the volume of business that is given to
the independent contractors. Schneller also testified that
he did not know for sure if any of the contractors have
hired new employees since 9 April (when employees of-
fered to return to work unconditionally, to be discussed,
infra). This is however difficult to fully accept, because
Schneller Jr. regularly paid the contractors for the work
they and their drivers performed. The Employer kept
daily records of the revenues generated in the service of
its principal customer Emery. Some of those records are
in evidence (see, e.g., G.C. Exh. 6, a series of 21 such
records). Those records, limited though they may be, not
only show revenues generated in deliveries for Emery,
but they also show, at least in significant part for the
present purpose, the pickup and deliveries by certain
contractors and by certain drivers as related to certain
contractors. I am constrained to conclude therefrom that
if Schneller Jr.'s referenced "for sure" has not indicated
a mental reservation he had in his complete denial, his
complete denial itself exhibits a reluctance to candidly
respond as to what he did know, e.g., from these
records.
The General Counsel has placed in evidence 12 con-
tracts executed by Land Air contractors in February-
March 1985. Not Michalski, but Schneller Jr. (then su-
pervisor) signed each such contract on behalf of Land
Air (though without his title being expressed). The afore-
said December 1985 listed current contractors are the
same 12 contractors under contract as of February-
March 1985. Each such contract provided the contractor
would be paid 75 percent of the gross. Each such con-
tract has an addendum acknowledgement of receipt of
certain equipment into Land Air's service, which in each
instance is acknowledged by Supervisor Jack Mawby.
Each contract contains a signatory page with a place for
signature of the contractor evidencing agreement to the
contract, but also a place on that same page for a dated
(second) signature acknowledging receipt of a fully exe-
cuted copy. In the body of the agreements there is state-
ment that the agreement is made on 20 February 1985,
though in Mawby 's case it is stated as made on 1 March
1985. All 12 contracts bear contractor signatures evi-
dencing their agreement to the contractor's terms. All 12
contractors signed the acknowledgment of receipt of a
fully executed copy. Though nine have not dated that
acknowledgment, three have, namely, William K. (Ken)
Smith on 20 February 1985; Tom Pope on 22 February
1985; and Jack Mawby on 1 March 1985. No other evi-
LAND AIR DELIVERY
dence is presented as other date of execution. On weight
of the above evidence (as presented), it is concluded and
found that Pope executed his contract on 22 February,
that (Supervisor) Jack Mawby executed his contract on 1
March 1985, and that the other 10 contractors executed
their above contracts about 20 February 1985. However,
from the Employer's own formal and compiled report as
to original date of contracts, it is apparent, and I find,
that five had not previously been under contract, namely,
Benefield , Horton, Fowler, Pope, and Supervisor Jack
Mawby.
President Schneller offered testimony in explanation of
the execution of these contracts in February-March on
the general basis that something had happened in a court
case somewhere and the Employer's attorney had draft-
ed a new contract, that he was not involved in it, and
that Land Air changed them (contracts) with anybody
we had. Although President Schneller related he would
imagine each (contractor) had, or should have had, one
contract earlier, it is apparent from the supplied data
compilation from the Employer's own records that was
not the case as to the above five. Inter alia, each such
contract also contains the following paragraph:
13. As required by the Interstate Commerce
Commission Lease and Interchange regulations, this
Agreement shall continue in effect for a period of
thirty (30) days from the day and date first above
written, and thereafter continuously unless can-
celled by either party by thirty (30) days written
notice.
On review of the aforesaid 112 contracts, President
Schneller identified only 5 that he personally knew had
been independent contractors before the strike. (They are
reflected below by asterisks.) The Generale Counsel how-
ever appears to concede in brief that the record will sup-
port two others, namely , Russell Sloan and Bill Haney as
hired by Land Air as subcontractors before 20 February
1985 (presumably) satisfied with support for the employ-
er-reported dates of December 1983 for Sloan and
August 1984 for Haney. In any event, on evidence pre-
sented of record, it is so found. The aforesaid 12 con-
tracts, with equipment referenced as then placed in use
are:
Name Equipment (No. & Type)
*Dick Griffiths 2 vans
'Lonnie Thatcher 2 vans
'Ken Smith 3 vans
*Jerome Lynch
(Lyncy Delivery) 1 van
*Mark Rinehart
(M.K.T.) 5 vans, 1 pickup
Russel Sloan 4 vans, 1 pickup
Bill Haney 1 pickup
Don Benefield 1 2-ton truck
Kenneth Horton 2 vans
Donald Fowler 1 van
Tom Pope 1 2-ton truck
Jack Mawby 2 vans
Total Egpmnt. 27
1139
This is not to say I am without reservation in certain
of these equipment findings, particularly in regard to the
extent of Sloan equipment, chiefly because General
Counsel's Exhibit 6 series of dates of service would not
support use of that much equipment by contractor Sloan
in Land Air use, at least much before the end of June.
However, General Counsel's Exhibit 6 was offered de-
finitively for other purpose, is far from a complete daily
list, and it does not address many intervening days. On
the other hand the Employer conceded in brief that
Roger Williams, who testified he was hired and em-
ployed by Sloan for a week before being employed by
Thatcher, also testified that while he was employed by
Sloan and Thatcher, both had no other drivers working
for them.
The General Counsel does argue in brief that Employ-
er's employment records are incomplete and contradicto-
ry at best. Employer confirmed at hearing (and see G.C.
Exh. 7) that Employer had hired (at least) eight employ-
ees after the strike, and that these eight continued to be
employees of Employer until date stated. Shown in order
of date of hire, secondly by date of termination , and al-
phabetically otherwise, they are:
Name
Mawby, Jamce
Epperson, Edward
Hodges, Mark
Horton, Bob
Ellis, James
Horton Ken •
Lynch, Jack
Fowler, Donald •
Date Hired Date Terminated
19 Nov. 1984 .......... 28 Mar. 1985
21 Nov. 1984 ........ 20 Dec. 1984
21 Nov. 1984 . ..... 20 Dec. 1984
21 Nov. 1984 ......... 20 Dec. 1984
21 Nov. 1984 ......... 28 Mar. 1985
21 Nov. 1984 ....... 28 Mar 1985
21 Nov. 1984.... .. 28 Mar. 1985
13 Dec. 1984 .......... 28 Mar 1985
It is apparent from the above that the Employer had
terminated three of the eight on 20 December 1984, and
that it terminated all the remaining five employees on 28
March 1985. The Employer offers no explanation for its
termination of these five employees on 28 March 1985.
Moreover, the asterisk above denotes two (purported)
employee drivers who had (purportedly) signed inde-
pendent contractor contracts with the Employer on 20
February 1985, thus over a month earlier than their ter-
mination as employees on 28 March 1985. These two in-
dividuals do not appear with contractor designation on 27
February 1985, though they do on 20 and 29 March 1985
(see G.C. Exh. 6 series). Two others, not listed as hired
employees Pope and Benefield similarly do not appear
with contract designation on 27 February 1985 (though
also purportedly independent contractors as of 20 Febru-
ary 1985), and they do appear with contractor designa-
tion on 20 and 29 March. Benefield however had worked
earlier for the Employer on 7 December 1984. It must
be, and is included there is inconsistency, if not outright
contradiction, in the Employer's records on employee
vis-a-vis independent contractor status, which the Em-
ployer has not adequately explained.
Respondent's witness Michael Lawrence Reynolds tes-
tified specifically that he was hired in October 1982, that
since then he and Griffitts drove (Griffitts') two vehicles,
1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and that Griffitts did not hire anymore employees. Re-
spondent 's witness, Roger Williams , testified specifically
that he was initially hired by Sloan on 19 or 20 Novem-
ber 1984, but worked less than a week for Sloan, that he
was then employed by Thatcher, and that thereafter only
he and Thatcher drove (Thatcher's two vans). No em-
ployee of Ken Smith (apparently) testified, and President
Schneller could not recall if Smith was a contractor who
did not drive himself for a period, but had come back to
driving (during the strike). From testimony of Respond-
ent's witness Jimmy Allen McDonnell, it is apparent that
McDonnell in material times (indeed from June-July
1984 on) regularly drove Lynch's one vehicle. Lynch
was a Land Air full-time supervisor all along (since
1980). It is thus clear from weight of evidence of record
that during the strike and, thereafter, Lynch drove regu-
larly and substantially. It is as readily apparent that when
Lynch drove, he drove Land Air's equipment, while still
employed as a full-time Land Air supervisor, and he did
so after the striking employees' unconditional offer to
return. Respondent's witness, David Andres Nelson, tes-
tified that he was employed by M.K.T. 3 days before the
strike, and Nelson testified that shortly after the strike he
drove striking employee Walter Gunn's route and contin-
ued to do so as of hearing date. Nelson did not testify as
to other drivers of contractor Rinehart d/b/a M.K.T. It
is clear, however, that Rinehart had six vehicles con-
tracted in Land Air use. On 26 November 1984, the first
such daily record available (G.C. Exh. 6 series in evi-
dence) in addition to Mark Rinehart himself, five other
drivers are listed in association with Rinehart contract
viz, Nelson, Green, Craig, Anderson, and Barb. It is thus
indicated that Rinehart had six vehicles in use for Land
Air at that time. Whether such was an expansion of his
subcontract service, and the degree of same on unit work
is not specifically apparent.
Prior to the strike Land Air owned the trucks (mostly
vans), driven by unit employees. According to President
Schneller most of them have now been sold. Schneller
acknowledged some were sold to (unidentified) contrac-
tors, some were junked or sold to truck dealers, and a
few have been retained. Schneller, however, confirmed
the latter are presently used by supervisors and as spares
for the contractors. (The exact number remaining does
not appear of record.) Schneller also testified that, as
before, supervisors occasionally work the trucks, when
needed. President Schneller however acknowledged at
times in the past he had had union grievances filed when
supervisors previously worked the trucks. According to
President Schneller, Land Air presently has no employee
drivers working out of Kansas City, its all contracted out.
Schneller acknowledged there are (Land Air) employee
driver replacements who are now working as contrac-
tors, though he asserted he did not know their names. He
knew, however, that one of the driver employee replace-
ments, James Ellis, remains, but asserted he is employed
as a supervisor. According to Schneller, Ellis supervises
the Emery work at night. Schneller testified that Ellis
also performs some light maintenance, mechanical work.
Schneller however has also acknowledged that Ellis also
sometimes does pickup and delivery work.
According to President Schneller, the employee driver
replacements (who are now contractors) had previously
said they would rather work as contractors. On direct he
had testified that they had asked him about it. (On cross-
examination he testified they had asked Michalski.)
Schneller talked to his attorney. The attorney talked to
management there (Kansas City). They then did what
they did, viz put them on as contractors. (Nor former
employee and now contractor corroborated President
Schneller.) Schneller testified it was before the employ-
ees offered to return to work. At best it is arguable but
shortly before 20 February 1985 because one of the fac-
tors President Schneller asserted he considered was a re-
duction in security expense by virtue of contractors
taking their vehicles home. In that regard, Respondent
Employer had paid (partially, with Emery) for night se-
curity of parked trucks, for 3 months, thus into February
1985.
Speak has testified that at no time during the period
when the 1982-1985 collective-bargaining agreement was
in effect did Land Air notify the Union that it wanted to
bargain concerning subcontracting unit work, nor did it
bargain with the Union during that period. Clearly that
testimony encompasses that Respondent Employer never
discussed with the Union its intent to subcontract out all
unit work, permanently. I conclude and find the Employ-
er clearly had not notified the Union, or any employees,
before 9 April 1985 that all unit positions had been per-
manently subcontracted.
6. The unconditional offers to return to work
a. The oral offer
At 6 a.m., 9 April 1985, Speak and all unit employees,
except Joe Fincher and Walt Malinowski whom Speak
relates were working that day, met at a local restaurant
and discussed the subject of an unconditional return to
work. At 7 a.m. Speak and the above unit employees
drove to Emery's dock. Speak remained on the street as
the unit employees went to the dock. A few minutes
later the employees left the dock area and went to an ad-
jacent lot. One of the employees informed Speak that
they had been informed to wait in the lot until they
(local management, but otherwise unidentified) spoke to
their lawyers. Speak joined the employees in the lot.
At 8:30 a.m. General Manager Michalski, accompanied
by a company lawyer (Rod Turner) came out to the
group. Michalski asked Speak if he was the spokesman.
Speak replied he was. Michalski inquired of Speak if
Speak was agreeing to return to work unconditionally;
and Speak replied, "Yes, we was [sic] going to return to
work without conditions. Michalski said there would be
no work today." (On cross-examination Speak confirmed
that during their conversation Michalski had told Speak,
"I didn't know you all would be offering to come back
to work." Speak in the same conversation asked, "What
about tomorrow." Michalski replied his answer stood,
there would be no work today. Michalski then inquired
if there had been any changes in (employee) address or
telephone number.) Two unit employees, Ron Stevens
and Bill Guyton responded, giving their changes. After
LAND AIR DELIVERY
obtaining the changes, Michalski repeated, "There's no
work today. This meeting is over." Michalski walked
back into the building. The Employer did not seek clari-
fication on the absence of Malinowski and Fincher from
the group. The Employer also did not inform the Union
that all unit work had been contracted out, let alone per-
manently contracted out.
b. The written offer
Speak did not hear from the Employer that day, or the
next day, 10 April. Although Speak at one point testified
that he wrote the Employer a letter requesting informa-
tion concerning them (Land Air) hiring employees and
subcontracting our work, Speak acknowledged on cross-
examination , and it is otherwise clear in the record, that
a request specifically on subcontracting information was
not made of the Employer until 3 June. By letter dated
11 April 1985, addressed to Michalski, and sent by certi-
fied mail, Speak wrote the Employer:
This is to inform you that as of April 9, 1985, we
have agreed to return to work at Land Air Deliv-
ery without conditions.
Please be advised that our complete seniority list
has been and still is available for work.
It is concluded and found that on 9 April the Union
made an oral unconditional offer to return on behalf of
all unit employees and that, in any event, on 11 April
Speak confirmed the unconditional offer to return was
on behalf of all unit employees, in writing.
Speak also again sent the unit employees to return to
work, with Union Steward John Farris as spokesman.
Respondent established that in prior statement, Speak
stated he was later informed that the men were (again)
told there was no work for the day, but he was also told
that the employees were told they should stay off the
Company's property. Whether this incident occurred
before or after, as to which the evidence appears ambig-
uous, though before would appear more likely, in any
event, Local 41 filed a charge against Land Air on 11
April 1985.
7. The first unfair labor practice charge, union
refusal to withdraw, and dismissal3
In this charge docketed as Case 17-CA-12654, Local
41 alleged that Land Air had violated Section 8(a)(1) and
(3) in that:
Since on or about April 9, 1985, the above named
Employer . . . refused to return to work unfair
labor practice strikers who unconditionally offered
to return to work and since such date has refused to
return to work said strikers, all because said strikers
engaged in an unfair labor practice strike on behalf
of Teamsters Local No. 41, against the above-
named Employer.
a This charge was apparently amended, but in what respect does not
appear directly of record
1141
President Schneller has testified that when the employ-
ees made their offer to return to work, the Company had
no work for them to do, and he referred the whole
matter to the attorney. The attorney advised Schneller
that we could not discriminate against taking them (em-
ployees) back, but right now they had been replaced,
and if we had any openings that they would have to be
considered and (it) not be held against them that they
were-just because they were on strike. The attorney
also talked to President Schneller about the effect that
upcoming collective bargaining might have on whether
we would be taking some of the employees back, or
giving them some work that was currently being done
by contractors. The attorneys were going to negotiate
that, and President Schneller relates, I would not get in-
volved in that. It is clear to me from the context that
President Schneller's intended meaning was that his
attorney(s) were to handle such negotiations for him. It
is equally clear to me and I find that the Employer had
internally adopted the position that the former striking
employees had been all permanently replaced by con-
tractors, but also internally had not precluded a return of
certain unit positions, by negotiations (e.g., by subcon-
tract cancellation).
Following an investigation the Board's Regional Di-
rector for Region 17 dismissed the aforesaid charge (as
amended) concluding that further proceedings were not
warranted and reciting therein, inter alia:
From the evidence disclosed by the investigation, it
appears that the collective-bargaining agreement in
effect at the time of the Union's strike which com-
menced on November 13, 1984, provided that in the
event a grievance deadlocked at the Cartagemen's
Association Grievance Committee level, the Em-
ployer could exercise its right to refuse to process a
grievance further. Under this provision, the Union
can then resort to economic recourse notwithstand-
ing any other provision of the collective-bargaining
agreement . The investigation revealed that the
strike which commenced on November 13, 1984
was in fact prompted by the Employer's refusal to
process further a deadlocked grievance involving a
driver. In addition, it was noted that in its corre-
spondence to the Employer announcing the strike,
the Union notified the Employer that it was taking
"economic action" against the Company.
Under these circumstances, it appears that the
subject strike was an economic strike giving the em-
ployees the right to reinstatement only at such time
when positions became available. In this regard, it
does not appear that the Employer has hired any
employees since the Union's April 9, 1985 uncondi-
tional offer to return to work. Therefore, the Em-
ployer's refusal to immediately reinstate its striking
employees is not a violation of the Act.
There is no reference to the Employer's having sub-
contracted all unit work permanently.
1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8. The request for information on subcontracting,
interim employee communication with Schneller Jr.,
and strike resumption
a. Request for information
Local 41 did not withdraw the charge, but neither did
it appeal the Regional Director's dismissal of the charge.
Rather, by letter dated 3 June 1985, Speak wrote Mi-
chalski making the following further inquiries:
Would you please respond to me as soon as pos-
sible if you have hired any new employees since
April 1, 1985.
Also are you subcontracting any of the work pre-
viously performed by our Bargaining Unit employ-
ees prior to the strike?
If you need any further questions answered con-
cerning these questions please contact me.
Speak (essentially) acknowledges this was the first in-
quiry he had specifically made about the subcontracting
of the Employer. By letter dated 5 June 1985, Michalski
acknowledged receipt of Speak' s letter, and advised
Speak it had been forwarded to the Employer's attorney.
By letter dated 10 June 1985, Attorney Amato, who had
not been copied with the charge dismissal letter, wrote
Speak and advised:
Since your questions involve matters directly re-
lating to a pending case before the N.L.R.B. I don't
feel that it would be appropriate for me to discuss
these matters at this time.
In point of fact the charge had been already dismissed on
21 May 1985, and the period for filing an appeal had
well run out by 10 June. Speak testified credibly that
Land Air did not answer (and I find the Employer did
not timely answer) the questions Speak had asked in his
3 June letter. Although it is apparent that Speak did not
seek any immediate clarification of the Amato letter's er-
roneous reliance on the charge still being under investi-
gation , it is apparent that Amato had sent a copy of his
letter to both Schneller (presumably President Schneller)
and Michalski. Assuming Amato was not aware of the
earlier dismissal , it is difficult for me to accept the fact
that he would not have soon thereafter become aware of
it. The fact is that no clarification of the position on the
subcontracting was timely forthcoming from the Em-
ployer, though Speak had specifically requested it.
b. The conversations between employee Cundiff and
Schneller Jr.
Schneller Jr. testified that at 7:28 on 10 June (thus
while Schneller was still supervisor) he had a phone con-
versation with employee Linsay Cundiff (a former strik-
er). In that conversation, according to Schneller, Cundiff
said that 90 percent of the men who worked at Land Air
just wanted their fair settlement of vacation time and
sick days that were owed to them by Land Air. Cundiff
told Schneller Jr. that as far as we was concerned the
whole thing was over, but he did not know the Union's
position on this matter. Supervisor Schneller told Cundiff
that they had to check with the attorneys. Cundiff said
he did not want the uniforms Land Air had provided
him, just the pay that should be coming to him. Accord-
ing to Schneller, Cundiff also said that he was working
then, and that he would deny this conversation ever took
place. Cundiff gave Schneller a phone number where he
could be reached. Schneller relates that a few days later,
on 13 June 1985, at 7:30 a.m., Cundiff called Schneller
Jr. back. According to Schneller, Cundiff this time said
that all the former employees wanted their settlement on
their vacation and sick days immediately because they
knew it was over. Cundiff told Schneller that the
Union's basis for delaying this is to recover backpay.
Cundiff said all the former employees felt this way,
except Joe Fincher, because they (the other employees)
did not want anything to do with him. According to
Schneller Jr. he told Cundiff that he still had not heard
from his attorneys. There is no evidence that the Em-
ployer at this time sought any clarification on the
Union's prior offer on behalf of all employees to uncon-
ditionally return to work. What is only apparent is that
on the same day as Cundiff's first conversation, Amato
sent his nonresponsive letter to the Union.
Cundiff was called as a rebuttal witness by the General
Counsel. Cundiff confirmed he had two phone conversa-
tions with Schneller Jr. and that he placed the calls.
Cundiff testified that he was concerned about his vaca-
tion time, and that in the first conversation he asked
Schneller Jr. about vacation time that he felt was due
him. According to Cundiff, Schneller told him he would
get with the lawyers and to call him back in a couple of
days. Cundiff did call a second time and, according to
Cundiff, Schneller told Cundiff this time that the checks
were in the hands of the lawyer and that is all he knew.
Cundiff asserted that was the end of the conversation.
Cundiff otherwise specifically denied that he told
Schneller that all he wanted was his money and that he
did not want to come back to work, and he specifically
denied that he said that all that any of the other strikers
wanted was their money, and that they did not want to
come back to work. Cundiff denied that there was any
discussion of sick leave. (It appears that as of July the
Union was claiming as due to Cundiff $1,541.54 for pro
rata vacation earned through 12 November 1984; $305.76
for 3 days' sick pay; and $101.82 for 8 hours worked on
12 November 1984, the day before the strike. By answer
of Amato's letter of 22 August 1985, the Employer con-
tended that Cundiff had been paid on 17 November for
the work on 12 November, confirmed the amount of the
vacation pay then due, and contended otherwise that
Cundiff was due only 2 days' sick leave benefit of
$203.84. There were other disputed claims. If such claim
disagreements appear inconsistent with Cundiff's recol-
lection of Schneller Jr.'s assertion that the checks were
in the hands of the attorneys, no more does the Employ-
er's assertion that all the employees no longer wanted to
return appear inconsistent with Amato's response to re-
quested negotiations at this time and the resumption of
strike activity on 22 June 1985.
LAND AIR DELIVERY 1143
c. The strike resumption
On 22 June 1985, Local 41 went back on strike and,
according to Speak, this time it began to stay at the
Emery facilities. Speak has testified that they observed
new employees come and go whom they had not seen
before. Speak asserted that that prompted the Union to
file the new (instant) charges. However, as noted, the
new (instant) charges were not to be filed until 8 Octo-
ber. There is some evidence (in G.C. Exh. 6 series) to
support Speak's reported observations, viz, an apparent
appearance of new contract driver names in June, July,
and August. At least as of time of renewed strike, the
Employer could no doubt continue to be interested in
the return of its unit employees to its employment.
9. Negotiations and correspondence
By letter of 1 July 1985 to Conder, Attorney Amato
acknowledged receipt of an earlier letter of 18 June 1985
from Local 41's secretary-treasurer, Johnson , designating
Conder as a member of the Union's subcommittee for ne-
gotiations . After presenting the details of his existing
schedule for the month of July and looking to mutual
agreement on a date to begin negotiations, Amato re-
quested that the Union's proposal, if available, be submit-
ted prior to the meeting to be arranged. Though Speak
had a recollection at one point that there were a number
of letters between Johnson and Amato as to which Speak
has asserted Amato could not make the meetings with
Johnson, none were introduced. Moreover, Speak later
acknowledged that Conder had the negotiations, and
Speak was not aware of any direct letters or phone calls
between Conder and Amato. Conder did not testify.
Conder did reply to Amato, but on this record, in Sep-
tember. Other matters were being pursued by the Union
in the interim.
Local 41's attorney, Michal A. LeVota, wrote a letter
dated 16 July 1985. Therein, in addition to requesting
that certain vacation and other (sick leave) benefits pay-
ments be made to the 13 unit employees, LeVota re-
quested:
We hereby request that you provide us with the
employment status of each and every member with
Land Air Delivery, Inc., hereinafter referred to as
the "company" and pursuant to 290.140 R.S. Mo.
1982, provide us with the effective date of their
layoff status or termination.
By letter dated 22 July 1985, Joe, Schneller Jr. acknowl-
edged receipt of the above letter on that day and ob-
served it was misaddressed. Schneller Jr. advised that
Land Air's response would accordingly be written 10
days from the date of Schneller's letter, not LeVota's
letter, as requested. There was however no response
from the Employer before Local 41's attorney had occa-
sion to write a second letter.
LeVota's second letter, dated 16 August 1985, ad-
dressed to Amato stated that prior Employer corre-
spondence indicated that the Union would receive a
reply by 1 August 1985, but that it had not received a
reply as of 16 August. The LeVota letter recited, inter
alia:
In addition to our lack of information as to our
members ' status , Land Air . . . refuses to clarify its
position with reference to the reinstatement of our
members . To refresh your memory, our members
unconditionally, offered to return to work on or
about April 9, 1985. Our members' unconditional
offer to return to work has continued unabated
since April 9, even though Land Air has refused to
take meaningful and concrete steps to schedule col-
lective bargaining . Additional requests to clarify the
company's position have not been fruitful.
Copies of prior correspondence were supplied, and it
was specifically brought to the attention of Amato that
the appeal time had run prior to Amato's letter of 10
June 1985 . LeVota's letter then went on to further assert:
The company's position with regard to the un-
conditional return of our members is further compli-
cated by an indication by the company that our
members would only be offered re-employment as
independent contractors and not as employees
which are part of the bargaining unit. We reached
this conclusion because the only communications
we have in this matter is a draft of a letter that was
mailed to me but addressed to Teamsters Local 41
by Joseph Schneller, Sr. dated April 9, 1985, a copy
of which is attached hereto. This draft does not
appear to have memorialized into a final corre-
spondence but shows an intent on the part of the
company to discriminate against our members for
their strike activities. Since the National Labor Re-
lations Board has viewed our strike as an economic
strike, the company has a duty to reinstate the em-
ployees once they have conditionally [sic] agreed to
returned to work. NLRB v. Fleetwood Trailer Co.,
389 U.S. 375, 378, 66 LRRM 2737 (1967) and our
striking members retain their employee status pursu-
ant to 2(3) of the National Labor Relations Act
while on strike. Neither Teamsters Local 41 nor the
striking employees have have been advised by the com-
pany that they have been permanently replaced. [Em-
phasis added.]
This questioned document referred to above has not
been placed in evidence by any party. With reference to
the prior Regional Director's dismissal letter of 21 May
1985 (copy (then) supplied to Amato), LeVota further
related:
[T]he Regional Director had indicated at that time
that it did not appear that Land Air had hired any
employees since our unconditional offer to return to
work on April 9, 1985. Information however has
come to Local 41 since Mr. Hendrix's letter of May
21, 1985 in which the company has added additional
independent contractors or in the alternative the in-
dependent contractors have added additional em-
ployees and/or sub-contractors. All of this however
establishes a pattern of conduct on the part of the com-
pany that is calculated to unlawfully and unilaterally
do away with the certified bargaining unit by unilater-
ally sub-contracting bargaining unit work without first
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining with Teamsters Local 41. Our specific in-
formation is that there has been a significant in-
crease in work since April 9, 1985, especially in the
Johnson County, Kansas area . We have been ad-
vised that the following individuals at the designat-
ed addresses are not performing work previously
performed by our bargaining unit and these individ-
uals were not associated with the company prior to
April 9, 1985, to-wit: [Emphasis added.]
Name
1. Roger Williams
2. Jack Wright
3. Dave Anderson
4. Don Fowler
5. Tom Pope
6. Joe Patterson
Address
P.O. Box 529, Platte City,
MO 64079
1205 Main, Oswatomie, KS
66064
401 N. Washington, Spring
Hill, KS 66803
1254 Lowell, Kansas City,
KS
5502 N.W. Waukomis,
Kansas City, MO
21270 S. Clair , Spring Hill,
KS 66083
7. Keith (last name
unknown)
8. C. Smith
9. Terry McDonald
We have also been advised by Emery Air Freight
that Land Air Delivery, Inc. will also take on the
additional responsibility of all dock work for Emery
Air Freight, Inc. and given this increase work
force, we see no practical reason precluding our
members from being reinstated to their positions
with the company. We are also advised that Terry
McDonald, listed above, who was previously a
dock worker for Emery has left the employment of
Emery Air Freight and is not acting as an inde-
pendent contractor for the Company.
LeVota specifically requested a written position, perti-
nently as to:
a. The employment status of our members per
our letter of July 16, 1985.
c. Our request for service letters pursuant to
290.140 R.S.Mo. 1982.
d. Whether the draft letter of April 9, 1985 cor-
rectly states the company 's position that our mem-
bers will only be offered reinstatement as independ-
ent contractors.
e. Whether additional independent contractors or
additional employees of independent contractors are
performing the work previously done by our bargaining
unit [emphasis added].
f. Why Land Air Delivery, Inc. continues to
refuse to reinstate the striking employees and the
specific circumstances under times, dates and places
under which our members' jobs will be reinstated.
g. What specific time , place and date the compa-
ny proposes to meet to resume collective bargain-
ing.
Finally, LeVota's letter advised of the prospect of new
charges:
Because of this new information that shows the
significant hiring of independent contracts to per-
form our bargaining unit 's work and because of the
now 4-month delay since our members have contin-
ually offered to return to work, we consider your
company's present refusal to reinstate our members
as a violation of 8(A)(3) of the NLRA by discrimi-
nating against our members for their union activity
associated with their economic strike. Since there
was an indication of a potential willingness to
resume bargaining we felt in good faith that we
should allow you and your company the opportuni-
ty to clarify your position before returning to the
National Labor Relations Board for appropriate
action; however, unless you clarify your position
within ten (10) days from the date of this letter, we
shall return to the National Labor Relations Board
with our new information to file unfair labor
charges for the reasons previously discussed.
Although the Union clearly in this letter of 16 August
1985 had raised a concern about the Employer's subcon-
tracting and made request for information thereon in
general form , the concerns expressed were about infor-
mation indicating , in contrast with the Regional Direc-
tor's earlier determination that the Employer had not
hired employees after 9 April, and that there were now
specific indications the Employer had thereafter added
contractors, or its contractors had added employees,
with the specifics of the latter presented by the Union
for the Employer's clarification. Significantly, the Union
pointed out that neither it nor the employees had been
theretofore advised by the Employer that the strikers
had been permanently replaced.
By letter of 22 August 1985, Attorney Amato replied
to Attorney LeVota, as follows:
With regard to the employment status of the
members I can only state to you the facts as they
occurred but as far as putting a label on their status
your guess is as good as mine . The facts are that on
November 13, 1984 the members went out on strike
in an attempt to impose economic sanctions against
the company for its refusal to process further a
deadlocked grievance. This was in accordance with
an addendum to the Agreement between the com-
pany and Local 41. The strikers were notified to
return to work and failed to do so. The company
hired some additional employees as replacements and
continued to conduct business as it formerly did prior
to the strike. On April 9, 1985 the members offered
to return to work "unconditionally" and were ad-
vised that there were no positions available. Subse-
quently , a charge was filed with the N.L.R.B., CA-
12564 and after an investigation the Regional Direc-
tor, on May 21, 1985 declined to issue a complaint.
No appeal was taken from this decision. On or
about June 22, 1985 members of Local 41 again
began picketing the Emery facility on Prarie View
LAND AIR DELIVERY 1145
Road with a sign that reads, "On Strike-Teamsters
Local 41-Land Air Delivery-Unfair Labor Prac-
tice." This picketing has continued up to and in-
cluding this date. [Emphasis added.]
Not only did the Employer not inform the Union that
all striking union employees had been replaced by per-
manent subcontract, the Employer specifically dis-
avowed the employees were terminated. Thus after re-
sponding to certain union claims made in regard to vaca-
tion and sick leave benefits, not deemed further material
here, Amato additionally responded:
In regard to item c. of your letter l am unable to
see that the Missouri statute you refer to is pertinent
or relevant to this situation. The company did not
dismiss any of the members and to the contrary re-
quested that they return to work. In view of the
facts as I have stated them above your position of
requesting a letter of dismissal pursuant to the Mis-
souri statute cited appears totally inconsistent.
As to the draft of a letter referred to in your item
d., I would first of all like to know how that docu-
ment came into your possession. As you may or
may not know, since it was prior to your represen-
tation of Local 41, there have been numerous com-
pany records, letters, etc. that have mysteriously ap-
peared in the possession of officials of Local 41. In
fact the theft of these documents is presently part of
a legal action pending in the U.S. District Court in
Kansas City which is the reason for my inquiry as
to how this letter came into your possession. Never-
theless, it is not now, nor has it ever been the posi-
tion or intention of the company to offer reinstate-
ment to the members on the condition that they
become independent contractors. The draft letter, as
you know, was never signed nor sent and does not
even purport to say that such would be a condition
of reinstatement. I sincerely question your good
faith efforts to resolve these important issues for the
members in view of the totally erroneous character-
ization of the language in the referred to draft
letter.
Item 3.; Land Air has continued to conduct its
business in the same manner and method as it did
following the strike on November 13, 1984. No new
contractors or employees have been added since
April 9, 1985.
Item f.; Land Air has not refused to reinstate any
of the members and does not know at this time
when additional employees will be required.
With respect to the names and addresses of the
persons you list on page two of your letter, two of
the individuals, Don Fowler and Tom Pope, and
Land Air Independent Contractors and the rest are
employees of Land Air Independent Contractors.
All of these persons, with the exception of Terry
McDonald, became associated with Land Air or
one of its contractors prior to April 9, 1985. I am
advised that Mr. McDonald was hired by one of the
contractors to replace a driver that quit who had
been working prior to April 9th.
The Employer did not definitively advise the Union
that Fowler and Pope had entered subcontracts on 20
February along with the others (Benefield and Ken
Horton and Supervisor Mawby on 1 March 1985), let
alone that all unit work had been permanently subcon-
tracted out since that time. In contrast, in regard to those
specifically inquired about and addressed by Amato
and/or whose circumstances have been earlier addressed
(viz Roger Williams, Fowler, Pope, and Terry McDon-
ald), General Counsel's Exhibit 6 series reflects Ander-
son and Wright as Rinehart associated drivers since (at
least) early December 1984; Peterson at least since 20
February 1984; Keith similarly (at least) as of 29 March
1985; and C. Smith similarly (at least) as of 8 April 1985.
In final correspondence (of record), by letter dated 3
September 1985, Conder responded to Amato's 1 July
letter, confirming a desire to meet in Kansas City, pro-
viding the Union's proposal, and requesting that Amato
call Conder. The union proposal submitted was a one-
sheet document proposing the new NMFA recently ne-
gotiated for the period 1 April 1985 through 31 March
1988, but with copies of changes enclosed. Conder's
letter, though indicating the Union preferred the NMFA,
also related:
[W]e recognize tht [sic] if you desire to Negotiate
an Agreement other than one involving a Multi-
Employer Unit we must and will accommodate that
desire. This proposal is in no way intended to re-
quire you to join or becone [sic] a part of any
Multi-Employer Unit or Group.
The Union reserves the right to add to, delete, or
otherwise modify thid [sic] proposal at any time
during negotiations.
a. Emery dockwork takeover
It may be observed that the Amato 22 August letter
did not specifically address union assertions as to the
claimed significant increased work generally and/or spe-
cifically in the Johnson County, Kansas area , nor did it
directly address Land Air's taking on the dockwork for
Emery. As to the latter, President Schneller has testified
that in July 1985 Land Air started to do all Emery's
dockwork. However, Schneller explained that prior to
this Emery picked up its freight at the airplane and
sorted the freight at the dock. Although Schneller initial-
ly said he did not really know, Schneller thereafter
stated that Emery basically had a crew of part- timers in
the morning and a crew in the evening, and Schneller
guessed that there were about 8-10 employees. Schneller
further explained however that when Emery came to
Land Air to take over, Emery had streamlined the busi-
ness , and had done away with most of the freight han-
dling on the dock. What ever was left, Emery wanted
Land Air to do. Moreover, Schneller testified that there
was no additional compensation granted Land Air for its
performance of this new work, and Land Air had to
absorb it. According to Schneller, Land Air thus could
not afford to hire any new dockwork employees. Land
Air in turn forced this work on the contractors. Presi-
dent Schneller also testified that this work had never
1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
been done by bargaining unit people ; it had never been
done by anyone (with Land Air) before. (There is no
specific complaint allegation as to Respondent Employ-
er's failure to reinstate strikers for the above dockwork.
However, there is general allegation that Respondent
Employer has refused , and continued to refuse to rein-
state strikers .) The Company urges that it (lack of Emery
compensation for the work) was further evidence why
the Company could not recall any employees to perform
this work.
b. Increased contractor work
With regard to contractors being given increased
work, Schneller testified only generally. Land Air is pro-
vided manifests from Emery computers . Supervisor Dis-
patcher Mawby hands the manifests out to the contrac-
tors. They break the freight out, and each contractor
takes what goes to him. President Schneller initially testi-
fied that Mawby does not decide how much work he is
going to give contractors, that the work is broken into
geographical areas . Some Land Air contractors do not
have any employees , some one, and some more than one.
President Schneller testified that there is no set pattern
to the work. President Schneller also testified that it was
primarily Michalski who had made the decision on the
hire of additional contractors and/or the arrangements
that there were made with the contractors on geographi-
cal areas or what work they were to be assigned. How-
ever, Schneller later acknowledged that Mawby does it
now, and that Mawby makes any adjustments in the
work of contractors as required at any given time.
Mawby has radio contact with the contractors and their
drivers, though contractors/drivers usually call Mawby.
Schneller did not know if the contractors had hired addi-
tional employees after 9 April 1985. Mawby did not testi-
fy.
The General Counsel introduced a 21-page exhibit
(G.C. Exh. 6) as a document prepared by Land Air per-
sonnel and reflecting the number of pickups and deliv-
eries on the date(s) indicated on the document (s) made
by Land Air personnel on behalf of Emery . Respondent
Employer expressed no objection. Indeed , it expressed
willingness to stipulate the documents (making up the ex-
hibit) were prepared in the ordinary course of business
and, although reserving only exact accuracy , agreed that
for all practical purposes they accurately reflect what
happened . The documents cover 21 dates, inclusive of
the date before and day of strike (though driver identity
on these days was coded for asserted security pur-
poses)-the first day following apparent making of the
above independent contractor contracts , the day before
and day of the Union's unconditional offer , and the vari-
ous other dates extending over a year. The General
Counsel 's purpose in offering the exhibit as stated at the
proffered time was to give an idea, over time , as to how
much business Land Air did for Emery, because that is
the bulk of the work that was performed by the unit. To
the extent Respondent would object to any appropriate
probative force being given to this exhibit in assertion
made in brief that the Employer is not sure what the ex-
hibit proves, that assertion, if intended as an objection to
be placed now , e.g., on exhibit inadequacy for purpose
offered, in my view comes too late. I shall view the ex-
hibit as appropriately reflecting material dates and over-
all as an adequate random sampling of the business
records of Respondent and, certainly for the explicitly
stated purpose when offered , without objection. Re-
spondent Employer otherwise , in brief, would itself have
the gross revenues observed, with assertion that though
fluctuating , the revenues remained in $4000 to $5000
range . This will be done .4 Pickups and deliveries are
thus shown under heading "P/D," and revenues in com-
bined (and rounded) dollars under caption "Rev." The
same may then be portrayed as follows:
Monday
P/D/Rev.
Tuesday
P/D/Rev.
Wednesday
P/D/Rav.
Thursday
P/D/Rev. Friday P/D/Rev.
11-12-84 265/343/$3728
11-13-84 328/347/$3910
11-26-84 293/198/$2655
12-3-84 288/336,'$3715
12-7-84 355/43/$5306
1-3-84 (sic) 312/334/$4292
2-21-85 331/405/$4069
2-27-85 348/475/$4926
3-20-85 275/477/$4167
3-29-85 344/457/$4643
4-8-85 296/272/$3287
4-9-85 377/382/$4261
4-17-85 328/470/$4545
5-29-85 406/482/$4786
6-28-85 412/468/$4722
7-15-85 424/405/$4213
8-5-85 465/491/$4930
8-27-85 454/401/$4581
9-9-85 498/520/$5208
* Any totals on the exhibit placed in evidence are not legible , nor has viduals ' revenues are presented, and they have been totaled for the pur-
the Employer supplied its contended summations Nonetheless the indi- pose
LAND AIR DELIVERY 1147
Monday Tuesday Wednesday Thursday
P/D/Rev. P/D/Rev. P/D/Rev. P/D/Rev.
10-8-85
11-6-85
It is readily apparent from the above that the Employ-
er has had more pickups and deliveries in the last 10
days (starting 9 April 1985 and extending over a 7-month
period) than it did in the prior 11 days (starting the day
before the strike and extending through 5-month strike
period). There were 3435 pickups and 4081 delivers in
the first 11 days, or an average of 311 pickups to 371 de-
liveries per day. In the last 10 days, there were 4306 pick-
ups and 4689 deliveries, or an average of 430 pickups to
469 deliveries per day. In short, in the 10 (lays starting 9
April 1985 the average of total pickups per day had in-
creased 38 percent (119 increase divided by 311 base),
and the average of total deliveries had increased 26 per-
cent (97 increase divided by 371 base). Moreover, con-
trary to the Employer' s urging, it is as obvious that gross
revenues on the average had similarly increased. The
gross volumes for the first 11 days presented was in total
$44,698 or an average of $4063 gross revenue per day.
The gross revenues for the last 10 days presented was
$47,603 or an average of $4760 per day. The difference
was an increase in average gross revenues per day of
$697 or 17 percent ($697 increase divided by $4063 base).
Moreover, the increase toward 5000 level is discernibly
more pronounced at the end of the second period. New
names compatibly begin appearing on General Counsel's
Exhibit 6 for the first time in the same period, see, e.g.,
Bob (and/or Rob), John, Fred, and Gary Sloan; Terry
Mawby and Gary Mawby; and individuals Carl, Steve,
Eddie, Donna, and Gribble on Rinehart. ][ credit Speak
(at least) that he began seeing new faces following the
union and employee strike return on 22 June.
10. Further contentions and offered evidence on
failure to reinstate
Speak testified that Land Air has not to date reinstated
any striking employee. Speak testified that the Employer
has not notified him that it had replaced any unit em-
ployee. Land Air is still engaged in the pickup and deliv-
ery work for Emery. Speak also testified that from ob-
servance of the dock there is no way to tell if drivers are
employees of Land Air or subcontractors. All bargaining
unit employees wore Emery uniforms. After the strike,
although not necessarily immediately, according to
Speak, all the individuals who performed the work pre-
viously performed by bargaining unit employees eventu-
ally did wear Emery uniforms.
On cross-examination, Speak acknowledged that in
1982 when Speak first began policing the agreement, and
prior to negotiation of the 1982-1985 agreement, there
were then about 12 employees in the bargaining unit, and
Speak's recollection was that there were about 25 people
working on some kind of contract at that time. He was
aware of the prior unit clarification, though before his
time, and of the fact that the Employer was subcontract-
ing even at that time. Speak did not know the current
489/549/$5295
463/521/$5062
Friday P/D/Rev.
(last 2 months) number, but acknowledged it was prob-
ably true there are now approximately 25, but he testi-
fied that, in his personal belief, there are now more con-
tractors and contractor helpers than when he first came
with the unit.
Respondent established that in the prior affidavit of 1
May 1985, Speak had then stated, "Since that time by
1982 we had about 12 employees on the seniority list and
approximately 25 independent contractors." Speak ac-
knowledged that he had also stated, "I have no idea how
many people are currently working for Land Air, prob-
ably 25." At the hearing, he testified that he did not
know if all of them were contractors or not. He further
testified in explanation of the reference to 25 contractors
of some kind that to the best of his ability and knowl-
edge Land Air had hired several people just as employ-
ees.
On another occasion Speak referred to the 25 as extra
people working there that he referred to as contractors,
other than bargaining unit employees. On a later occa-
sion he also said he would say it was approximately the
same number in April 1985, but did not have any way of
keeping up with exact numbers. He did not have access
to the books. Respondent urges and relies heavily on
Speak's asserted admission that the number of contrac-
tors now are the same as they were before the strike.
a. Contentions of the parties
The General Counsel observes correctly that Respond-
ent has admitted that the Employer had subcontracted
all the unit work since at least March 1985; that all strik-
ers were permanently replaced; and that the Employer
acknowledged that the Employer had not given earlier
notice to, or bargained with, the Union concerning its
decision to subcontract part, and then the entirety, of the
unit work. The General Counsel asserts that Respondent
sees its past practice in subcontracting as privileging its
unilateral (subcontracting) actions during the strike.
However, the General Counsel sees the subcontracting
issues as essentially threefold: (1) does an employer have
the right to permanently subcontract unit work during a
strike without notice to, or bargaining with, the union;
(2) is the decision to subcontract work in this case a
mandatory subject of bargaining under the Board 's deci-
sion in Otis Elevator, 269 NLRB 891 (1984); and (3) did
the Union waive its right to bargain about unilateral sub-
contracting of unit work. On the latter point, on this
record, it could not be clearer in background that the
Union did not waive its right to bargain about subcon-
tracting of unit work. Indeed the Employer does not
content it did, but (seemingly) only that the parties have
had a dispute over the application to prior subcontract-
ing.
The General Counsel's basic argument essentially pro-
ceeds as follows: Subcontracting as an issue of bargain-
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing normally arises where , as here , it "will effect some
change in the terms and conditions of employment of the
employees involved." Westinghouse Electric Corp., 153
NLRB 443, 446 (1965). An employer's subcontracting
that effectively eliminates the work of an entire unit of
employees, but substitutes a performance of the same
work for the employer by a contractor, even when moti-
vated by economic considerations alone, is a mandatory
subject of bargaining , Fibreboard Corp. v. NLRB, 379
U.S. 203, 214-215 (1964). In strike circumstances, the
Board has previously held that permanent replacement
by subcontracting is similarly a mandatory subject of
bargaining where the effect of a permanent replacement
of strikers by subcontract is essentially an abolition of all
unit positions, Alexander Linn Hospital Assn., 244 NLRB
387, 390 (1979), enfd. 624 F.2d 1090 (3d Cir. 1980).
Indeed, the General Counsel has contended that the
Board has long required an employer to bargain about
subcontracting when the subcontract is intended to be
permanent, and thus will impair the status of the union,
Southern California Stationers, 162 NLRB 1517, 1533-
1534, 1539-1542 (1967). Permanent subcontracting is to
be distinguished from nonpermanent, stopgap, or tempo-
rary measures designed by an employer to continue serv-
ing its customers during the strike, Empire Terminal
Warehouse Co., 151 NLRB 1359, 1364-1365 (1965). The
General Counsel concedes that an employer is not under
a duty to bargain over temporary subcontracting necessi-
tated by a strike where such subcontracting does not
transcend reasonable measures necessary in order to
maintain operations in strike circumstances, with ac-
knowledgment that subcontracting prohibition without
bargaining are not hard and fast rules nor are they to be
mechanically applied, Shell Oil Co., 149 NLRB 305, 307
(1964) (adequate notice of transfer of work, willingness
to confer , and minimal effect on unit); and Shell Oil Co.,
149 NLRB 298, 300 (1964) (temporary subcontracts lim-
ited in duration to economic strike, and with Board ap-
proval of the exercise of right to maintain established
practices not precluded by contract with respect to sub-
contracting during period between contracts).
The General Counsel thus readily has viewed as distin-
guishable varying case circumstances where an employer
may subcontract as a temporary measure to aid the em-
ployer to keep its operations intact during a strike, and
where the subcontracting during a strike does not exceed
what is necessary for that purpose, e.g., as here, to rea-
sonably ensure deliveries to the employer's customers,
Empire Terminal, supra, 151 NLRB at 1365; and Shell Oil
Co., supra, 149 NLRB at 300-301 (but notably in the
latter, with an issue of any expanded subcontracting prac-
tices reserved). The General Counsel furthermore ac-
knowledges the appropriate temporary character exists,
even if the subcontract period extends beyond the strike,
provided the subcontracts when entered are of reasona-
ble duration, and initially dictated by exigencies of the
strike, or because of threat of imminent strike, Elliot
River Tours, 246 NLRB 935 (1979).
The Employer correctly observes that it is axiomatic
that permanent replacement of striking employees for
economic reasons during an economic strike does not
constitute a violation of the Act, NLRB v. Mackay
Radio, 304 U.S. 333 (1938). The Employer then centrally
defends that the strike that commenced on 13 November
1984 was an economic strike; that the Employer's perma-
nent replacement of economic strikers with contractors
rather than employees was for an equally clear economic
reason , namely, to enable it to continue to meet its con-
tractual obligations to Emery; and that (it asserts) perma-
nent replacement by subcontract is not a violation of the
Act. The Employer thus contends the economic strikers
here were consequently entitled to reinstatement only
when and if work was available. The Employer contends
the record shows that work was not available on 9 April
1985, and thereafter. The Employer further asserts in the
latter regard that the record shows no increase in the
Employer's subcontracting since the end of the strike on
9 April 1985.
The Respondent would basically rely on Arthur Corp.,
246 NLRB 1183 (1979), urging it as a case in which the
Board has affirmed an administrative law judge's holding
that an employer who (essentially permanently) subcon-
tracted bargaining unit work during a strike did not vio-
late the Act when the Employer refused to reinstate eco-
nomic strikers who had unconditionally offered to return
to work. It was there found that the offer came after
subcontract replacements were told and they understood
they were to complete the pending work. It seems to me
that the Arthur case , supra , is distinguishable on two
counts. First, the complaint did not allege a violation of
Section 8(a)(5) and , accordingly, it does not address any
employee-related bargaining obligation under the Act,
even in the absence of discriminatory motive. A second
distinction even in an 8(a)(3) and (1) violation is that in
Arthur, as the General Counsel correctly observes, the
decision to close the affected operation had clearly pre-
ceded any union activity, and it was occasioned for clear
economic reason . However, the Employer has also urged
as of particular relevance in the Arthur case that the ad-
ministrative law judge had cited and relied on the deci-
sion of the Ninth Circuit Court of Appeals in Hawaii
Meat Co. v. NLRB, 321 F.2d 397 (1963), wherein the
court had held that an employer's permanent replace-
ment of striking employees with subcontractors was not
a violation of the Act, if done for economic reasons. The
Hawaii Meat case did involve Section 8(a)(5). The trial
examiner however had found, and the Board affirmed in
the underlying case , Hawaii Meat Co., 139 NLRB 966
(1962), that the employer was obligated to bargain with
the union about its decision to subcontract out its deliv-
ery work, with reliance on its (then) recent Town &
Country Mfg. Co., case, 136 NLRB 1022 (1962), enfd. 316
F.2d 846, 847 (5th Cir. 1963). The Board also in Hawaii
Meats specifically expressed the view that NLRB v.
Mackay Radio, supra, was not dispositive. The Board ac-
knowledged that Mackay held that an employer is justi-
fied, in attempting to keep his plant in operation, to hire
new employees as replacements for economic strikers.
However the Board noted the employer was obligated to
continue to bargain with the union after a strike oc-
curred; and it thereafter ruled in Hawaii Meats, supra,
139 NLRB at 969, "The elimination of unit jobs (and the
consequent erosion of the bargaining representative's
LAND AIR DELIVERY
status) is, we are satisfied a mandatory subject for bar-
gaining, even though the employer may seek to justify
his action in terms of the replacement of economic strik-
ers." Notably the Board therein also held, ld. at 969, "In
this case , individual strikers are not being replaced by
other employees, but instead, the positions they held
before the strike have been eliminated , so that no re-
placement is being substituted for the striker." The
Board also observed thereafter the "very existence of the
certified unit was at stake ." The employer nonetheless
urges as language particularly applicable , the court's as-
serted comparison of permanent replacement of striking
employees with employees , to permanent replacement of
employees with subcontractors, 321 F.2d at 400, to wit:
We think it no more proper for the Board to in-
trude upon the decision of the employer , in a strike
situation , to keep going by subcontracting, than to
intrude upon a decision to replace , permanently, in-
dividual strikers. This, we think, is consistent with
the philosophy expressed by the Supreme Court in
N.L.R.B. v. Insurance Agents" Union, 1960, 361 U.S.
477,488-498 . . . .
The Employer argues the above Hawaii Meats (court)
decision was cited by the administrative law judge, in
the Arthur case that (the Employer asserts) was then af-
firmed by the Board. I do not agree. To the contrary it
appears to me that what the Employer would rely on as
such was actually but the administrative law judge's reci-
tation of that employer 's particular contention or urging;
and that the judge made it clear in the following para-
graph the dispositive rationale was otherwise, viz, "The
applicable legal principles covering this case are set forth
in N.L.R& v. Townhouse T Y. & Appliances Inc., 531
F.2d 826, 828-829 (7th Cir. 1976,1," a case in which the
Seventh Circuit enforced in pertinent part the Board's
determination that an employer had subcontracted out its
delivery unit work to avoid recognition of the Union. s
The short answer in the issue presented here, in any
event, is that the very argument sought to be raised by
the Employer here has previously been raised before
other administrative law judges , been duly considered,
and rejected as inconsistent with existing Board prece-
dent, and with those repeated rulings thereafter ap-
proved by the Board, Alexander Linn Hospital Assn., 244
NLRB 387, 390 fn. 2 (1979); Southern California Sta-
tioners, 162 NLRB 1517, 1542 (1967). Contrary to urging
by the Employer in its brief, the breakdown in attempted
analogy of striker employee replacement by employee,
and unit displacement by subcontract has been clearly
exposed, and flaw explicated, American Cyanamid Co.,
235 NLRB 1316, 1323 (1978), enfd. 592 F.2d 356, 358
(7th Cir . 1979). I am bound by existing Board precedent,
not clearly reversed by the Supreme Court, or the
Board. Iowa Beef Packers, 144 NLRB 615 (1963).
The Employer has itself otherwise raised as salient the
Board 's ruling in Elliot River Tours, 2.46 NLRB 935
(1979), overruling an administrative law judge, and find-
ing an employer did not violate the Act in subcontract-
5 Townhouse TV & Appliances, 213 NLRB 716, 723A (1974).
1149
ing an employer's commercial river trips for 1978 and
1979 to other outfitters when the employer was present-
ed with an imminent strike threat from the entire unit of
Oregon River guides. The Board specifically held the
employer in such circumstances was rightly concerned
that its customers not face an abrupt cancellation of their
trips after coming long distances, and the subcontractor
outfitter there conditioned its acceptance of providing the
1978 service on the contract's inclusion of the 1979
season. The subcontracting of 1978 and 1979 trips could
thus be, and was , considered an economic and business
necessity faced by the employer. I am persuaded that the
Elliot River Tours case is , as the General Counsel con-
tends it to be, a case of permissible temporary subcon-
tracting, with the expanded length of contract reasonably
warranted on the particular circumstances of that case-
circumstances that are demonstrably inapposite to those
presented here , as discussed further infra.
To the extent the Employer would rely on other
Board holdings, e.g., in Precision Casting Co., 233 NLRB
183 (1977), and Emporium, 221 NLRB 1211 (1975), the
reliance is misplaced . It is clear those cases are inapposite
on their facts in that in Precision Casting there were no
discernible adverse effects on the unit occasioned by sub-
contracting, 233 NLRB at 210; and in the Emporium
case, a clear prior opportunity had been provided the
union to bargain about the contracting because of the
employer's timely notice to the union of prospective cessa-
tion of unit tailoring work and subcontract of it to an in-
dependent contractor, a condition also clearly lacking
here. Moreover, it is clear, id. at footnote 1, that the
Board relied on Westinghouse Electric Corp., 153 NLRB
443 (1965), where at 446 it reviewed its clarification of
holdings on subcontracting noting particularly there is
no violation where there is no "significant detriment" to
employees in the unit . Clearly such is inapposite here. As
it is not the effect of a contractual prohibition of subcon-
tracting during a strike that is of controlling consider-
ation, the Employer's reliance on Pittsburgh Die Strikers'
Lodge 50 v. Pittsburgh Forgings Co., 255 F.Supp. 142
(W.D. Pa. 1966), that an employer can subcontract in a
strike, cannot cause the Employer to prevail.
In summary then, the record before me, considered in
its entirety, makes it appear sufficiently clear that soon
after the strike had commenced on 13 November 1984,
the Employer had been able to make its required deliv-
eries for Emery by an initial and changing mix of use of
its employees from other locations, its contractors and
contractor drivers, newly hired employees and use of its
own office staff and/or supervisors, and various relatives
and spouses of the above . Respondent's general summary
that "it wasn't easy" to hire drivers when the strike
began must be viewed in that light, and it does not rea-
sonably extend to buttress the February-March contracts.
After the first week or so of the strike the Employer set-
tled in, meeting its service deliveries essentially with a
mix of contractors and contractors' drivers, newly hired
employees, and the continued use of its supervisors, e.g.,
Schneller Jr., Mawby, and Lynch. There is simply no
evidence offered by the Employer that is persuasive that
in late February or early March 1985 the Employer was
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
acting out of business necessity in entering contracts for
the first time with Benefield, Fowler, Horton, Pope, and
Supervisor Mawby.
Respondent 's bare assertion , subsequently revealed to
be uncorroborated hearsay at that, that these employees
"would rather work as contractors" does not suffice to
establish that these employees had demanded as a condi-
tion for their continued service that they be made con-
tractors. Certainly the same does not excuse or justify
Respondent 's act at that time entering subcontracts with
not just the five, but all of its contractors, and in sub-
stance and effect thereby permanently eliminating all unit
work for employees, without prior notice to the Union
or the Employer bargaining thereon. Whatever may or
may not be the merits of the disputes between the parties
over use of its contractors prior to the strike, none of its
contractors before the strike are shown to have per-
formed the unit work specifically performed by these 13
unit employees. The five contracts entered for the first
time by their terms put into the Employer's service
seven pieces of equipment; and they alone thus affected
half the units' work, despite the fact that Respondent by
this time was experiencing no difficulty in meeting its de-
liveries otherwise, e.g., by employee and supervisor serv-
ice as drivers. Although the Employer did not join in the
informal settlement of its charge , the Employer was cer-
tainly aware that the Union had entered the settlement
agreement in early February, and it was aware as well of
the terms of the agreement under which the Union had
agreed, and was to notify its employee-members, that the
Union would not in the future engage in unlawful local
or ambulatory picketing or other specifically described
unlawful conduct . In agreement with the General Coun-
sel's contention, I conclude and find , infra, part II, that
there was no evidence offered of any strike violence, or
threat of same, by anyone after 4 February when the
Union entered this agreement. The General Counsel con-
tends not just the five (or seven) positions filled by the
five new contractors , but all unit positions were effec-
tively extinguished by the Employer's treatment of its
February-March contracts as permanent replacement of
unit employees . I agree , at least as to 12 of the unit em-
ployees. (One position, that servicing General Motors'
Leeds facility, would on the face of this record appear
potentially permanently lost to the Employer's competi-
tor, Shock Transfer.) I further fmd myself in agreement
with the General Counsel's contention that by the above
acts of permanent subcontracting the Employer has vio-
lated Section 8(a)(5) and (1), unless the matter is to be
deemed not such for some other reason.
Certain generally applicable principles are clear. An
employer may not make unilateral changes in mandatory
subjects of bargaining prior to a good -faith impasse in
bargaining, Milwaukee Spring Division, 268 NLRB 601
(1984); nor make changes in mandatory terms and condi-
tions of employment contained in an existing contract,
without union consent, Brown Co., 278 NLRB 783
(1986); Section 8(d) of the Act. Mere good faith and
willingness to bargain is no defense for an employer who
in fact makes unilateral changes in working conditions
during a period of negotiations, NLRB v. Katz, 369 U.S.
736, 743 (1962). An employer also has a statutory obliga-
tion to continue to follow the established terms and con-
ditions of an expired contract as to the employer-em-
ployee relationship pending negotiations and until it has
bargained to impasse with their exclusive representative.
Cf. PRC Recording Co., 280 NLRB 615 (1986).
Here the contract terminated on 31 March 1985,
during an ongoing strike. However, the permanent sub-
contract of all the unit work had already substantially
occurred, in late February, and it was completed in early
March, thus during the life of the contract, and accom-
plished without notice to the Union, let alone with its
consent. Although the contract had terminated on 31
March 1985, thus before the Union's unconditional offer
to return made on behalf of all employees, the only prior
notice the Employer had given the Union on the course
of future bargaining was of its timely withdrawal from
the multiemployer association , and its determination not
to be bound by any contract that association might nego-
tiate . The Employer did not withdraw recognition from
the Union. Its obligation was to continue to negotiate
with the Union as the representative of its employees on
demand. The fact the Union continued on strike after
termination of the prior agreement did not serve to extin-
guish the Employer's obligation to bargain with the
Union about any employer-desired changes albeit on its
desired individual employer basis.
The Employer did not give notice to the Union of its
action , or intention with regard to a permanent subcon-
tracting of all unit positions , neither in February-March
nor at time of actual termination of the agreement and
not even at time of the Union's unconditional offer to
return to work made on behalf of all striking employees.
I am not persuaded there is any efficacy to that end, in
Michalski suprise of an interest by employees in a return
to employment (as opposed to when they returned),
where the strike of employees had continued unabated at
the Employer's entrance. I am wholly persuaded that the
Employer's intended permanency of the prior subcon-
tracts is sufficiently made evident from the continued use
of subcontract drivers (certainly beyond the contractual
30-day required notice of termination provision), and the
Employer's continued failure to recall the available em-
ployees. But the Union was not made aware of any of
this. It is one thing for an employer to (essentially) indi-
cate to the union and employees that as a result of their
economic strike and the employer's concurrent determi-
nation to and successful conduct of operations , employ-
ees have been replaced in their individual positions, and
resultingly there are presently no open unit positions
then available for the formerly striking employees to
return to. It is quite another, for the formerly striking
employees and their representative to have not been con-
sulted, and to be kept ignorant of the accomplished fact
that the very unit positions, previously occupied by the
striking employees, and as to which the Union has bar-
gaining status in representing employees , have been uni-
laterally and permanently contracted away by their em-
ployer to others, without any notice to the employees, or
opportunity for their exclusive representative to have
bargained on their behalf with the Employer thereon.
Any subsequent offer to bargain generally, so long as the
LAND AIR DELIVERY 1151
facts of permanent subcontracting remained undisclosed,
absolves the Employer of nothing. The only remaining
substantive issue on the Employer's initial failure to bar-
gain with the Union over subcontracting is thus whether
the Employer's decision made unilaterally to permanent
subcontract to independent contractors was a decision
made unilaterally on a mandatory subject of bargaining
in the circumstances of this case.
On this issue of the Employer's decision to permanent-
ly subcontract unit work to independent contractors as
an issue of a decision on a mandatory subject of bargain-
ing, the General Counsel correctly observes that we look
to the Board's ruling in Otis Elevator Co., 269 NLRB at
892, where the Board stated:
[T]he critical factor to a determination whether the
decision is subject to mandatory bargaining is the
essence of the decision itself, i.e., whether it turns
upon a change in the nature . . . of the business, or
turns on labor costs ... .
The facts supportive and warranting the ready conclu-
sion that the Employer's subcontracting did not effect a
change in the nature of the business are fully set forth
above in detail and need not be repeated beyond brief
summary here that it is obvious that the Employer pro-
vides the same services to Emery, continues to conduct
its business at the same locations and facilities, did so
with the same supervisors, and conducts essentially the
same pickup and delivery operations. The only thing that
has changed is that contractors and their employee driv-
ers now perform all the bargaining unit work previously
performed by the unit employees„ circumstances essen-
tially much akin to those presented in the Fibreboard
Products case, supra. The above is hardly indicative of a
fundamental change in direction of the business. Nor do
I conclude it has been made so by the Employer's (argu-
ably) concurrent sale of certain van (and truck) equip-
ment, where some have been sold to the same independ-
ent contractors, and some retained for continued use of
supervisors on bargaining unit work, and for (spare) use
by contractors in the same work, or junked for obsoles-
cence that would be present in any case, albeit, some
have also been sold to truck dealers in unspecified
amounts. In my view this is not the type of, or adequate
showing made of withdrawal of capital, that the Board
has previously considered as protraying a substantive re-
direction of enterprise. There was also no showing made
by the Employer of any business need for speed or confi-
dentiality or "unencumbered decision making" in such
action.
To the extent the Employer has, advanced the conten-
tion that the Company's business has taken on a new di-
rection and undergone a change in nature by virtue of
Emery's imposition of certain dockwork on Land Air in
the summer of 1985, apart from the Employer 's urging
the same work was much reduced by Emery, the shorter
answer is that that later business condition can afford no
support or justification for the Employer's action in per-
manently subcontracting 3 or 4 months earlier in the
year. (For the same reason I do not rely on the General
Counsel's labor-cost-saving arguments based on that
same period.) Moreover, there appears to be no eviden-
tiary warrant in this record to conclude that had the Em-
ployer allowed former striking employees to timely
return, they would not have been able to assimilate these
new dock duties, just as well, at that time.
The General Counsel has not sought to show, or if so
has not successfully shown, that independent contractor
base (75 percent of the gross) effected direct labor cost
savings to the Employer over its prior costs generated
from the payment of unit employee wages and benefits,
etc. The General Counsel's arguments appear to central-
ly rest on the prior Board holdings prohibiting an em-
ployer's permanent subcontract of the unit work in strike
circumstances, because of its destruction of unit posi-
tions, and union representation status , as noted earlier.
Neither has the Employer addressed that consideration.
The Employer has argued in brief that the use of em-
ployee drivers with its own equipment, stored at the
Land Air (Emery) facilities, had cost the Company con-
siderable sums of money, which were expended to pro-
vide security for its equipment and to repair vehicles be-
cause of patterns of vandalism and violence. Whatever
might have been the efficacy of such an argument if ap-
plicable to period and circumstances prevalent early on
in the strike , see related discussion , part II, infra, it has a
much less convincing factual base and support in explain-
ing late February early March subcontracts, particularly
where also following union entry of settlement agree-
ment on 4 February 1985, and related union pledge not
to engage in certain such acts; and where there are no
such acts thereafter reported for a least some 2 weeks
before the Employer permanently subcontracts the unit
work away. The absence of a convincing justification
being advanced and the Employer's concealment from
the Union strongly indicate another reason, an unlawful
discriminatory one. Moreover, even if to be construed
otherwise, the Board must deal with industrial reality. It
seems to me that an employer 's labor cost also realisiti-
cally extends to cost associated with labor unrest, includ-
ing any inefficiencies in costs of operations resulting
from its employees engagement in a lawful strike. To the
extent unlawful conduct results in additional financial
loss through damage to property, etc., and is traceable to
the union or employees as agents of the union, such con-
duct is unlawful and can be remedied in other forum. Cf.
Construction Workers v. Laburnium Construction Corp.,
347 U.S. 656 (1964). If the conduct of a union is shown
to have been egregious, the Board may impose a forfeit-
ure of bargaining order, Laura Modes Co., 144 NLRB
1592 (1963). It is not however to be remedied by an em-
ployer's own unilateral action of secretively subcontract-
ing away all unit positions , and a related concealed prac-
tical destruction of the union's representative status. The
subject of discriminatorily motivated contracting was
specifically excluded in Otis Elevator, supra, 269 NLRB
at 892 fn. 4. Cf. Sands Motel, 280 NLRB 132 (1986).
Even if not to be so construed, in regard to any final
weakness in the Employer's asserted basis for unilaterally
subcontracting all unit work permanently, the Supreme
Court's observation may appropriately be recalled on
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining obligation , as stated in NLRB v. Katz, 369
U.S. at 747:
Unilateral action by an employer without prior dis-
cussion with the union does amount to a refusal to
negotiate about the affected conditions of employ-
ment . . . . It will often disclose an unwillingness
to agree with the union. It will rarely be justified by
any reason of substance.
The Employer 's arguments based on Otis Elevator,
supra, and on First National Maintenance Corp. v. NLRB,
452 U.S. 666 (1981), resting on a claimed applicability of
the principle that those management decisions that are
fundamental to the basic direction of a corporate enter-
prise or that impinge only indirectly on employment se-
curity should be excluded from the area of mandatory
bargaining, in my view, are of no avail to the Employer
on the facts of this case , on either count . It is further
concluded that the Employer's secretive determination,
in the fourth month of an ongoing strike of its employ-
ees, to unilaterally and permanently subcontract all unit
work to others , unless shown compelled as a business ne-
cessity arising from the exigencies of that strike , is both,
in essence, discriminatory , and as well amenable to the
bargaining process as a prospective change in a mandato-
ry subject of bargaining, and of nature and order of mag-
nitude that the Employer must first engage the Union to
impasse, absent waiver, before unilateral action by the
Employer is to be deemed appropriate.
The Employer has also advanced a reliance on Handy
Andy Associates, 277 NLRB 208 (1985). The facts of that
case are inapposite . Aside from a consideration of the
fact that the contract in that case contained a contractual
provision that the parties agreed permitted the employ-
er's subcontracting , the employer gave advance notice on
22 February 1983 of its intent to subcontract the unit
work out as of 23 April 1983, which was after contract
expiration date of 1 April 1983 . In the interim the em-
ployer agreed to negotiate for a new contract (at least)
until the subcontract issue was resolved in a forum as
provided by the prior contract. The administrative law
judge there essentially found that the union had waived
its right to bargain over the employer 's decision to sub-
contract and that the subcontract itself was occasioned
for lawful economic reasons . A union waiver must be
clear and unambiguous , Brown Co., 278 NLRB 783
(1986). Whatever may be the outcome of specific griev-
ances the Union may seek to enforce on prestrike sub-
contracting under the instant contract in other forum,
the particulars of which are not even presented by the
Employer here to support or advance its position that
this is not a proper forum to reach (any) subcontracting
issue, I conclude the argument made here in general
form is without merit . Furthermore , the Board is not a
party thereto . See in that regard supporting general rule,
Allbritton Communications, 271 NLRB 201, 202 fn. 4
(1984), enfd. on other grounds 766 F.2d 812, 820 (3d Cir.
1985). Moreover, given the language of the prior con-
tract, the background of a strike over the deadlocked
grievance, and the lack of any effective notice given by
the Employer of its intent to permanently subcontract all
unit positions , during the strike , it can hardly be effec-
tively argued here by the Employer that the Union had
waived its bargaining position on the Employer's perma-
nent subcontracting of all unit positions , which would
appear a wholly different issue presentment, in any
event, and one for this forum.
There remains only to address the Employer's final
10(b) arguments . The Employer 's arguments presented
essentially run as follows : All actions of the Employer
prior to April 1985 are not properly the subject of
(timely) unfair labor practice charges. The contract's
provision proscribing the Employer 's subcontracting ex-
pired with the (NMFA) contract on 31 March 1985.
Thereafter there existed no prohibition against the Em-
ployer's subcontracting (presumably unit work). Any re-
fusal to bargain question (sic, unfair labor practice) must
arise after April 1985. The Union filed an earlier charge
over the Employer's failure to immediately reinstate the
economic strikers, and that charge was dismissed. At no
time during the life of the strike, or for 2 months thereaf-
ter, did the Union request any information about the Em-
ployer's subcontracting, and it cannot be said the Com-
pany refused to supply information when it was never
requested to provide it. The latter position presupposes
no Employer obligation to give prior notice to and bar-
gain with the Union about its own desire to permanently
subcontract all unit work, a position I have earlier con-
cluded under applicable Board precedent to be without
substantive merit.
The General Counsel answers that Respondent's 10(b)
claims are without merit . The General Counsel argues
that there is no evidence presented that Respondent ever
told the Union that the Employer had permanetly sub-
contracted out all the unit work. Despite a 3 June 1985
specific request by Speak for information concerning
subcontracting, the Respondent failed to respond. The
General Counsel further argues that throughout the
summer and fall of 1985, Respondent engaged in a cha-
rade of setting negotiation meetings and soliciting bar-
gaining proposals from the Union concerning a bargain-
ing unit that Respondent had already unilaterally elimi-
nated. The General Counsel would have observed that
Respondent's 22 August 1985 letter (in response) to the
Union's attorney had merely stated that after the strike,
"the Company hired some additional employees as re-
placements," and that after the 9 April 1985 offer to
return to work, "there were no positions available." The
General Counsel thus centrally argues that there is no
evidence that the Union in fact knew, or should have
known, that the Respondent had (permanently) subcon-
tracted all the unit work 6 months prior to the filing of
the (presumably amended) charge (of 20 February 1986).
Moreover, so argues the General Counsel , the amended
charge is sufficiently related to the original charge filed
October 1985 to bring paragraph 7 of the complaint into
compliance with Section 10(b) of the Act. The General
Counsel also asserted that Respondent did not reveal that
it had permanently subcontracted all the unit work until
the investigation of the instant charge. The General
Counsel does not point to direct evidence of record to
support that specific assertion . The record however does
LAND AIR DELIVERY 1153
reveal that the Regional Director's dismissal letter of 21
May 1985 did not address the subject of subcontracting,
nor a permanent subcontracting of all unit work. Neither
the General Counsel nor the Employer has submitted au-
thority in support of their respectively urged positions
on application of 10(b) provisions.
The instant complaint alleges in paragraph 7 that about
1 February 1985, Respondent subcontracted pickup and
delivery of air freight previously performed by unit em-
ployees to independent contractors and that Respondent
did so without prior notice to the Union and without
having afforded the Union an opportunity to negotiate
and bargain as the exclusive representative of Respond-
ent's employees with respect to such acts and conduct.
On weight of evidence presented before me, I have
found that the Employer did subcontract out all the unit
work to contractors, under contracts that were then can-
cellable on 30 days' notice and most of which were en-
tered on 20 February 1985 and the last on 1 March 1985.
Had the Employer concurrently notified the Union, or
the employees, of its intended entry or actual entry into
the permanent subcontract of the unit work when it en-
tered the above contracts, commencing 20 February
1985, the 10(b) period would have begun to run immedi-
ately, and thus have expired on 19 August 1985, render-
ing clearly the amended charge, and likely the original
charge as well, untimely. But the Employer did not con-
currently notify either the Union or any of the affected
unit employees at that time it had decided to and/or had
permanently subcontracted away all of their unit posi-
tions.
In paragraph 8 of the complaint it is alleged that by
engaging in the above conduct, Respondent has violated
Section 8(a)(1) and, in paragraph 10, that by engaging in
such conduct Respondent violated Section 8(a)(5) and (1)
of the Act. There is thus a double allegation of violation
of Section 8(a)(1), one in connection with Section 8(aX5)
and (1), and one separately.
The complaint also alleges that since 9 April 1985, the
Employer failed and refused to reinstate the employees
following their unconditional offer to return to employ-
ment . In paragraph 8 of the complaint it is alleged that
by engaging in such conduct Respondent has violated
Section 8(a)(1), and in paragraph 9, that by such acts Re-
spondent has discriminated (against formerly striking em-
ployee) and violated Section 8(a)(3) and (1). Again there
are two allegations of violation of Section 8(a)(1), one in
connection with Section 8(aX3) and one separately.
The initial or original charge underlying the instant
complaint was filed on 8 October and served on the Em-
ployer on 8 October 1985. This original charge alleged
that the Employer had violated Section 8(a)(3) and (1),
in that:
Since on or about April 9, 1985, Land Air Delivery
has hired one employee , Terry McDonald, and has
caused to be hired, by other Land Air contractors,
other employees of sub-Independent contractors to
perform the same work as was performed by the
bargaining unit. In the alternative, Land Air Delivery
has, since April 9, 1985, continued to allow independ-
ent contractors of sub-Independent contractors to con-
tinue to perform work of the bargaining unit once
there was an unconditional offer to return to work. It
is my information and belief the following individ-
uals at the designated addresses are now performing
work previously performed by out bargaining unit
.. .. [Emphasis added.]
This charge went on to specify the same names and ad-
dresses of individuals such as were then (arguable)
known by the Union in the sense of having been of some
informational notice and subject of inquiry by Union At-
torney LeVota in his letter of 16 August 1985, a letter
sent directly to the Employer's attorney. This original
charge does not allege a violation of Section 8(a)(5). It
otherwise alleges generally that "By the above and other
acts, the above named employer has interfered with, re-
strained, and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act." The 10(b)
period for this charge would appear to clearly encom-
pass 9 April 1985.
On 20 February 1986 the Union filed an amended
charge (served on 20 February 1986), alleging violations
of Section 8(a)(1), (3), and (5), and specifying:
On or about February 1, 1985, it by its officers,
agents, and representatives subcontracted out bar-
gaining unit work without notice to or bargaining
with the Union.
On or about April 9, 1985, it by its officers,
agents and representatives failed and refused to rein-
state striking employees who had made an uncondi-
tional offer to return to work.
In light of the notice facts of the case, it makes no dif-
ference which date is controlling. The Employer does
not establish notice given the Union even on a 10(b)
commencing date on latter basis, viz, of 21 August 1985.
b. Analysis
At the outset it may be observed that a dismissal of a
prior charge does not constitute an adjudication on the
merits, and the doctrine of res judicata has no applica-
tion, but a subsequent charge must itself be one timely
filed, Pepsi-Cola Bottlers of Atlanta, 267 NLRB 1100 fn. 2
(1983). Otherwise we may begin with observation that
Section 10(b) of the Act provides in pertinent part:
Provided . . . no complaint shall issue based upon
any unfair labor practice occurring more than six
months prior to the filling of the charge with the
Board and the service of a copy thereof upon the
person against whom such charge is made ... .
The above filing and service requirements appear in the
conjunctive.
The Board has held that the Act's 10(b) limitation
period commences to run when an employee receives
unequivocal notice from an employer of the employer's
final and unconditional decision for the employee's re-
moval from employ, Postal Service Marina Center, 271
NLRB 397 (1984); and Stage Employees IATSE Local 659
(Paramount Pictures), 276 NLRB 881 (1985). In reaching
1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its determinations in the Marina Mail case, supra, the
Board relied on the Supreme Court's similar approach in
Delaware State College v. Ricks, 449 U.S. 250 (1980)
(tenure), and Chardon v. Fernandez, 454 U.S. 6 (1981)
(termination) cases . The reverse is also true . It cannot be
said that the Union or employees were in a position to
file unfair labor practice charges on acts or conduct of
the Employer of which neither the Union nor employees
had clear or unequivocal notice. Said another way, also
well established, a charging party must have actual or
constructive notice of the alleged unfair labor practice,
the notice must be of clear and unequivocal nature, and
the burden of showing such notice is on the party raising
the affirmative defense of Section 10(b). Cf. Service Em-
ployees Local 3036 (Linden Maintenance), 280 NLRB 995
and see case cited in fns. 2 and 3 (1986). The otherwise
valid distinctions of Machinists Local 1424 v. NLRB, 362
U.S. 411, 417 (1960), have no application to a fraudulent
concealment of an event urged to toll the statue. Id., 429
fn. 19. See also (albeit in context of a reinstated charge) a
required "nexus" of an event's concealment to operative
facts, there found failing, Duff Norton Co., 275 NLRB
646 (1985). The General Counsel's alternative argument
on the amended charge 's allegation of Section 8(a)(5)
(and Sec. 8(a)(3) and (1)), relating back to the original
8(a)(3) and (1) charge allegations, would appear to turn
on considerations of whether there is a virtually insepa-
rable relationship between that which is alleged in the
amended charge with that of the original charge, or
whether the amended charge has alleged separate and
distinct violations that arise from two entirely independ-
ent events, one of which, arising in the amended charge,
is time-barred. Carpenters Local 720 (Stone & Webster),
274 NLRB 1506 (1985). As noted infra, I need not reach
the General Counsel's alternative argument, as in the
end, I conclude and find on the basis of an application of
the above 10(b) principles, and in agreement with the
General Counsel's basic contentions , that the Employer's
10(b) arguments are neither adequately supported in fact
nor persuasive and, otherwise considered, lack merit.
Whatever the observation and/or urging is to be ad-
vanced that the Union and employees were aware from 9
April that employees were not immediately reinstated on
the occasion of their initial (oral) offer to unconditionally
return to employment, neither the Union nor the em-
ployees were reasonably put on notice that they were to
be denied any opportunity for reinstatement, let alone
specifically that they would not be reinstated because all
their unit positions had been unilaterally and permanent-
ly subcontracted to others. All that Speak and the em-
ployees were told on 9 April 1985 was that their return
had not been anticipated and that there was no work for
them that day. Indeed, the Employer's act in securing
up-to-date phone numbers and addresses on 9 April
would only tend to support a reasonable anticipation on
the part of employees and the Union of a return at some
time in the future.
Whether it was the very next day (10 April) that
Speak sent the employees out again to return to work, or
the next and same day (11 April) that Speak filed the
(dismissed) charge, or the day thereafter (12 April)
would appear to be immaterial. Once again the employ-
ees who reported for work were told there was no work
for them that day. The attendant circumstance that the
employees on this occasion were also told to stay off the
Employer's property is not a reasonable equivalent, in
my view, of a clear or constructive notice that the Em-
ployer did not intend to reinstate any of them at all in
the future, nor of the reason, viz, the Employer's earlier
permanent subcontract of their unit positions away to
others. At that time there were any number of other in-
ferences possible, e.g., that their positions had been filled
by employees hired as replacements, that the contracts of
(temporary) contractors by their terms precluded their
immediate return for a reasonable period (e.g., as argu-
ably here for 30 days), and that there was no work for
them that day and they would be called when there was,
and/or because of certain circumstances of the prior
picketing conduct by employees certain of their number
were no longer welcome on the Employer's premises.
But the diapositive fact here is that the Employer elected
to tell the employees nothing more definitive than that
there was no work that day.
The fact that the Union filed charge(s) on 11 April,
and that that charge was subsequently dismissed does not
establish the fact that the Union had actual or construc-
tive knowledge of the Employer's earlier permanent sub-
contracting. The dismissed charge (in evidence) does not
lend support to the Employer's position. It was incum-
bent on the Employer to establish the fact, and the con-
nection, if otherwise. The dismissal letter itself affords no
such support and, if anything, in addressing the Employ-
er's post-9 April conduct, indicates the contrary. The
fact of a Speak's subsequent inquiry on 3 June, for the
first time (on this record), not only raises inquiry on the
status of the Employer's subcontracting on unit work,
but confirms it. The 10 June 1985 nonresponsive answer
of Respondent to Speak's inquiry was not only erroneous
in stated base, but also it was not subsequently clarified.
Had Speak's inquiry even then been answered candidly,
Speak and the Union would have been put on notice
with time to act in several directions within the statutory
imperative period.
There is thus evidentiary warrant on this record to
conclude by Respondent nonresponsiveness, and/or its
continued nonresponse to Speak's inquiry, notice of the
Employer's February-March subcontracting that had af-
fected all bargaining unit work, was in fact being con-
sciously withheld by the Employer from the Union. In
short, the evidence warrants the conclusion that the Em-
ployer, in substance and effect, was engaged in an active
concealment of the operative facts. Moreover, Union At-
torney LeVota on 16 July 1985, in a letter addressed to
Schneller Jr., at Amato's request, but with copy to
Amato, inter alia, requested related specific information
on the employment status of the employees under Mis-
souri law. Though Schneller Jr., in letter of 22 July, as-
sured LeVota that the injury would be handled within
10 days, it was not. Had the Union's attorney even then
been notified of the permanent subcontracting accom-
plished by the Employer commencing on 20 February
1985, the Union would have had time to file a charge
within 6 months of the permanent subcontracting event
LAND AIR DELIVERY 1155
if it had determined it to be then advisable , as it likely
would have.
Ironically , the only arguable notice the Company ever
gave the Union as to its prior subcontracting in this
entire case presentment arises out of Union Attorney Le-
Vota's second letter , effectively forcing same, and
wherein the Union both advised the Employer of its own
current understanding that neither Union nor employees
had ever been informed that the employees had been
permanently replaced , and in which the Union also ad-
vised the Employer of all the Union 's own collected in-
formations and beliefs on observed new individuals
working on unit work , and specifically asking the Em-
ployer for confirmation on their and unit employees
actual status . However, and first with regard to the re-
peated union request for the Employer 's report on the
employment status of unit employees who had previous-
ly struck, but since 9 April 1985 had offered to return
unconditionally , the Employer only declined to "label"
them. Then purporting to otherwise state the facts, the
Employer related only that " [t]he Company hired some
additional employees as replacements and continued to
conduct business as it formerly did prior to the strike."
With regard to the members ' (employees') unconditional
offer of 9 April, the Employer again responded only that
it had advised the employees (and the Union) that there
were no positions available . The Employer still did not
definitively advise the Union that all the unit work
and/or positions had been earlier permanently contracted
out.
However , the Employer did do more than the General
Counsel has highlighted . Thus, the Employer did advise
the Union that two of the individuals who were subject
of the Union 's inquiry were in fact Land Air independ-
ent contractors (Fowler and Pope ), the rest are employ-
ees of contractors; all of them but Terry McDonald asso-
ciated with contractors prior to 9 April; and McDonald
was hired by a contractor after 9 April to replace a
driver previously employed by the contractor before 9
April 1985, but who had quit . Significantly , however, the
Employer also specifically denied it had dismissed any
(striking) employees , adding only that it did not know
when it would have work for them . It is no moment for
wonderment by me that under these circumstances the
Union , on receipt of the Employer 's assurance that unit
employees had not been terminated, had reasonably fur-
ther concluded that the Employer was, inter alia, im-
properly and unlawfully continuing the employment
and/or use of (temporary) subcontractors, although re-
fusing to reinstate the former striking unit employees
after their unconditional offer to return. This is precisely
the subject of the Union's original charge, under these
circumstances , timely filed on 8 October 1985.
Even if I were to construe the Employer 's 22 August
information as to contractors employed prior to 9 April
continuing in employment as serving as unequivocal
notice to the Union that the Employer had entered per-
manent subcontracts , and also had permanently subcon-
tracted all unit positions (which , on evidence of record I
do not), that information was not imparted by the Em-
ployer to the Union before letter dated 22 August 1986.
Although the record does not definitively reflect when
the Union received the 22 August 1985 letter, it is no less
clear even that (at best) arguably constructive notice was
written within 10(b) period to 20 February 1986 amend-
ed charge , filing , and service.
There is in fact no evidence that I have been able to
discern in this record , wherein the Employer before this
charge was filed had informed the Union simply, clearly,
candidly, or unequivocally that it had in fact permanent-
ly subcontracted all unit positions to others. The re-
quired adequate notice to start the tolling of the statute is
not a matter of "hare and hound" decipher play, but of
required unequivocal notice . To allow for less is to nec-
essarily weaken collective bargaining . Moreover , prior to
its 8 October charge filing, the Union surely would
never have surmised an elimination of the unit positions
from the Employer's interim conduct in proceeding with
a probe of the Union for mutual agreeable dates for ne-
gotiations , or from the Employer's solicitation of a union
proposal for a new contract . If some of the evidence
above would tend to indicate the Employer was travel-
ing on belief that its use of all independent contractors
were as employee replacements, the short answer is that
the Employer has not so defended the matter and, in any
event, under established Board precedent would have
been proceeding in error. Moreover , the same would but
expose, on the facts of record , that the switch to claim of
prior permanent subcontract was an afterthought, and
certainly never timely noticed to the Union to begin toll
of the statute . The circumstance that the subcontract of
unit positions was to several contractors,'rather than one,
does not alter the substantive effect of the complete
elimination of all unit positions.
It is apparent to me from all the foregoing consider-
ations, and I now accordingly conclude and find, that
the Employer never gave the Union or the striking unit
employees the required clear and unequivocal notice of
the Employer's intent to, or the Employer's actual per-
manent subcontract of, unit positions . Neither do I find
that the Union had actual or constructive notice of same
from its observations and gathering of information and
beliefs in light of its inquiries and the Employer response
thereto and the Employer 's conduct otherwise. Accord-
ingly, I conclude the Employer's 10(b) arguments to be
without merit.
Having found that there never was the required prior
notice from the Employer to the Union that the Employ-
er had permanently subcontracted unit positions, and
concluded that both charge and amended charge were
timely filed and served, the case need not rest on the
General Counsel's alternative argument that the amended
(8(a)(5)) charge allegations are "virtually inseparable"
from that timely alleged in the original (8(a)(3) and (1))
charge filed on 8 October 1985 and, accordingly, I need
not reach that issue.
It is concluded and found that in the period commenc-
ing 20 February and ending 1 March 1985, the Employ-
er's permanently subcontracted unit positions to others,
without prior notice to the Union and without affording
the exclusive representative of unit employees an oppor-
tunity to negotiate and bargain thereon, thus acted uni-
laterally and in violation of Section 8(a)(5) and (1) of the
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act. It is further concluded and found that by refusing
to reinstate the formerly striking employees, on their un-
conditional offer to return to work, thus from on and
after 9 April 1985, the Employer has declined to do so
for an improper reason and thus in substance and effect
has discriminated against unit employees for having en-
gaged in a prior strike, in violation of Section 8(a)(3) and
(1) of the Act.
III. PART TWO
A. The Alleged Employee Misconduct
1. The contentions and authorities presented
The Respondent contends there is ample evidence of
vandalism, violence, threats, and general picket line mis-
conduct, some of which is directly attributable to specif-
ic employees. The Employer argues that other evidence
not attributable to any specific employee nevertheless
shows a pattern and scheme of violence and misconduct
on the part of the Union. At the hearing the Employer
reserved argument all employees engaged in misconduct.
The Employer in its brief appears to have continued that
general assertion reinstatement is inappropriate and im-
possible, and specifically contends the activity of striking
employees Joe Fincher, Lindsay Cundiff William Green-
field, and Walter Gunn was violent, criminal in nature,
and impinged on the rights of others. According to the
Employer, it consisted of intentional damage to property,
threats, and attempted intimidation of others, activities
that placed others in immediate personal danger, and the
aiding and abetting of others in such activities. If so to
be determined, the Employer correctly urges under the
applicable Board standards of Clear Pine Mouldings, 268
NLRB 1044 (1984), such conduct clearly disqualifies
those four individuals from any eligibility for reinstate-
ment. The Employer in brief claimed preservation of
right to argue, and thus I have construed to have further
argued that the Employer had no obligation to continue
to bargain with the Union because, by virtue of the
Union's unlawful conduct, the Union stripped itself of
representative status.
The General Counsel observes that Respondent at no
time discharged any employee for misconduct, and that
it (as of hearing) has not indicated specifically which em-
ployees it is contending it failed to recall on 9 April be-
cause of strike misconduct. The General Counsel ac-
knowledges Clear Pine Mouldings, supra, is the applicable
standard, but argues refinedly that all strikers are not be
condemned by the misconduct of a few nor do striking
employees forfeit their right to reinstatement by failing
to disassociate themselves from the misconduct of others
unless they have authorized or ratified the conduct of
the participants, Roadway Express, Inc., 250 NLRB 393
(1980), enf. denied on other grounds 647 F.2d 415 (4th
Cir. 1981). The General Counsel additionally points out
correctly that the resumption of picketing in response to
Respondent's refusal to reinstate the strikers does not
nullify their unconditional offer to return to work, Wood-
lawn Hospital, 233 NLRB 782, 793 (1977), enf. denied in
part on other grounds and enfd. in part and remanded
596 F.2d 1330, 1333 (7th Cir. 1979). The General Coun-
sel otherwise notes that the burden is on Respondent to
establish that, at the time it refused reinstatement to unit
employees on 9 April 1985, it had a good-faith belief the
strikers who were denied reinstatement had engaged in
misconduct of such a serious character as to justify Re-
spondent in denying them their jobs, citing NLRB v.
Burnup & Sims, Inc., 379 U.S. 21 (1964), and further has
correctly noted that Section 8(a)(1) is violated, regardless
of the Employer's good-faith belief that misconduct oc-
curred, where it is shown the misconduct in fact never
occurred, National Steel Corp., 242 NLRB 294, 298
(1979).
The General Counsel thus contends that Respondent
has failed to meet its burden on 11 named employees, in-
cluding 4, Ken Harring, Jerry Koehn, Dave Thomas, and
Norman Vest, concerning whom the General Counsel
contends no evidence of any misconduct was ever pre-
sented. It would appear by excepting exclusion of two
employees (Joe Fincher and William Greenfield) that the
General Counsel has as much as conceded the Employer
was not obligated to offer reinstatement to two of the
four specifically named employees the Employer has
contended in brief it had no obligation to reinstate be-
cause of the nature of their unlawful conduct. The par-
ties have thus joined most direct and specific issue on re-
instatement rights of Lindsay Cundiff and Walter Gunn
because of their alleged misconduct. The basic test as
adopted in Clear Pine Mouldings, supra is "whether the
misconduct is such that, under the circumstances exist-
ing, it may reasonably tend to coerce or intimidate em-
ployees in the exercise of rights protected under the
Act."
2. The alleged incidents of misconduct
a. Joe Fincher, Dale Guyton, and Don Stevens
Land Air Supervisor Jerome M. Lynch testified that
on 13 November 1984, at 8 : 30 a.m. as Lynch was getting
ready to back a truck in the dock at Zantop at the Mu-
nicipal Airport, Joe Fincher stopped him and said, "Hey,
look, if this strike goes on for any length of time, there
will be some violence and some heads broken ." Fincher
did not testify . Michael J. Reynolds was employed by
Contractor Griffitts from October 1982 until March
1986. Reynolds also had occasion to drive to Zantop on
13 November 1984, and on arrival there at approximately
9:30 a .m. he observed Land Air employee Joe Fincher
picketing. Reynolds testified credibly , and without con-
tradiction , that on asking Fincher what was going on,
Fincher told Reynolds that they (Land Air employees)
were on strike, that it was not going to be like the last
one, and that if it went past a couple of days there would
be violence and trucks tore up, and that Reynolds had
better be careful. Reynolds also testified to another state-
ment made to him by Fincher to the effect that Reynolds
did not want to end up like Dick Griffitts. (The refer-
ence was to an occasion in the 1982 strike when Griffitts
was found unconscious at a pickup.) Reynolds could not
recall the date.
Lynch testified that on 15 November 1984, before he
went into a (VFW building) stop in Kansas City, Land
LAND AIR DELIVERY 1157
Air (striking) employee Ron Stevens was there sitting in
his vehicle. Stevens, on that occasion, told Lynch,
"Look, there's going to be some problems. I don't want
to get involved." According to Lynch, Stevens also said,
"Fincher and Guyton is [sic] going to meet you down at
Koch . There's going to be some shit and I don't want to
be around so I'm not going to be around ." Lynch further
testified that at 4 p.m. on 15 November 1984 (the same
day) on occasion when Supervisor Lynch was about to
leave after making a delivery at the VFW building, he
noticed Joe Fincher and Dale Guyton in Fincher's car,
side by side Lynch's vehicle . Lynch testified credibly
that Fincer, in the driver's seat, then raised a wooden-
handled 8 - to 110-inch ice pick and said , "I'm going to
shove this up your ass." Lynch reported the incident im-
mediately to the Land Air dispatcher, and at his next
stop called the threat in to the Kansas City, Missouri
police. On cross-examination Lynch readily acknowl-
edged that Guyton had said nothing during the incident.
The General Counsel further established that in the
police report Lynch filed on the ice pick incident that
Lynch had not then mentioned Guyton. Lynch also
(eventually) acknowledged that he had subsequently at-
tended a court proceeding on the ice pick incident and
that it involved only Fincher. Guyton denied that he was
present at this incident . The Employer has offered no
other supporting evidence of Guyton's presence.
Although I find Lynch to have been a generally reli-
able witness , in the instance of Lynch's recalled presence
of Guyton at the ice pick incident , I entertain sufficient
doubt arising from the above inconsistencies to be un-
willing to conclude on the status of the above evidence
offering that Guyton was present with Fincher on that
occasion, particularly with Guyton's unequivocal and
equally apparent credible denial . Nonetheless , I credit
Lynch as to his previous conversation with Stevens.
(Stevens ' denial did not sufficiently address particulars.)
There was (I find) no confrontation of Fincher (or
Guyton) later that day at the Koch stop, where Stevens
had understood, and had forewarned Lynch the problem
was to occur , and as to which problem Stevens wanted
no part, and from which he disassociated himself. Lynch
testified that he did not report Stevens' statement to the
police because he (understandably) did not believe Ste-
vens was involved with the incident. However Stevens'
recount to Lynch of Fincher and Guyton prospectively
meeting Lynch at the Koch stop (which did not occur)
may well account for a Lynch present misrecollection of
Guyton's presence at other locations, as indicated by ear-
lier documentary recording of the incident without
Guyton present. In my view, Stevens, for his part in
conversing with Lynch, forwarned him of a problem, al-
though at the same time wholly disavowing it, and disas-
sociating himself from it, did not engage in misconduct.
Lynch has described a later driving incident. On this
occasion Lynch had a security person with him. The in-
cident involved nonemployee, but union member, David
Evans, who was accompanied by Fincher. Lynch testi-
fied that Evans drove his Monte Carlo and attempted to
broadside Lynch on an apparently unspecified date.
Lynch reported this incident to the police in connection
with a later Monte Carlo (blocking) incident involving
another driver. In this instance , however, the police ar-
rested both Evans and Lynch, Lynch testifying that it
was because it was one person 's word against the other.
(Apparently it was two against two. Otherwise there is
no explanation offered as to the apparent noninvolve-
ment of the security person as a witness for Lynch or
Fincher as witness for Evans.) In any event Lynch testi-
fied that neither he nor Evans pressed charges on this in-
cident.
Lynch has also testified to his discovery of four ice
picks, in the tires of his Land Air vehicle after a stop on
an unidentified day and , also, to similar damage to his
vehicle, along with smashed windshield damage, at his
home , in early December 1984. In neither incident did
Lynch have any knowledge of the perpetrator(s).
Jimmy McDonnell was employed by Lynch and drove
Lynch Delivery's one vehicle. McDonnell testified that
on 4 December 1984, a red and silver Chevrolet truck
pulled up behind him while McDonnell was waiting at a
stop in Kansas City "on standby." Fincher drove the car
that was owned by Lindsay Cundiff. McDonnell testified
that Evans and another striking employee were riding
with Fincher. McDonnell confirmed it was not Cundiff.
They got out of the vehicle and began picketing
McDonnell's vehicle. McDonnell relates that Fincher,
after signaling McDonnell to roll down his window,
asked McDonnel why he did not get out of the truck.
McDonnell did not reply. Fincher bent the rear (or side)
view mirror down, without damage. McDonnell radioed
the Land Air dispatcher to call the police. The police ar-
rived and warned Fincher and the others about tamper-
ing with McDonnell's vehicle.
McDonnell then received a pickup call. After arrival
at the stop , making the pickup and placing it in the van,
McDonnell got in the van. At this time McDonnell's
father was with him in the van. As soon as McDonnell
started up the van, an (unidentified) projectile shattered
the back window of the van and left a small hole in the
back of the front passenger seat. McDonnell quickly
turned around and saw Evans run into an alley that
McDonnell knew to be an "L-shaped" alley. McDonnell
drove his van to the other end of the alley, arriving in
time to see Fincher pull out, and with Evans as passen-
ger. McDonnell confirmed Cundiff was not in the vehi-
cle.
James Ellis was employed by Land Air as a driver
from 20 November 1984 to mid-1985 when he became a
dock supervisor. Ellis relates that on 10 December 1984
he drove a truck to a stop. Ellis saw three individuals
walk to the truck. One hit a door, and Ellis saw Fincher
hit a tire. Ellis ran around the truck, and he observed
Fincher walk to an alley and throw an ice pick. Ellis
called the police and, when they arrived, Ellis showed
the police the hole in the tire, and he then directed the
police to the ice pick. Ellis (and McDonnell) were sum-
moned to criminal proceedings against Fincher. Ellis tes-
tified that Fincher pled guilty, and the Employer pre-
sented in evidence confirming certificate of the Sixteenth
Judicial Circuit, Kansas City Municipal Division.
On the same day, 10 December 1984, McDonnell was
driving with security rider Gary Genova. A Chevrolet
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"blazer," belonging to Stevens followed them . In the car
were Fincher, Evans, and an unidentified individual.
McDonnell and Genova got out of their vehicle, as did
Fincher and the others . McDonnell went into the stop
(Casey Southern) and brought the freight back out.
McDonnell observed Genova talking to the three indi-
viduals . As McDonnell approached Genova, Genova re-
quested that he call the police . McDonnell did and,
when they arrived, the police arrested the three men in
the Chevy "blazer." McDonnell however did not ob-
serve the incident , and Genova did not testify.
It cannot be gainsaid that there is sufficient evidence
presented that Fincher engaged in misconduct disqualify-
ing his reinstatement , based on Fincher 's threats of gen-
eral violence to Lynch and Reynolds on 13 November
1984; threat of personal injury to Lynch on 15 Novem-
ber 1984 ; veiled threat of physical harm to Reynolds of
the same nature as Griffitts in prior strike ; and Fincher's
personal involvement in ice pick damage to Ellis' truck
tire . It is so found . In contrast there is in my view insuf-
ficient evidence presented as to any misconduct sufficient
to disquality either Dale Guyton or Don Stevens.
b. William Greenfield
Although there is some conflict as to date, it is clear
and I fmd that the following incident occurred on Ellis'
first day of employment, 20 November 1984. Ellis other-
wise testified credibly that he was followed by William
Greenfield and another individual to a furniture store
where Ellis delivered some mattresses at the dock. As
Ellis came out of a dock door and walked to the front of
the truck he heard air escaping from the tires of the
truck, and he observed Greenfield getting back into his
orange truck . On inspection of the truck, Ellis discov-
ered three tires had been vandalized . In his testimony,
Ellis evidenced difficulty initially in remembering Green-
field's name, and on cross -examination he also acknowl-
edged that the name had been later supplied to him by
the dispatcher after Ellis had described the man he saw
getting back into the orange truck.
Ellis also testified that on 17 December 1984, Green-
field and another person, whose name Ellis did not
know, were again following his truck . Greenfield was
driving the truck , and Tom Pope accompanied Ellis as
security rider . When Ellis stopped at an intersection he
observed the other person accompanying Greenfield get
out of the truck behind. Ellis, who had previously had
his truck padlocked, immediately got out of his own
truck and ran to the back. Ellis found a padlock had
been placed on the back door . Not having a key to this
padlock, Ellis had to get the lock cut off and, resultingly,
it delayed his deliveries.
Ellis testified that he was summoned, and did testify
on 3 September 1985 in criminal proceedings brought
against Greenfield . On that occasion Ellis testified about
the furniture store incident involving damage to three
tires . Respondent has also placed in evidence records of
a conviction by a jury in the District Court of Johnson
County, Kansas Criminal Department . The conviction
was of criminal damage in an amount (finally) of less
than $150 , a Class A misdemeanor . (Speak recalled this
conviction as one on appeal. The Employer introduced
records showing there was a motion for a new trial that
was denied . There is no other record evidence presented
of an appeal .) The sentence imposed was a fine of $1000,
and Greenfield was placed on bench probation for a
year . Greenfield did not testify in this proceeding. It is
apparent from the above furniture store incident (alone)
that the Employer had sufficient grounds to conclude
that Greenfield is disqualified from reinstatement by
virtue of his misconduct in connection with damage to
property at the furniture store.
c. Lindsay Cundiff
It appears that the major dispute of fact, or at least the
most difficult for resolution in this area , occurs in rela-
tion to Cundiff and his personal responsibility in certain
incidents . Schneller Jr. testified that at 8 :30 a.m., on 13
November 1984, the first day of the strike, he left the
dock to run downtown deliveries, and was followed by a
rust-colored Monte Carlo (belonging to Evans). Striking
employee Lindsay Cundiff and nonemployee David
Evans were in the Monte Carlo car . Cundiff picketed
Schneller's vehicle at Schneller 's first stop, but could not
do so on the second stop because Schneller had parked
the car inside the customer 's property . Schneller's third
stop was at an office building . Schneller got out of his
van to make a delivery, locking the vehicle . Schneller
crossed the street , and began walking down a 70-foot
walkway to the entrance of the office building . Accord-
ing to Schneller, about halfway down the walkway he
looked back over his shoulder and observed Cundiff,
holding a picket sign , place a leg on the van 's front
bumper . Prior to entering the building Schneller next ob-
served Evans go to the right rear tire of the vehicle, and
bend over for a couple of seconds , and then go to the
front tire and bend over for a couple of seconds.
Schneller observed Cundiff and Evans then walk back to
their vehicle. Schneller ran back across the street, but by
the time he reached the van , Cundiff and Evans had left.
Schneller then observed the two tires at which Evans
had bent over had holes in their sides and were flat.
Schneller called the police. Schneller testified that the
only thing he knew is that the police went up to the
picket line at Emery to investigate . Schneller did not
know the result , but felt it had to do with his word
against their word.
Cundiff testified that he had never met Evans, and that
Speak assigned Evans to him to help with Cundiff's pick-
eting on the first day. Evans was to drive , and Cundiff
picket . Cundiff confirmed that he drove with Evans in
Evans' car (a Monte Carlo), and that they had followed
Schneller's van. However, Cundiff recalled they fol-
lowed Schneller through about 10 stops. Cundiff related
that it was about 10:15 a.m . (though he was unsure of the
exact time) that they were at the (office building) stop in
Kansas City , Missouri . Cundiff confirmed that he got out
and walked to the front of the van, but asserts he stood 6
feet in front as he was supposed to do, and he displayed
the picket sign, while facing the four lane street, and he
could observe Schneller . According to Cundiff,
Schneller had taken some envelopes and crossed the
street, and Cundiff observed Schneller go inside the
LAND AIR DELIVERY 1159
building. (On cross-examination Cundiff also denied that
Schneller had looked back.) Evans, whose practice had
been to stay in the car, this time had gotten out of the
car, but Cundiff testified that to his knowledge Evans
did not do anything. Cundiff recounts that Evans stood
on the sidewalk, along side the van. Evans did not talk
to Cundiff at the time. Cundiff picketed roughly 5-6
minutes. According to Cundiff, Evans then said, "Let's
go back up to the picket line." On cross-examination,
Cundiff added that Evans said, "Let's go back and
follow another truck. We're not doing any good here."
Cundiff testified that Schneller was still in the building at
the time they left. Cundiff denied that he saw Evans
bend over at any time, denied that he heard air escaping
from the tires, denied the tires were flat when he left,
and denied that he saw any damage done to the van.
Cundiff specifically denied seeing Evans do any damage
to the van. They got back in the car, and they went back
up to the picket line. Cundiff confirmed he was ques-
tioned by the police concerning the office building loca-
tion visited on 13 November 1984, According to Cundiff,
the police said there had been an incident reported of
some flat tires on a van in the 2300 block of Grand (the
office building); that he was questioned in front of
Evans, and he told the police that he did not know any-
thing about any flat tires; that the police took his vehicle
(and driver) license numbers and called them in and that
was all; and that to his knowledge, the police did not
make out a report.
Cundiff testified that he did not go out with Evans
again on ambulatory picketing . He asserts he was never
assigned to Evans again , and it was not that he refused.
Cundiff otherwise testified that he did loan his own per-
sonal car (a red Chevrolet pickup), one time, to Evans in
December 1984, because neither of the cars of Evans nor
Fincher was running very good that day (and explaining
on cross-examination that he was on picket line duty at
Emery that day). Cundiff also testified that he did not
know who they were going to follow, or what their
plans were for that day, except, on cross-examination he
readily acknowledged he was aware that they would be
following cars. (Fincher was driving Cundiff's car at the
time of the McDonnell projectile-window smash inci-
dent, supra.) On cross-examination Cundiff denied that
Evans had ever displayed an ice pick to him. Cundiff
also testified that nothing was said when they returned
his car to him, nor was there a police investigation of an
incident that day.
IV. ANLAYSIS
As I have noted earlier, Schneller Jr. did not impress
me as exhibiting complete candor in his testimony on the
subject of his knowledge of drivers of contractors that
Land Air engaged, and for whose services to Land Air,
Schneller regularly made payment. On the other hand, it
is equally clear to me that Schneller did not make up this
two-tire damage incident at the office building out of
whole cloth. Cundiff has confirmed there was a police
inquiry made on the incident the same day. That such
damage was done is not the issue. The direct conflict is
over whether Schneller observed Evans' and Cundiff's
actions or went inside the building, in which event it
would then be indicated that he returned to fmd the
damage to the vehicle that he knew Cundiff and Evans
had followed and picketed. In the final analysis, I simply
do not believe that Schneller made up an observation of
Evans and Cundiff, for if he was disposed to do so, it
seems to me it would appear far more likely that he
would have attributed the perpetration to Cundiff or at
least both rather than only to nonemployee Evans.
Moreover, I cannot overlook the plausibility of a pros-
ecutorial consideration of effect of a two-against-one in-
terest version.
This was not the only conflict between Cundiff and
Schneller Jr. Recall Schneller's version of Cundiff;s June
calls , with asserted Cundiff statements made of his, and
90 percent of the men's sole interest in getting the money
due, and noninterest in return of himself or others to
work, excepting Fincher, concerning whom Cundiff then
reportedly said (plausibly on this record) that none of the
employees wanted anything to do. Moreover, Schneller's
version appears the more plausible, following as it did
the first charge dismissal, and it is congruous as well
with the nature of the Employer's evasive response to
Speak of the same date or failure to clarify thereafter.
(The later pursuit of negotiations by the Employer itself
is not incongruous with an interim bargaining approach
by the Union and the resumed striking.) Cundiff's recol-
lection of Schneller's assertion at that time that the
checks were in the hands of the attorneys in contrast ap-
pears less convincing, it being apparent that both sides
were still in disagreement over amounts due. In any
event, I fmd Schneller's version is the more generally re-
liable.
There is more to be considered-significantly the
change in statement attributed to Evans for their depar-
ture. Then too there is the timing of the abrupt breakoff
of picketing, at the very location where damage is done,
with an explanation offered, but which is then shown to
be without its own strain (acknowledged awareness of
further stops to be made by Schneller, and indefiniteness
of further patrol opportunity that day), which fosters less
persuasiveness. Finally, I simply had a general impres-
sion from observation of Cundiff on the stand that while
he was caught up in events that may well not have been
of his own initiative; he was struggling with his explana-
tion of circumstances that he knew would indicate other-
wise, but did so without embracing the one possibly
saving feature of a full and complete candor in these
matters. On the credible evidence of record before me I
cannot say that the evidence that the Employer has pre-
sented was not substantial, believable, and clearly suffi-
cient for the Employer to have concluded in good faith
that it had no obligation to reinstate Cundiff beause of an
apparent willing participation by him, if not before, then
after, the fact that indicated Evans' damage to an em-
ployer van. Evans did not testify. Contrary to the Gener-
al Counsel, police report existence or nonexistence was
as available to the General Counsel to support Cundiff as
to support the Employer. I decline to draw adverse in-
ference in those circumstances, particularly with Cun-
diff's acknowledgment the police had made an inquiry on
property damage. Moreover with Employee's awareness
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of that police investigation at the picket line, and of its
subsequent awareness of Cundiff's loan of his personal
car for use by the same Evans, and by Fincher whom
the Employer knew beyond question had previously en-
gaged, and who did use the car in engagement of addi-
tional impropriety, I cannot conclude the Employer was
not reasonable in view that such was assistance and/or
indicative of Cundiff's approval of prior wrongful con-
duct in ambulatory picketing at which Cundiff was
present. In short I am led to the conclusion that the Em-
ployer on the one hand has established "reasonable
cause" for its action , and that the General Counsel's evi-
dence offered thereon simply has not convinced me of
Cundiff's actual noninvolvement or clear disavowal. Cf.
Roadway Express, 250 NLRB at 394; and on respective
burdens National Steel Corp., 242 NLRB at 298. Though
I am not without reservation in the matter , it is conclud-
ed and found on weight of evidence that the Employer
had no obligation to reinstate Lindsay Cundiff on or
after April 1985.
A. Walter Gunn and Walt Malinowski
David Nelson, employed by contractor Rinehart, was
assigned to run striking employee Walter Gunn's route.
Nelson testified that in the early days of the strike Gunn
followed him. On other occasion he testified that they
did not have to follow him all the time , they knew
where he was going. Although Nelson described an
early radiator damage incident, there is no evidence of
union or union agent causation or involvement in this in-
cident, let alone specifically by Gunn. Nelson described
another incident initially placed in November but later
early December 1984. Nelson at this time was accompa-
nied by a female security rider, Leslie Ober. Nelson was
to make a delivery at a Johnson Drive building. Nelson
relates he was being followed by Gunn (and another
person) in Gunn's vehicle and also by a black S-10
Blazer . Both pulled up behind him at his stop. Nelson in-
structed his security driver to keep his vehicle moving,
and to drive around, as he made the delivery. Nelson ob-
served the security driver pull out. On his return, Nelson
testified (initially) that he observed his security driver
had been stopped, that one vehicle was in front, but (in-
consistently with a blockage) that they both were just
leaving, thus indicating the vehicle in the rear had pas-
sage way. As he approached his vehicle he found one
tire was losing air rapidly from a puncture in the side
wall. The security rider, Ober, did not testify. Nelson
later at one point appeared to recall that Gunn's vehicle
was in front and leaving when he came out, but on later
occasion asserted that it was the Blazer in front . This of-
fered evidence does not convince me that Gunn was re-
sponsible either for a passage blockage or for any tire
damage.
Mike Reynolds, employed by contractor Griffitts testi-
fied that one night at 6-7 p.m. after leaving the Land Air
facility an Escort wagon followed "right on my bumper"
while Reynolds drove 1-29 at 70 miles per hour. Reyn-
olds could not identify the driver, but he identified Gunn
on the passenger side . Reynolds testified that the car on
one occasion passed him and swerved at him a couple,
or three or four times, trying to run him off the side of
the road. Reynolds also recounts that during the same
event the car pulled beside his vehicle and Gunn mo-
tioned for Nelson to roll down his window, which
Nelson did. Gunn then said to Nelson (who is not black),
"[P]ull over, nigger , we got something for you. We're
going to give you something." Reynolds testified he took
this as a threat and "just sped away." Gunn did not testi-
fy. It requires no great analysis to conclude that a high
speed chase of one alone at night, coupled with repeated
reckless vehicle approach, is likely to be at best intimi-
dating, and visitation of the statement attributed uncon-
testedly on this record to Gunn on anyone, but pejora-
tive in those circumstances. The Employer had no obli-
gation to reinstate Gunn. I continue with the Gunn inci-
dent only as it may reflect on others.
McDonnell testified that at some point during the
strike he had a conversation with Gunn at the picket line
at the Emery facility. According to McDonnell, Gunn
pulled him over and told McDonnell, "I'd better watch
it, that they are going to get me." Striker Malinowski
was present, but off in a parked car. McDonnell testified
(essentially) that Gunn made the statement in a normal
tone of voice given the road conditions. More signifi-
cantly McDonnell testified no one followed him away
from the picket line on this occasion. There is, in my
view, a complete lack of evidence that striker (and stew-
ard) Malinowski was aware of or otherwise involved in
any way with this statement or its reasonable coercive
portent.
Reynolds also testified as to an occasion when all four
tires of his vehicle were flattened at his home. Because
he knew Fincher was aware of the location of his home,
Reynolds suspected Fincher. In any event, Reynolds
went to the picket line and found Malinowski there.
Reynolds told Malinowski, "My tires have been flattened
and I think it was Joe Fincher." Reynolds further told
Malinowski, that if he wanted to mess with me or my
truck at work, that is one thing, but stay away from my
house where my wife and child were. Malinowski made
no response to either of Reynolds' comments.
Reynolds testified that he picked up nails in his tires
while driving the road entrance to Emery, and (overall)
had to have 10-12 flats fixed. Reynolds has testified that
there was an occasion when he observed about 20 to 30
3-inch roofing nails in and across the driveway at the
Emery facility. Reynolds stopped to pick up the nails.
Malinowski was present, beside the driveway, leaning
against his car. On that occasion Malinowski walked
over and said to Reynolds that was a present from Sloan.
Reynolds initially identified Sloan as a Land Air driver,
but then agreed he was a contractor.
Speak has testified that he did very little ambulatory
picketing; that he was at the picket line almost every day
for (at least) the first few weeks, but not every day; that
he had no knowledge of nails in tires of Land Air trucks;
but that he had knowledge of the presence of roofing
nails where the pickets regularly parked their cars; and
that on two or three occasions he had personally had to
fix flats, as did others. (Speak also denied any personal
knowledge of the Employer's vehicles being punctured
with ice picks, and windows shot out of trucks.) The
LAND AIR DELIVERY 1161
Employer and the General Counsel are at odds about a
statement of Speak's picket line control , purportedly
made by Speak to President Schneller in the prior strike.
I need not address that , as the Union has certain burdens
in running a present picket line, irrespective of such a
statement , if made in the past.
There is otherwise no evidence offered of Malinows-
ki's personal or direct involvement in any misconduct.
Specifically , there is no evidence of record that anyone
ever saw Malinowski place any nails in the roadway en-
trance to the Emery facility . There is no showing that
nails were in the entrance way on successive days. The
General Counsel argues that in the absence of evidence
that Malinowski placed nails in the driveway that day, or
evidence of Malinowski 's picket line involvement in
some pattern of presence of nails , in the driveway, it
cannot be assumed Malinowski was responsible for the
presence of nails in the roadway this particular day.
Though Malinowski did not testify , in general I agree
with the General Counsel's position . But see and com-
pare where inference is warranted of union responsibility
as where there is direct evidence of a (former) picket's
involvement in strewing nails in a driveway entrance,
and there has been a sufficient day-to -day pattern of
presence of nails in the entranceway near picketing area,
to make the union responsible, Avis Rent-A-Car Systems,
280 NLRB 580 fn . 3 (1986).
The only arguable issue otherwise is did Malinowski's
unsolicited (and uncontested) comment clearly reveal
previous awareness there were nails in the driveway that
day and, if so , is Malinowski then placed under some af-
firmative duty to himself have policed the area on this
day and removed them . I need not reach the latter issue
on the record evidence before me . Malinowski did not
make the comment until he approached Reynolds who
had already stopped to pick up the nails . Given the
record evidence of first notice by Reynolds, and as it
would appear unlikely Sloan, a contractor using the
driveway entrance , would place the nails there, I con-
clude the comment is more inferable as a smart remark
than inferable of Malinowsk 's prior knowledge and ap-
proval of nails being in the roadway . As noted, there is
no direct evidence that any union picket placed nails in
the entrance , and I will not speculate that Malinowski
did so on this occasion . Under these circumstances, this
comment as to source (as opposed to a clear admission of
the Union 's or the union agent's placement of nails in the
roadway) in my view was not serious enough miscon-
duct to warrant a forfeiture of Malinowski 's right to
return to employment as a lawful economic striker at the
conclusion of the strike . The Employer would appear in
brief not to have strenuously argued it was. In any event,
it is found it is not. Malinowski , I find, was entitled to
reinstatement.
B. Mike Carleton and John Farris
Reynolds had a conversation with Carleton on the
picket line in late November 1984 . Reynolds testified that
Carleton , who was a friend of his, was alone on the
picket line at the time . After Carleton asked Reynolds
how it was going , Carleton then told Reynolds, "I'd
better watch out because there were some people here
from the union hall and they didn't know one driver
from the other , whether I was driving in town or what,
and that I'd better be careful." Reynolds was an out-of-
town driver at the time . Reynolds testified that he did
not consider Carleton's statement was made to him in
order to threaten him. Carleton did not testify . There is
no other evidence indicative of any misconduct by Carle-
ton. This is a close question because the test is not
whether a given individual is actually coerced, but
whether under the total circumstances a statement or act
reasonably tends to coerce or to intimidate employees,
Richmond Recording Corp ., supra . These two individuals
were friends . There were no other employees in the im-
mediate area, as Carleton had come over to talk to
Reynolds privately . In my view Carleton's statement is
reasonably to be viewed as intended and understood as
privately informative , between friends , and not coercive.
The only evidence offered as to Farris is on an inci-
dent occurring well after 9 April 1985 , sometime in June,
but necessarily following the resumption of the picketing
that occurred on 22 June 1985 . On this occasion Reyn-
olds started a conversation at the picket line with Farris,
asking how it was going . Reynolds recalled Farris then
said , "Not too good . This is going to be your last two
weeks because we're going to break Land Air , so you'd
better enjoy you last two weeks ." The General Counsel
appropriately would have observed that no strike mis-
conduct had occurred for approximately 5 months. It is
concluded the above remark is not reasonably to be
viewed as coercive, but at best expression of "bravado"
opinion . The Employer has not established that Farris
engaged in any prior strike misconduct.
C. Ken Harring, Jerry Koehn, Dave Thomas, and
Norman Vest
In agreement with the General Counsel' s observations,
there appears to be no discernible evidence offered in
support of strike misconduct by these striking employees.
D. The Employer 's Proffered Evidence of Damage by
Unidentified Individuals
In each of the following incidents there was no evi-
dence produced of the actual perpetrator. Schneller Jr.
testified that a couple of days after the strike commenced
the Employer's tower transmitter was vandalized in that
both the powerline and the antenna line were cut, with
damage estimated at between $600 to $1000. (The Em-
ployer lost its communications for an undisclosed period
of time .) Nelson , employed by Contractor MKT, testified
to finding his (personal ) keys and certain work papers
missing from his truck for a period of time (and they re-
turned) on 14 November and, also, that he had two tires
and a radiator punctured in late November 1984.
McDonnell , employed by Lynch Delivery, testified that
he had one tire punctured , and one tire found with a nail
in it on 3 December 1984. Roger Williams, employed by
Contractor Thatcher, testified that he had two tires of
his vehicle punctured (as were two tires of Thatcher's
other vehicle parked nearby) on 10 December 1984. As
noted , Supervisor and Contractor Lynch found ice picks
in four tires of his (Land Air) vehicle one (unspecified)
1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
day; and he had similar tire damage and a smashed
window of his (own) vehicle, at his home, in early De-
cember. As noted, Reynolds, employed by Contractor
Griffitts, testified he had all four tires of his vehicle flat-
tened at his home on 10 December 1984. Schneller con-
firmed he never got a flat from nails in the driveway, but
testified several business associates and customers did.
None of the above, by evidence of the record, is directly
attributable to the Union or to any of its agents.
The Employer had insufficient evidence of employee
misconduct to support its failure to reinstate the follow-
ing named employees on their unconditional offer to
return to work.
Mike Carleton Walt Malinowski
John Farris Don (Ron) Stevens
Dale Guyton Dave Thomas
Ken Harring Norman Vest
Jerry Koehn
However, I have found on the basis of certain specific
individual incidents of employee misconduct above that
the Employer did not violate the Act in its failure to re-
instate the following named employees:
Lindsay Cundiff Walter Gunn
Joe Fincher Bill Greenfield
The Employer has established that these striking em-
ployees engaged in misconduct. The Union's identified
stewards were Farris and Malinowski and, if the Union
had regular picket captains otherwise, the fact does not
appear sufficiently clear of record. Speak, who was
present at the line frequently, is not contended to have
engaged in improper conduct. There is no direct evi-
dence that the Union or its authorized agents engaged in
specific unlawful conduct, let alone engaged in violent
tactics or irresponsible physical assaults . The misconduct
of employees, nonemployees, and anonymous individuals
does not call for application of principles of Laura Modes
Co., 144 NLRB 1592 (1962). The Board will not deprive
unit employees of their majority representative because
of the misconduct of a few employees. The misconduct
here determined to have occurred was in relation to 4 of
13 unit employees and such, in my view, did not rise to a
level warranting invoking Laura Modes sanction of the
bargaining representative of the remaining unit employ-
ees who did not engage in misconduct, Top Form Mills,
273 NLRB 1246 fn. 2 (1984).
CONCLUSIONS OF LAW
1. The Respondent, Land Air Delivery, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Teamsters Local 41, affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America is a labor organization within
the meaning of Section 2(5) of the Act.
3. The following employees of Respondent Employer
cgnstitutes an appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All truck drivers and warehousemen employed by
Land Air Delivery, Inc. at its delivery service lo-
cated at Kansas City, Missouri, but Excluding inde-
pendent contractors, office clerical employees,
guards, and supervisors as defined in the Act.
4. Since 14 December 1973 the above-named labor or-
ganization, Teamsters Local 41, has been the designated
exclusive representative of the employees in the aforesaid
appropriate unit described above in paragraph 3, for the
purpose of collective bargaining within the meaning of
Section 9(a) of the Act.
5. Respondent Employer and Teamsters Local 41 were
parties signatory and/or subject to the National Master
Freight Agreement, Over the Road and Local Cartage
Carriers with duration from 1 March 1982 through 31
March 1985.
6. On 13 November 1984 all Land Air employees in
the above appropriate unit represented by Teamsters
Local 41 commenced a lawful economic strike over cer-
tain grievances.
7. Respondent Employer thereupon continued to run
its air freight operations by employing independent con-
tractors, replacement employees, office staff, and/or su-
pervisors.
8. On 28 January 1985 Respondent Employer gave
timely notice to Teamsters Local 41 that it desired to
cancel and terminate the National Master Freight Agree-
ment, together with Centeral States Area Local Cartage
Supplemental Agreement , as of its termination date 31
March 1985 and additionally informed the Union that the
Employer would no longer be a member of any employ-
er association or any bargaining group in the negotiation
of a new contract and that it would not be bound by any
contract negotiated by an employer association.
9. In the period commencing 20 February, and ending
1 March 1985, and while all striking unit employees re-
mained on strike, the Respondent Employer permanently
subcontracted all unit positions to independent contrac-
tors, without any prior notice to the Union, and without
affording the Union as the exclusive collective-bargain-
ing representative of the above unit of employees an op-
portunity to negotiate and bargain thereon, thus acting
unilaterally, and in violation of Section 8(a)(5) and (1) of
the Act.
10. On 9 April 1985, and thereafter, Teamsters Local
41, on behalf of all employees, offered unconditionally to
return to employment with the Employer.
11. Since 9 April 1985 Respondent Employer failed
and refused, and has continued to fail and refuse, to rein-
state the following employees in the above unit because
they engage in a strike, in violation of Section 8(a)(3)
and (1) of the Act:
Mike Carleton Walt Malinowski
John Farris Don (Ron) Stevens
Dale Guyton Dave Thomas
Ken Harring Norman Vest
Jerry Koehn
12. Respondent has not in any other manner violated
the Act.
LAND AIR DELIVERY 1163
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
The General Counsel seeks a remedial order whereby
Respondent Employer shall reinstitute, honor, and apply
the terms of the collective-bargaining agreement that ex-
pired on 31 March 1985. I have round that Respondent
violated Section 8(a)(5) and (1) of the Act, by unilateral-
ly permanently subcontracting all the unit positions to in-
dependent contractors in the period 20 February through
1 March 1985, thus prior to the contract termination. It is
apparent therefrom that the Employer not only ceased
observing the wages and other terms and conditions of
the existing contract as early as 20 February 1985, but
also that it continued to cease observing the existing
wages, hours, and working conditions thereafter , e.g., on
termination of the contract on 31 March 1985. In that
regard, the Employer's notice of desire to, and an actual
termination of, the NMFA contract on 31 March 1985,
did not serve to then sanction Employer's earlier unilat-
eral change of the existing wages, hours, and working
conditions of unit employees by prior permanent subcon-
tract without bargaining with the Union. Rather, Re-
spondent continued at the end of the contract to be obli-
gated to maintain the existing ernployee wages, benefits,
hours, working conditions, and terms of employment,
pending a union (albeit on strike) refusal to meet and bar-
gain on the Employer 's request for change , a bargaining
impasse, a new agreement, or union waiver or union in-
terim consent to the Employer' s desired change(s). In
order to dissipate the effects of these unfair labor prac-
tices it is necessary to order a restoration of the status
quo ante, to the extent feasible, absent evidence of an
employer showing that to do so would impose an unfair
burden on Respondent. Cf. Fibreboard Corp. v. NLRB,
379 U.S. 203 at 215-216, and see fn. 10 at 216 (1964). On
the evidence the Employer has presented in this proceed-
ing, the Employer has not demonstrated that, though it
may still raise additional matters for consideration in the
compliance stage, if there are any, and it desires to do so.
PRC Recording Co., 280 NLRB 615 (1986), and see also
the discussion and Board and Court cases cited in the ad-
ministrative law judge's make-whole remedy of his deci-
sion.
In that regard, I have also found that Respondent sub-
sequently unlawfully failed to reinstate nine unit employ-
ees, on and after 9 April 1985, in violation of Section
8(a)(3) and (1) of the Act, but that it did not violate the
Act by its failure to reinstate four other unit employees.
Having had their unit positions unlawfully subcontracted
to others during the strike, those unit positions, for reme-
dial purposes, remained open. On the unconditional offer
to return to employment on 9 April, the nine employees
were entitled to an immediate ! reinstatement to their
former positions . I shall recommend that Respondent
Employer be ordered to resume its prior (appropriate)
unit employees' pickup and delivery service operations
to the extent now possible, and that it offer these nine
named employees unlawfully denied reinstatement and
immediate and full reinstatement to their former positions
of employment or, if any of those positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges,
and further that Respondent Employer make them whole
for any loss of pay, including fringe benefits, that they
may have suffered as a result of the Employer's failure to
timely reinstate them on their unconditional offer to
return to work on 9 April 1985. The backpay period
shall thus run from 9 April 1985, the day on which they
were unlawfully denied reinstatement , until Respondent's
offer to reinstatement shall occur (if it has not already
done so), less any net earnings during such period. Back-
pay and interest shall be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950);
and Florida Steel Corp., 231 NLRB 651 (1977).6
The General Counsel has additionally requested, on
the particular circumstances of this case, inter alia, that
Respondent be ordered: (1) to terminate any arrangement
for subcontracting of pickup and delivery work that did
not exist on 13 November 1984; (2) to cease and desist
from any increasing, in any manner, hours of work as-
signed to subcontractors, the number of subcontractors,
or employees of subcontractors; (3) that Respondent re-
store the unit to its numerical status prior to the strike,
namely, 13 full-time positions , dismissing subcontractors
and their employees if necessary; and (4) to employ unit
employees to perform all pickup and delivery work with
the exception that independent contractors and their em-
ployees under contract or employed 13 November 1984
may continue to perform unit work in the event work is
available after 13 unit positions are filled. It may be
noted that the independent contractors named here were
not made a party to this proceeding. I see no reason to
so restrict the size of the unit if there is to be full
remedy, without punitiveness visited on the Employer's
other operations.
In my view it will thus be sufficient remedy to pres-
ently order that Respondent Employer shall continue to
recognize and bargain with the Union as the exclusive
representative of the above-described unit of employees
that remains appropriate for collective-bargaining pur-
poses ; that Respondent Employer cease giving effect to
those certain independent contracts that it unilaterally
entered in the interim during contract duration in the
period 20 February through 1 March 1985, insofar as the
same have been engaged for use, and have performed as
permanent subcontractors of unit positions that union
represents; that Respondent reinstitute the wages, hours,
and working conditions of unit employees as they existed
prior to entry of the above independent contracts, and as
they existed as of termination of the NMFA contract on
31 March 1985, under existing Board precedent; that Re-
spondent be ordered not to refuse to bargain with the
Union as the exclusive representative of such unit em-
ployees; and that Respondent Employer be ordered not
to subcontract any unit positions without first bargaining
with the Union thereon. However, it seems to me that to
go presently beyond that is to needlessly speculate, e.g.,
See generally Isis Plumbing Co, 138 NLRB 716 (1962)
1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on whether the size of the unit work of employees has
stayed the same as it was prior to the strike of 13 No-
vember 1985, or has expanded, e.g., through normal
course of increased business operations, or has decreased
through same , or continued to have been affected ad-
versely though some nondiscriminatory exigency of the
strike itself (e.g., as in a potential permanent loss of one
work position related to General Motors' Leeds facility).
In my view these are all matters that may await any re-
quired addressment and refinement in the compliance
stage . Suffice it to presently make clear in the remedy
being provided that any increased use of contractors by
the Employer on unit work on and after 13 November
1985 was essentially as replacements to perform unit
work during the strike, and that the Employer's claimed
permanent subcontracts entered by the Employer in the
period 20 February through 1 March 1985 and which
have been found unlawful are not to be construed, for
remedy purposes, as effective permanent subcontracts. In
short unit positions were not thereby eliminated, but con-
tinued in existence and were unfilled by replacement em-
ployees as of 9 April 1985. I need not reach whether in
other circumstances, e.g., had the Employer only raised
claim here that the subcontracts were just temporary
(noting they were cancellable on 30 days' notice), the
same would have affected the start of backpay period in
some reasonable measure. Temporary subcontracting
with contractual duration beyond the strike's end was
not the Employer's claim in this proceeding . Respondent
Employer did not timely return to employment any em-
ployee that engaged in the strike. Neither did the Em-
ployer contend the individuals it entered into independ-
ent contracts with during the strike were not independ-
ent contractors but permanent employee replacements.
Finally, the General Counsel has also requested that
the Employer be ordered to maintain complete, accurate
records on a daily basis, establishing the number and
identity of all subcontractors performing any pickup and
delivery work, the number of hours of work each con-
tractor performed, the number and identity of each em-
ployee employed by a subcontractor to perform pickup
and delivery work, and the number of hours each paid
employee worked, and make these records available to
the Union on request. It is apparent from record evi-
dence presented here that the Employer does keep daily
records relating to the business it performs for its major
customer, but apparently has not kept such records in
that form on business performed for its other customers.
The records it has kept reflect the revenues generated by
contractors and contractor drivers and the number of
pickups and deliveries daily. However, it does appear
that since 13 November 1984, the Employer has not kept
track of hours worked (at least in the record form in evi-
dence), although the record does reveal that unit em-
ployees prior to the strike regularly punched a timeclock
(and see in that regard, art. 26, p. 62, NMFA, G.C. Exh.
9). Unit employee drivers were paid by the hour (see art.
60, Central States Local Cartage Supplemental Agree-
ment, p. 115, G.C. Exh. 9).
This case did not involve a complaint allegation that
the Respondent had failed to supply data relevant and
necessary for the Union's performance as exclusive bar-
gaining representative of unit employees . The issue the
General Counsel raises relates to backpay formulation.
Given the number of formulas available to the General
Counsel to formulate gross backpay, including projec-
tion, from an individual's past, or group payment experi-
ence, and given the specification nature of the Employ-
er's own burdens to contracontend on formula in that
regard as clearly set forth in the Board 's Rules and Reg-
ulations, Section 102.54 , it does not appear to me that the
Board 's normal requirements as to maintenance of ade-
quate records is not sufficient. Although the Respondent
Employer was not open and candid with the Union
about its permanent subcontracting, in my view it is
questionable whether that would be a sufficient basis
alone to call for imposition of the visitatorial order the
General Counsel also seeks. However, it does not stand
alone. First, it is observed that certain of the terms of the
terminated contract required, and under the remedial
order will require, recording of hours worked. It will
also be required that Respondent keep records of man-
hours expended in each contract, "arguably involving
bargaining unit work," ACF Industries v. NLRB, 596
F.2d 1344, 1353 (8th Cir. 1979). Beyond that , I shall de-
cline to recommend that the Employer be directed as to
how it shall run its business . However to assist the Gen-
eral Counsel based on any resulting possibility of com-
plexity developing in the computing of the make-whole
remedy here provided and, under all the facts of the
case, I shall recommend the Board provide for an appro-
priate visitatorial clause . Hilton Inn North, 279 NLRB 45
fn. 3 (1986).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed'
ORDER
The Respondent, Land Air Delivery, Inc., Kansas
City, Kansas, its officers, agents, successors , and assigns,
shall
1. Cease and desist from
(a) Unilaterally subcontracting unit work and/or unit
positions on a permanent basis, or otherwise unilaterally
changing the wages, hours, and other terms and condi-
tions of employment of unit employees , during a strike
or otherwise, without providing prior notice and oppor-
tunity to bargain to Teamsters Local 41, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America or any other
union the employees may select as their exclusive bar-
gaining representative.
(b) Refusing to reinstate the below -named former strik-
ing employees who have been determined here to have
not engaged in any disqualifying strike misconduct, and
to have been entitled to an immediate reinstatement on
their unconditional offer to return to employment on 9
April 1985:
' If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
LAND AIR DELIVERY 1165
Mike Carleton Walt Malinowski
John Farris Don (Ron) Stevens
Dale Guyton Dave Thomas
Ken Harring Norman Vest
Jerry Koehn
(c) 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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reinstate the pickup and delivery service previous-
ly performed by its unit employees represented by Team-
sters Local 41, offer to the above-named employees an
immediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their
seniority or other rights and privileges , and make them
whole for any loss of pay suffered by them, in the
manner set forth in the remedy section of the decision.
(b) Bargain collectively with Teamstes Local 41 as the
exclusive bargaining representative of Respondent's em-
ployees in the below-described appropriate unit with re-
spect to wages, hours, and other terms and conditions of
employment:
All truck drivers and warehousemen employed by
Land Air Delivery, Inc. at its delivery since located
at Kansas City, Missouri , but excluding independent
contractors, office clerical employees, guards, and
supervisors as defined in the Act.
(c) Restore and place in effect, retroactive to 1 April
1985, all the wages, hours, rates of pay, and all other
terms and conditions of employment of the above unit
employees (exception as may be allowed by law, union
security, checkoff, arbitration,8 and nonmandatory bar-
gaining subjects) as provided by and established in the
collective-bargaining agreement that terminated on 31
March 1985 , and maintain same until such time as the
Employer and Teamsters Local 41 bargain in good faith
to impasse , execute a new collective-bargaining agree-
ment, or the Union refuses to bargain or waives bargain-
ing.
(d) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its service facilities located in Kansas City,
Missouri, copies of the attached notice marked "Appen-
dix."9 Copies of the notice, on forms provided by the
Regional Director for Region 17, after being signed by
the Respondent 's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
8 But see potential of open question on certain aspects of arbitration
survivability, Ground Breakers, Inc, 280 NLRB 146 fn. 2 (1986).
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "'Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. For purposes of determin-
ing or securing compliance of this Order the Board or
any of its duly authorized representatives may obtain dis-
covery from the Respondent, its officers, agents, succes-
sors, or assigns, or any other person having knowledge
concerning any compliance matter , in the manner set
forth by the Federal Rules of Civil Procedure. Such dis-
covery shall be conducted under the supervision of the
United States court of appeals enforcing this order and
may be had on any matter reasonably relating to compli-
ance with this Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to bargain collectively
with Teamsters Local 41, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America by unilaterally subcontracting
unit work and/or unit positions on a permanent basis, or
otherwise unilaterally changing wages, hours, and other
terms and conditions of employment of employees in the
following described appropriate unit, during a strike or
otherwise, without providing prior notice and opportuni-
ty to bargain thereon to Teamsters Local 41. The appro-
priate unit for such collective-bargaining purposes is:
All truck drivers and warehousemen employed by
Land Air Delivery, Inc. at its delivery service lo-
cated at Kansas City, Missouri, but excluding inde-
pendent contractors, office clerical employees,
guards, and supervisors as defined in the Act.
WE WILL NOT unlawfully refuse to reinstate employees
who engage in a strike, and WE WILL offer the following
named employees immediate and full reinstatement to
their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges,
and WE WILL make them whole for any loss they may
have suffered. The employees are:
Mike Carleton Walt Malinowski
John Farris Don (Ron) Stevens
Dale Guyton Dave Thomas
Ken Harring Norman Vest
Jerry Koehn
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any of our employees in the ex-
1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ercise of the rights guaranteed them by Section 7 of the
Act.
WE WILL reinstate our pickup and delivery service as
previously performed by the above -named unit employ-
ees.
WE WILL restore and place in effect, retroactive to 1
April 1985, all the wages , hours, rates of pay, and all
other terms and conditions of employment of the above
unit employees (excepting as may be allowed by law,
union security, checkoff, arbitration, and nonmandatory
bargaining subjects) as provided by and established in the
collective-bargaining agreement that terminated on 31
March 1985 , and WE WILL maintain the same in effect
until such time as we and Teamsters Local 41 shall have
bargained in good faith to impasse, execute a new collec-
tive-bargaining agreement , or the Union refuses to bar-
gain or waives bargaining.
LAND AIR DELIVERY, INC.