Long Mile Rubber Co.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1337 (N.L.R.B. 1979)

LONG MILE RUBBER CO.
Long Mile Rubber Company, Subsidiary of Aegis Cor-
poration and Dallas General Drivers, Warehouse-
men & Helpers, Local Union No. 745. Case 16-
CA-8205
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On July 12, 1979, Administrative Law Judge Roger
B. Holmes issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Long
Mile Rubber Company, Subsidiary of Aegis Corpora-
tion, Dallas, Texas, its officers, agents, successors, and
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 The Administrative Law Judge found that Respondent violated Sec.
8(aXI) and (5) by unilaterally instituting changes in the dispatching system
which affected the driver's rate of pay, wages, and conditions of employ-
ment. The Administrative Law Judge provided a make-whole remedy, com-
mencing November 9, 1978, the day the unilateral change was announced.
and concluding December 18, 1978, the day Respondent and the Union
began negotiations on the terms of a collective-bargaining agreement, includ-
ing the subject matter of Respondent's unilateral change.
We shall modify the recommended Order by extending the backpay pe-
riod to March 5., 1979. Negotiations, including the subject matter of the
unilateral change, began December 18, 1978, but it was not until March 5,
1979, that Respondent and the Union reached agreement on the dispatching
system. On March 5. 1979, Respondent agreed that it would call the Union
when the company needed additional drivers. This concession served as the
quidpro quo for the Union's acceptance of the proposed dispatching system.
Effectuation of the Act's policies requires that Respondent reimburse em-
ployees for losses suffered by reason of Respondent's unilateral action until
such time as Respondent remedies its violation by doing what it should have
done in the first place. That point in time was reached when Respondent
bargained to agreement with the Union on the subject matter of Respon-
dent's unilateral change.
assigns, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Substitute the following for paragraph 2(b):
"(b) Make whole the employees in the bargaining
unit previously described who lost wages as a result of
Respondent's action for the period November 9.
1978, to March 5, 1979, with interest thereon to be
computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977). See, generally,
Isis Plumbing & Heating Co., 138 NLRB 716 (1962)."
2. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs accordingly:
"(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order."
DECISION
ROGER B. HOLMES, Administrative Law Judge: The un-
fair labor practice charge in this proceeding was filed on
November 29. 1978. by Dallas General Drivers, Ware-
housemen & Helpers, Local Union No. 745, herein called
the Union.
The Regional Director of Region 16 of the National La-
bor Relations Board, herein called the Board, who was act-
ing on behalf of the General Counsel of the Board, issued
on January 9, 1979, a complaint and notice of hearing
against Long Mile Rubber Company, subsidiary of Aegis
Corporation, herein called Respondent.
The General Counsel's complaint alleges that Respon-
dent has engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) and (5) of the National Labor Rela-
tions Act, herein called the Act. Specifically, the General
Counsel alleges in paragraph 10 of his complaint, as
amended at the hearing, the following:
Commencing on or about November 9, 1978, and at
all times thereafter, Respondent did refuse, and contin-
ues to refuse, to bargain collectively with the Union as
the exclusive collective bargaining representative of all
the employees in the unit described above in para-
graph 7 in that Respondent, in writing, unilaterally,
without notice to or bargaining to impasse with the
Union, changed existing terms and conditions of em-
ployment of the employees in the unit described a
above in paragraph 7 by posting a notice which put
into effect certain unilateral changes with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment in that it de-
creased the monetary value of single runs by requiring
that doubles take the longest runs available and it in-
creased the number of doubles from (3) to eight (8).
Respondent filed an answer to the General Counsel's
complaint and denied the commission of the alleged unfair
labor practices. With regard to the allegations set forth in
paragraph 10 of the General Counsel's complaint, Respon-
dent stated in its answer the following:
245 NLRB No. 174
1337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent denies the allegations contained in
Paragraph 10 of the complaint. in this respect, the Re-
spondent would show that any action taken by the Re-
spondent that is the subject of this complaint was done
in the normal course of its business, was consistent
with past practice, and did not constitute any change
of existing terms and conditions of employment of the
employees in the unit described in Paragraph 7 of the
complaint. Further, the Respondent would show that
any action taken was in response to an emergency situ-
ation and done in order to maintain the company's
compliance with all applicable federal laws and regula-
tions.
The hearing was held before me on March 22, 1979, in
Dallas, Texas. The time for filing briefs was set for April 26,
1979. Briefs have been received from the counsel for the
General Counsel and from the attorneys for Respondent.
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Delaware corporation with offices, facili-
ties, and its principal place of business located in Dallas,
Texas, where it is engaged in the warehousing and distribu-
tion of rubber products.
During the year 1978, Respondent purchased products
valued in excess of $50,000 directly from States of the
United States other than the State of Texas.
Upon the foregoing facts, and the entire record herein, I
find that Respondent has been, at all times material herein,
an employer engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
It was admitted in the pleadings that the Union has been,
at all tims material herein, a labor organization within the
meaning of Section 2(5) of the Act. Based on the foregoing,
and the entire record in this case, I find that fact to be so.
III11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Witnesses
In alphabetical order by their last names, the following
three persons appeared as witnesses at the hearing in this
proceeding:
Bobby R. Clifton is employed as a truckdriver for Re-
spondent.
Howard Deasy is the vice president of manufacturing for
Respondent.
Tim Dobbs is a truckdriver for Respondent.
B. Credibility Resolutions
In making the findings of fact herein, I have relied on the
testimony given by each one of the three persons who testi-
fied in this proceeding. Each one of the witnesses gave
credible testimony. They do not directly contradict one an-
other in most instances. However, in one instance, Clifton
related a conversation with Deasy on August 25, 1978, but
Deasy did not recall being told that the drivers were run-
ning "hot."
With regard to the content of the conversation between
Clifton and Deasy which occurred about August 25, 1978, 1
have relied on Clifton's account. Clifton was more positive
in his recall of that conversation. Deasy remembered hav-
ing talked with Clifton in the late summer of 1978 prior to
the time that Clifton went to the hospital, but he did not
recall certain points related by Clifton in Clifton's testi-
mony. Deasy testified: "But I don't remember him telling
me that the drivers were running hot, as they call it. I know
he said they were dissatisfied, they were mad, they're not
home very often, but I don't remember him saying they
were running hot. I don't recall it." After considering the
foregoing, although I found Deasy to be a credible witness,
I concluded that Clifton had the better recollection of that
particular conversation, and I have based the findings of
fact on Clifton's version. (See section F herein.)
In other respects, I have relied extensively on the testi-
mony related by Deasy, who was a knowledgeable witness
and who appeared to be relating the facts to the best of his
ability to do so.
In addition to the testimony given by the witnesses, I
have also considered and relied on the documentary evi-
dence introduced by the parties at the trial.
C. Background
The following allegations set forth in paragraphs 7, 8,
and 9 of the General Counsel's complaint were admitted in
the pleadings, and these matters are background facts to the
issues which are contested by the parties:
7.
All over-the-road drivers and permanent part-time
drivers employed by the Employer at its 6820 Forest
Park Road, Dallas, Texas, location, excluding all other
employees, including office clerical employees, guards
and supervisors as defined in the Act, constitute an
appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(b) of the Act.
8.
On or about October 27 and October 30, 1978, a
majority of the employees in the unit described above
in paragraph 7 by a secret ballot election conducted
under the supervision of the Regional Director for the
Sixteenth Region of the Board, designated and selected
the Union as their representative for the purposes of
collective bargaining with the Respondent and on or
about November 7, 1978, said Regional Director certi-
fied the Union as the exclusive bargaining representa-
tive of the employees of Respondent.
9.
At all times since October 30, 1978, and continuing
to date, the Union has been, and is now, the represent-
1338
LONG MILE RUBBER CO.
ative of a majority of the employees in the unit de-
scribed above in paragraph 7, for the purpose of collec-
tive bargaining; and, by virtue of Section 9(a) of the
Act, has been and is now, the exclusive representative
of all the employees in said unit for the purpose of
collective bargaining with respect to rates of pay,
wages, hours of employment and other terms and con-
ditions of employment.
D. Company Practices and Procedures Regarding the
Dispatch of Truckdrivers
As the vice president of manufacturing, Deasy works at
the executive offices of Respondent in Dallas, Texas. Re-
spondent's Dallas plant is less than a mile away from the
executive offices. That facility is one of four production
plants operated by Respondent in the United States. Each
plant has a plant manager who reports to Deasy. Deasy is
in charge of production at all of Respondent's plants and
reports to the president of the company.
The competitive situation in the industry was described
by Deasy as follows:
In our industry, deliveries are very critical. Because it's
very competitive, we give things like three-day deliver-
ies, sometimes five-days deliveries, and I know from
experience, when you talk with people about deliveries
they don't understand that, because I can call up for
an electric motor and get 22-week delivery on it.
So, when our customer calls up, if you tell them 22
weeks, I guarantee you, you wouldn't have a customer.
He wants it next week.
Robert Ragsdale is the immediate supervisor of the Re-
spondent's over-the-road truckdrivers at the Dallas facility.
Ragsdale joined the Company about 5 or 6 years ago, fol-
lowing problems encountered by Respondent with the De-
partment of Transportation. Ragsdale reports to Deasy.
On June 29, 1976, Respondent issued a document enti-
tled "Policy for Road Drivers." Certain revisions were
made a few days later on July 2, 1976. A copy of that
document and also the revisions were introduced into evi-
dence as Respondent's Exhibit . The exhibit consists of 10
pages which are typewritten, single-spaced. The entire
document is in evidence, and it may be examined by those
having a need to do so. However, there are certain portions
which are particularly relevant to the consideration of the
issues presented in this case. In part, the "Policy for Road
Drivers" provides:
Road Drivers shall be expected to maintain accurate
logs and records and to operate in accordance with
DOT regulations, and to maintain all trip records
specified by the company.
* *
Regular drivers will be utilized for the majority of cus-
tomer deliveries and will be dispatched daily on the
basis of "first in-first out." Regular drivers are paid
on a mileage basis.
DISPA TCHING PROCEDURES
The Dallas and Spartanburg plants shall utilize sepa-
rate dispatching procedures due to basic differences in
each plant operation. However, both bases shall utilize
a basic policy of "first-in, first-out". Route truck driv-
ers shall not be a part of the regular dispatching proce-
dure. A rotating dispatch list shall be maintained at
each base and regular drivers must sign-in subsequent
to each trip. Such sign-in must be personally by each
regular driver and under no circumstances will any in-
dividuals be permited to sign-in for another person.
Each day there will be a designated dispatching time
for all drivers on the dispatch board. All available
loads will be offered to those drivers in accordance
with their position on the dispatch board. It will be the
drivers responsibility to gave the dispatcher a tele-
phone number where he may be reached and it will be
the drivers responsibility to be available at the tele-
phone number at dispatch time. If any driver turns
down all of the listed loads at the time of dispatch, his
name will be placed at the bottom of the board and he
will not be called again until all other regular drivers
have had an opportunity to select their loads that day.
However, if there are loads left over, the dispatcher
will assign a driver to a specific trip.
At the Dallas base there will be three types of trips
excepted from the normal dispatch procedure of regu-
lar drivers: (a) California doubles, (b) Specials, (c)
Heavy duty loads.
(a) California doubles are generally described as the
routine weekly deliveries to destinations in Arizona
and California. There will be two regular driver teams
for bid every six months on the basis of driver senior-
ity. Time periods will be January through June and
July through December. The senior driver selecting a
California double will have the choice of any regular
driver to be his partner. Both individuals shall be ex-
pected to remain in this assignment for the full six
month period. In the event either driver is unavailable
due to vacation, sickness, dismissal or any cause the
remaining driver of that team shall have the choice of a
replacement from the regular driver list. At the end of
each six month period, drivers will return to the nor-
mal dispatch routine, if they do not successfully rebid
the California run. If more than two trucks are needed
during any week for California deliveries, the addi-
tional trips will be part of the normal dispatch routine.
Company management decides whether additional
trips are to be run as single or double drivers.
(b) Specials are generally described as short trips origi-
nating at the Dallas base and being less than 500 miles
round trip. Specials shall be dispatched from the "bot-
tom of the board". The lowest driver on the dispatch
list shall have an opportunity to select specials without
having his name removed from the list. The objective
of this procedure is to equalize mileage where possible
and to prevent regular drivers from having to select
short runs and losing board position for more desirable
long mileage runs.
1339
. .
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Heavy duty runs are generally described as a trip
designated to haul heavy process or plant equipment
or utilization of special road equipment not normally a
part of the company fleet. Such trips shall not be a part
of the regular dispatch routine. The truck dispatcher
may select specific drivers on the basis of experience.
In the event drivers based at other locations are routed
to the Dallas Plant or the Spartanburg Plant, the traffic
dispatcher may schedule shipments to utilize such driv-
ers and equipment without regard to the previously
described dispatching procedure. Drivers being dis-
patched from other than their home base location shall
be expected to accept such dispatches without contro-
versy.
In the event the dispatch board is empty and trips are
of such urgency that they must be scheduled before a
regular driver is available, the dispatcher shall have the
right to utilize extra drivers. Such extra drivers shall
not be dispatched when regular drivers are available.
Insofar as it is consistent with the best interest of Long
Mile Rubber Company, we shall endeavor to maxi-
mize all inbound and outbound shipments via com-
pany operated truck. Shipments via common carrier
will be utilized when it is in the best interest of the
company, or is dictated by customer requirements. In-
sofar as is reasonably possible, customer deliveries and
raw material pick ups shall be handled by Road Driv-
ers. However, other company employees may be uti-
lized for local deliveries and shipments in close prox-
imity to the plant.
Under the "Work Rules for Dallas Based Road Drivers"
which is a part of Respondent Exhibit 1, rule 13 provides
that, "all DOT regulations are to be adhered to and any
warnings, fines or violations must be reported to driver's
dispatcher."
As the dispatcher for the Dallas-based truckdrivers,
Ragsdale had the responsibility for assigning the various
loads to the drivers. Ragsdale did not testify, but Deasy
stated that Ragsdale had always possessed the discretion to
decide what loads would go into certain trucks; where the
loads would go; how the loads would go, as a single run or
a double run, and the routing for the trip. According to
Deasy, Ragsdale always had the discretion to decide what
would be a single run and what would be a doule run.
Usually, the double runs would be the longer trips to Cali-
fornia and the Pacific Northwest.
In Clifton's view, Ragsdale had exercised complete con-
trol over the dispatching of drivers for the past 5 years and
continuing up to the time of the trial.
Clifton has a personal preference for driving by himself,
or what was termed as a single run. Clifton stated that he
had driven a truck for Respondent with another truckdriver
"only when it's absolutely necessary." When two truckdriv-
ers leave together in one truck, that is termed a double run.
E. The Department of Transportation Inspection in May
1978
In May 1978 representatives of the Department of Trans-
portation conducted an inpection of Respondent's logs. The
inspection lasted for about 1-1/2 days. As a result of the
inspection, four violations of Department of Transportation
regulations were disclosed.
Portions of part 395 of the Regulations of the Depart-
ment of Transportation, which were in effect at the times
material herein, were introduced as General Counsel's Ex-
hibit 4.
Deasy's response to the Department of Transportation
regarding the violations found by that agency was made by
letter dated May 22, 1978. A copy of Deasy's letter was
introduced into evidence as General Counsel's Exhibit 6. In
pertinent part, the document states:
In conjunction with your recent inspection, we have
taken the following steps to guarantee compliance with
the four violations:
392.2-We have informed all drivers that they
cannot exceed 50 mph average on their daily logs.
These logs will be checked by our Traffic Manager
and his department to guarantee control of this 50
mph Company Policy.
394.9-It appears that you have uncovered a
problem in our accident reporting system. We do
make out Company, Ryder and Insurance Accident
reports but out home office did not forward a copy
to DOT. We have forwarded all delinquent year-to-
date reports and will follow through with this proce-
dure in the future.
395.3A-Our Traffic Manager has talked with all
the drivers stressing the point that we must have
strict adherence to all DOT regulations. I have
talked with our Traffic Manager and stressed the im-
portance of all regulations and the fact that he is
responsible to see that all logs are checked and that
they are correct.
395.A(2)-All drivers are now entering "on duty
not driving" for all stops. Again, control is our Traf-
fic Manager who has tightened up on our log inspec-
tions.
We do appreciate your review of our trucking opera-
tion and if we can be of further assistance, please let us
know.
In addition, Deasy specifically instructed Ragsdale that
Ragsdale was not to violate the DOT regulations. Deasy
explained: "If we are in violation of the DOT, they can
walk in and shut down our trucking operation, shut down
our operation immediately. Well, our whole company is
what we produce and what we sell. If we don't have it, we
don't have a company, and sitting there running hot under
those conditions we can be subject to being out of business
tomorrow, and I told Ragsdale that, and he knew it, and
very emphatically."
Deasy stated that he did not recall receiving any com-
plaints from the Department of Transportation regarding
Respondent's operation since May 1978.
F. The Conversation Between Clifton and Deasy on August
25, 1978
Clifton has discussed the problem of the truckdrivers run-
ning "hot" with various supervisors on a number of occa-
sions.
1340
LONG MILE RUBBER CO.
In particular, Clifton recalled having a conversation with
Deasy on August 25, 1978, which was just prior to Clifton's
illness. During that conversation, Clifton informed Deasey
that the truckdrivers of Respondent were very unhappy.
Clifton told Deasy that the drivers who were making single
runs were not getting time off and that the drivers were "all
running hot."
Clifton expressed the view to Deasy that the truckdrivers
were not being compensated for the time and the effort
which they were performing for the company. According to
Clifton, Deasy told him, "This was news to him, that he
would check into it .... "
It was shortly after that conversation that Clifton was
hospitalized with a neck injury. Clifton did not report back
for Respondent until October 1978.
G. The Meetings with the Truckdrivers on October 20 and
21, 1978
As indicated above in section C, the representation elec-
tion among the truckdrivers of Respondent at the Dallas
location was conducted on October 27 and 30, 1978. Re-
spondent held preelection meetings with the truckdrivers on
Friday, October 20, 1978, and on Saturday, October 21,
1978. Both Deasy and the president of Respondent at-
tended both meetings with the truckdrivers.
At the meeting on October 21, 1978, one of the truckdriv-
ers spoke up and said that they were running "hot," which
meant that they were driving in violation of the regulations
of the Department of Transportation. The assertion by the
truckdriver that they were running "hot" was supported by
still another truckdriver at the Saturday meeting.
Deasy described the reaction of the president of Respon-
dent to the statements by the truckdrivers that they were
running "hot" as follows:
His reaction-well, he was very, very annoyed, and
when he got together with me later, he certainly ex-
pressed the fact that he had put his faith in me that I
would control Ragsdale to be damn sure we didn't
have any violations, and here he comes up and hits
him in the face that we do, and he reviewed the situ-
ation of the jeopardy we placed the company in be-
cause of the violations and of the DOT citation in May
and going back years before when they had even more
problems, and he said that I absolutely must guarantee
that we don't have that. He was very, very upset. No
question.
Deasy immediately discussed the matter with Ragsdale,
who told him that the truckdrivers were probably correct in
saying that they were running "hot." Deasy told Ragsdale,
"I don't care what you do. We've got to get legal." Rags-
dale replied that he could handle the situation. However,
Deasy believed that Ragsdale's assurances were not suffi-
cient. He explained, "In reviewing the situation, him han-
dling it probably isn't good enough. I got to put something
down to be sure it's handled, which brought out the letter.
And I couldn't see any other way that we could go. I didn't
know what else to do."
As will be described more fully in section H, the letter or
notice by Deasy to Respondent's truckdrivers was not
posted until Thursday, November 9, 1978. Deasy's explana-
tion for the interval of time between his being informed on
October 21, 1978, that the drivers were running "hot," and
the subsequent posting of the notice on November 9, 1978,
is set forth at transcript pages 83-86. In summary, Deasy
recalled that Ragsdale was not at the facility on Saturday.
October 21, 1978, so he did not speak with Ragsdale re-
garding the drivers running "hot" until Monday, October
23, 1978. Deasy further recalled that it was the president of
Respondent who instructed him to put the matter in wnt-
ing. Deasy again spoke with Ragsdale regarding this subject
and reviewed with him "what we could do and how we
could make it legal .... " As a result of his discussions with
Ragsdale, it was decided that if there were eight doubles
running, then the truckdrivers would be able to drive le-
gally. Deasy then drafted a letter which underwent some
changes by the president of Respondent before it was
posted on November 9, 1978.
H. The Posting of the Notice on November 9, 1978
A copy of the notice which was posted by Deasy on No-
vember 9, 1978, was introduced as General Counsel Exhibit
2. In addition, a copy of the same notice, but with the at-
tachment of the names of the truckdrivers who signed up
for double runs and single runs, was introduced into evi-
dence as General Counsel Exhibit 3. The text of Deasy's
notice is as follows:
All Dallas Drivers
In view of the information that came out in our re-
cent meetings, we are faced with an emergency situ-
ation which dictates that we must run more doubles
immediately.
As a temporary measure, since this is a bargaining
item with the Union and we have not yet arranged a
bargaining schedule, we will go with 8 doubles and 7
singles. Please sign-up for your preference and if it is
doubles, pick a partner. The basic rule will be first in
has first pick of the loads but the doubles must take the
longest runs available. When we bargain through this
new situation with the Union, there could be some
changes and the situation could become more perma-
nent but for now this is an emergency situation set up
as a temporary measure.
According to Deasy, the letter or notice which he posted
was supposed to increase the number of doubles teams to
eight, but Deasy stated, "Well, in reviewing the record, I
think it got to six, or five and a half; I'm not sure. At other
times, it exceeded eight." When he was questioned as to
whether his noice simultaneously reduced the number of
single runs, Deasy responded, "Basically, I guess you'd say
that."
Deasy offered the following explanation with regard to
what caused or prompted him to post the notice:
Q. OK. Now, explain for the record, Mr. Deasy
what caused you or prompted you to post the docu-
ment marked as GC-2.
A. Well, it gets a little bit involved. Primarily be-
cause I was in a situation where we were in violation of
DOT, and I had to do something to get out of the
violation.
1341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MR. DUNIAP: Mr. Deasy. would you tell us what
DOT is, for the record?
THE WITNESS: Well, DOT, for the record, is Depart-
ment of Transportation, and in the meetings we had
with the drivers just prior to the election, about 10
days before this letter came out, it came out the drivers
told us that they were running hot. By hot, we mean
they were running over hours, which is a safety viola-
tion with the federal government.
So I was in a very precarious situation. I had to
make a move to do something on it. Then, to go a little
further in that, I guess you've got to go back about
seven years ago when I went through a union organiza-
tion in another plant where I worked with a labor law-
yer who told me once you receive notice of a pending
union election, there's probably a hundred and one
things you can do wrong immediately, and you
wouldn't know that you could do it wrong.
So in view of that situation I'd say it's probably a
little bit of knowledge is a dangerous thing, so I tried to
write this letter to be absolutely frank and straight with
the drivers and tell them, here's our problem, here's the
only way I can see that we can do it, and if later we're
going to bargain about this thing, man, we're going to
bargain about it, but right now, I see no other alterna-
tive.
And that's why I wrote the letter.
Q. OK. What regulations were they that you under-
stood your drivers to be in violation of: the one involv-
ing maximum driving and on-duty time?
A. Basically, yes.
Deasy acknowledged that he did not contact the Union
prior to posting the notice. He stated, "I didn't contact the
Union. I didn't think I had to. I know it's our discretion to
make a decision on what to do which is always what we've
done in Dallas and the other three plants-the other two
plants at that time."
At the point in time when Deasy posted the notice, he
had not received any request to bargain from the Union.
1. The Effects of the Notice
The rate of compensation paid by Respondent for a dou-
bles run is 21.5 a mile. That compensation for a doubles
trip is, of course, divided between the two truckdrivers
making the trip. In contrast, the compensation paid by Re-
spondent to a truckdriver who makes a single run is at the
rate of 15.25 a mile. Of course, with a single run, the one
driver receives the total amount of the compensation.
At the time of the representation election, Respondent
employed 23 over-the-road truckdrivers.
Joint Exhibit I reveals that, prior to the posting of the
notice on November 9, 1978, the doubles runs performed
by Respondent's employees were primarily made from Dal-
las to various cities in California. In addition, during that
period of time there were some doubles runs made from
Dallas to locations in Arizona, Nevada, Oregon, and Wash-
ington. Two doubles runs were made to Export, Pennsylva-
nia, on June 2 and October 28, 1978. One such doubles run
was made to Columbus, Ohio, on November 8, 1978, which
was the day prior to the posting of the notice.
According to Clifton. he has lost wages since the posting
of Respondent's notice on November 9, 1978, because of
the increase in the number of double runs. As indicated
earlier, Clifton prefers to drive alone, rather than with an-
other truckdriver. However, due to economic necessity,
Clifton has made double runs both before and after the
posting of Respondent's notice on November 9, 1978.
Respondent's records indicate that Clifton has performed
more double runs with greater frequency after the posting
of Respondent's notice on November 9, 1978. than Clifton
did prior to the posting of that notice.
A compilation of double runs made by Respondent's em-
ployees during the time period from January 1, 1978.
through February 25. 1979, was introduced as Joint Exhibit
1. An examination of that exhibit shows that Clifton per-
formed double runs only on three occasions during 1978
prior to the posting of the notice. However, after the post-
ing of the notice, Clifton performed double runs five times
in just the 2 months of December 1978 and January 1979.
Joint Exhibit I shows the following with regard to Clifton:
Drivers
Dobbs/Clifton
Clifton/Dobbs
Clifton/Creag
Clifton/Maggard
Dobbs/ Clifton
Clifton/Anderson
Clifton/Anderson
Clifton/Anderson
Final
Destination
Los Angeles, CA
Reno, ANV
Export, PA
Tooele, UT
Minot, ND
Compton, CA
Sheffield, AL
Sheffield, AL
Left
3/12/78
5/6/78
10/28/78
12/10/78
12/17/78
12/31/78
1/9/79
1/11/79
Even considering Clifton's illness during a portion of
1978 prior to the posting of the notice, the foregoing records
indicate that he performed double runs with greater fre-
quency in the months following the posting of the notice.
Introduced into evidence as Joint Exhibit 2 was a compi-
lation from Respondent's records with regard to the num-
ber of double runs performed on a weekly basis from Janu-
ary 1. 1978, through March 3, 1979.
Given the span of time encompassed by Joint Exhibit 2,
there is information which covers two comparable periods
of time. Those periods of time are the first 8 weeks of the
year 1978 and the first 8 weeks of the year 1979. As indi-
cated above, the data on that particular exhibit covers a
longer period of time. but just looking for the moment at
the first 8 weeks of each year. the document shows that
there were 23 double runs performed by employees of Re-
spondent during the first 8 weeks of 1978 and there were 30
double runs performed by employees of Respondent during
the first 8 weeks of 1979.
Introduced as Joint Exhibit 3 was a compilation from
Respondent's records with regard to single runs which had
been performed by employees of Respondent from January
4, 1976, through March 4, 1979. The figures are given on a
weekly basis. While the document covers a longer span of
time, a comparable time period existing throughout that
document would be the first 10 weeks of each year-1976,
1977, 1978, and 1979. Looking for the moment at that 10-
1342
I.ONG MILE RUBBER CO.
week time period beginning in January on each of those 4
years, Joint Exhibit 3 reveals the following with regard to
the first 10 weeks of each year:
1976 208
1977- 185
1978- 160
1979- 178
While Dobbs described himself as being a single driver.
Joint Exhibit I revealed that Dobbs had made 10 trips as a
doubles driver during 1978 prior to the time that Respon-
dent posted the notice, and that Dobbs made one doubles
run after Respondent posted the notice. The information on
Joint Exhibit I revealed the following with regard to the
doubles run by Dobbs during the period from January 1,
1978, through February 25, 1979:
Drivers
Dobbs/Soaper
Dobbs/Pi t tran
Joh nson/Dobbs
Dobbs/C i f ton
Cli f ton/Dobbs
Dobbs/K Lmbre 11
Dobbs/K imbrel 1
Dobbs/K Lmbre 11
Dobbs/Soaper
Soaper/Dobbs
Dobbs/Clif ton
Final
Destination
Bellflower, CA
So. E1 lonte, CA
Bellflower, CA
Los Angeles, CA
Reno, NV
Export, PA
San Bernardino, CA
Littleton, CO
Portland, OR
Portland, OR
t4inot, ND
Left
1/2/78
1/22/78
2/6/78
3/12/78
5/6/78
6/2/78
7/2/78
8/1/78
9/17/78
10/28/78
12/17/78
According to Dobbs, since Respondent posted the notice,
Dobbs has not been able to make some runs from Respon-
dent's facility to California as a single truckdriver. Specifi-
cally, he had reference to trips to the greater Los Angeles
area.
According to Dobbs, prior to the posting of the notice by
Respondent. there were no double teams of truckdrivers of
Respondent making trips to Denver, Colorado. After the
notice was posted, Dobbs said that double teams had made
such trips. Dobbs added that, similarly, Respondent had
double teams driving to Minnesota. Beaumont, Salt Lake
City. and Pittsburgh after the posting of the notice, whereas
single drivers made the runs prior thereto.
J. The Contract Negotiations and the Agreement Between
the Respondent and the Union on a Dispatch Procedure
Contract negotiations between Respondent and the
Union commenced on December 18, 1978. At the first ne-
gotiation meeting, the Union submitted a complete contract
proposal to Respondent. The Union's contract proposal in-
cluding a dispatching procedure.
A copy of the Union's initial proposal regarding the
"Method of Dispatch" was introduced into evidence as Re-
spondent Exhibit 2. The proposals of the Union on that
subject are set forth in four pages which are typed, double-
spaced. Item 9 of the Union's proposal states as follows:
"The company shall have complete discretion in the deter-
mination of whether a given trip shall be a double or single
run.
Subsequently, the Union's proposal as reflected in Item 9,
above, was withdrawn, but after seven negotiating sessions
between Respondent and the Union, agreement was
reached by the first week in March 1979 that the Company
would have complete discretion in determining whether a
trip would be a double or single run.
As of the time of the trial in this proceeding. Respondent
and the Union had not reached a complete agreement on
all terms of a collective-bargaining agreement.
K. Conclusions
In considering whether or not the actions taken by Re-
spondent on November 9, 1978. constituted unilateral
changes in violation of Section 8(a)(1) and (5) of the Act, it
is helpful to note the Board's decision in Pan-Abode, Inc.,
222 NLRB 313. 315 (1976), where the Board stated:
In order for General Counsel to prove a prima facie
case with respect to an alleged violation of Section
8(a)(5), he need only prove that an obligation to bar-
gain under Section 9(a) existed and that Respondent
refused to bargain either directly or did not bargain by
unilaterally effecting a change in working conditions.
Not only is Respondent's motivation in instituting such
changes totally irrelevant in determining the existence
of a violation under Section 8(a)(5), but such consider-
ations may, as alleged in this case, provide the predi-
cate for finding the same actions violative of other sec-
tions of the Act.
In the instant case, the evidence shows that prior to Re-
spondent's action on November 9, 1978. a majority of the
employees in the bargaining unit had selected the Union as
their exclusive collective-bargaining representative in the
election held on October 27 and 30. 1978, and that the
Board had certified the Union as the collective-bargaining
representative of those employees on November 7, 1978. It
is further acknowledged that Respondent did not give no-
tice to, or bargain with, the Union prior to the posting of
the notice of November 9, 1978. In past years. the dis-
patcher had exercised discretion with regard to the dispatch
of Respondent's truckdrivers at its Dallas location. How-
ever, after the employees had voted for the Union in the
representation election. and after the Board had certified
the Union as the collective-bargaining representative of the
unit employees, Respondent was legally obligated to recog-
nize and bargain with the Union regarding matters which
would affect the wages, hours, or working conditions of the
unit employees. As the Board stated in Amyterdam Printing
and Litho Corp.. 223 NLRB 370, 372 (1976):
Nor do we find merit in the assertion that these uni-
lateral changes are justified by past practice, as the
practices of Respondent prior to the certification of the
Union do not relieve it of the obligation to consult with
the certified Union about the implementation of these
practices as affecting the wages, hours, and other terms
and conditions of employment of the unit employees.
Oneita Knitting Mills, Inc.. 205 NLRB 500 (1973).
1343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Oneita Knitting Mills referred to above, the Board
stated at fn. 1:
Respondent argues that a finding that the unilateral
grant of merit increases was a violation of Sec. 8(a)(5)
would be inconsistent with the holding of this Board in
Southeastern Michigan Gas Company, 198 NLRB No.
8, wherein we found a discontinuance of merit in-
creases to have been a violation of Sec. 8(a)(5). We
disagree. An employer with a past history of a merit
increase program neither may discontinue that pro-
gram (as we found in Southeastern Michigan) nor may
he any longer continue to unilaterally exercise his dis-
cretion with respect to such increases, once an exclu-
sive bargaining agent is selected. N.L.R.B. v. Katz, 396
U.S. 736 (1962). What is required is a maintenance of
preexisting practices, i.e., the general outline of the
program, however the implementation of that program
(to the extent that discretion has existed in determining
the amounts or timing of the increases), becomes a
matter as to which the bargaining agent is entitled to
be consulted.
Thus, I conclude that it was not permissible under the
Act for Respondent to ignore the Union with regard to
matters affecting the employees in the bargaining unit after
those employees had selected the Union to represent them.
Although the evidence shows that the Union had not for-
mally requested bargaining with Respondent as of Novem-
ber 9, 1978, I conclude that the absence of such a request
did not nullify Respondent's legal obligation to bargain
with the Union which arose from the Board-conducted
election and certification of the Union.
The notice itself indicates Deasy's belief at that point in
time that "this is a bargainable item with the Union .... "
Later in the notice it states, "When we bargain through this
new situation with the Union .... " Thus, I conclude from
the notice itself that the Respondent recognized at that time
that the subject matter of the notice was a bargainable item
with the Union, and that Respondent did contemplate fu-
ture bargaining over the matter with the Union.
The increase in the number of doubles runs to eight, and
the setting of seven single runs was a change from the prac-
tice which had theretofore been in effect. While the predi-
cate for the change was Respondent's desire to avoid viola-
tions of the regulations of the Department of
Transportation, I find that such a motivation did not relieve
Respondent of its obligation to bargain with the Union. In
the Board's decision in The Little Rock Downtowner, Inc.,
168 NLRB 107, fn. 3 (1967), enfd. 414 F.2d 1084 (8th Cir.
1969), the Board held:
We agree with the Trial Examiner that increases
granted without consultation with the Union consti-
tuted unlawful refusals to bargain. With regard to
Stewart, we specifically reject Respondent's contention
that bargaining was not required because Respondent
had good cause to increase Stewart's duties (to con-
form to the local health officer's order to improve sani-
tary conditions) and therefore his wages. The duty to
bargain remains regardless of the reason for the wage
increase.
Further on in The Little Rock Downtowner decision, the
Board also held at 108:
Respondent's unilateral changes of working conditions
without consultation with the bargaining agent are vio-
lations which strike at the heart of the Union's ability
to effectively represent the unit employees. There is no
clearer or more effective way to erode the ability of the
Union to bargain for the employees than for Respon-
dent to make such changes without consultation with
the Union.
As shown above in the findings of fact, the rate of com-
pensation paid by Respondent for doubles runs and for sin-
gle runs is different. Of course, with a doubles run the two
drivers must divide the total compensation, whereas with a
single run the one driver receives the total compensation for
that trip. In addition, by providing that the "doubles must
take the longest runs available," the singles driver would
not have the opportunity for the runs of the longest dura-
tion. Aside from the monetary aspects of the change, the
conditions under which the drivers worked would be af-
fected by the increase in the number of doubles teams. As
indicated by Clifton, he preferred to work alone, rather
than as part of a doubles team.
While I have given consideration to the contention that
the notice was posted as a result of an emergency situation,
I conclude that the facts do not establish that a genuine
emergency existed. First of all, the time interval between
the preelection meeting with the truckdrivers on Saturday,
October 21, 1978, and the posting of the notice, on Novem-
ber 9, 1978, is indicative that a true emergency requiring
immediate action did not exist. Secondly, the credited testi-
mony of Clifton reveals that he had called to Respondent's
attention the fact that the drivers were not in compliance
with the Department of Transportation regulations on Au-
gust 25, 1978. Thirdly, it seems a reasonable inference to
draw from the record that Respondent's dispatcher was
knowledgeable of the situation prior to the time that the
two truckdrivers spoke up at the meeting on October 21,
1978. Therefore, considering all of the foregoing, I conclude
that this was not a true emergency situation.
I have considered the cases urged by Respondent in sup-
port of its defense. However, I found those cases to be dis-
tinguishable. For example, in the Board's Decision in Wa-
bash Transformer Corp., Subsidiary of Wabash Magnetics
Inc., 215 NLRB 546 (1974), the administrative law judge
had reached the conclusion that there was a unilateral
change in working conditions when the employer imposed
the penalty of discharge for employees' failing to meet effi-
ciency standards. However, the Board disagreed with the
Administrative Law Judge and reasoned that "we conclude
that the discharge sanction was merely one means of en-
forcing the preexisting efficiency standards which was im-
plicit in the existence of any such standard. The emphasiz-
ing of this means did not constitute unlawful unilateral
action in violation of Section 8(a)(5) and (1) of the Act."
Thus, the penalty of discharge was found by the Board in
that case to be implicit in the efficiency standards, and
merely emphasizing one of those existing penalties was not
a unilateral action. In the instant case I find that the evi-
dence shows that there was a change on November 9, 1978,
and not merely an emphasizing of a preexisting fact. There-
1344
LONG MILE RUBBER CO.
fore, I find the instant case to be distinguishable from the
Board's decision in Wabash and the Board's Decision in
The Trading Port, Inc., 224 NLRB 980 (1976), which relied
on the Wabash decision.
In view of the fact that Respondent and the Union subse-
quently bargained and reached agreement on the subject
matter involved in the unilateral change, I find that an or-
der to restore the status quo ante would not be appropriate
in these circumstances. Compare two Board Decisions
which are distinguishable on this particular point: Atlas
Tack Corporation, 226 NLRB 222 (1976); Boland Marine
and Manufacturing Company, Inc., 225 NLRB 824 (1976).
After considering the foregoing, the briefs filed by the
parties, and the entire record herein, I conclude that a pre-
ponderance of the evidence establishes that Respondent did
make unilateral changes on November 9, 1978, with respect
to the rates of pay, wages, hours of employment, and other
terms and conditions of employment of the employees in
the bargaining unit. Therefore, I find that Respondent has
thereby violated Section 8(a)(l) and (5) of the Act.
Having reached the conclusion that unfair labor practices
did occur, the question then arises as to what the appropri-
ate remedy would be. Counsel for the General Counsel
seeks, inter alia, a monetary remedy for those employees
who lost earnings as a result of Respondent's unilateral
changes. His argument is persuasive in these circumstances
where the unilateral changes had an effect not only on the
conditions under which the truckdrivers worked, but also
on the rate of pay and the wages of the bargaining unit
employees.
In conclude that the backpay period of the bargaining
unit employees, who lost wages as a result of Respondent's
unilateral actions, should commence on November 9, 1978,
when the notice was posted, and that the backpay period
should end on December 18, 1978, when Respondent and
the Union commenced negotiations on the terms of a col-
lective-bargaining agreement. In this connection, it should
be remembered that the Union's initial contract proposal
on December 18, 1978, included the proposal that, "The
company shall have complete discretion in the determina-
tion of whether a given trip shall be a double or single run."
Thus, the subject matter of Respondent's earlier notice was
brought up in the initial negotiating session between Re-
spondent and the Union. Furthermore, that proposal was
ultimately agreed to by both parties after a number of inter-
vening bargaining sessions. Since bargaining commenced
on December 18, 1978, concerning the matter on which
Respondent had earlier taken unilateral action, I conclude
that the backpay period ended at that point in time.
Notwithstanding the fact that there may be some diffi-
culty in computing the backpay due to certain employees, I
conclude that Respondent may not be excused from its
monetary liability because Respondent's own actions may
have made the amounts of backpay difficult to compute.
Such computations may properly be made in the compli-
ance stage of this proceeding.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees constitute a unit appropriate
for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act:
All over-the-road drivers and permanent part-time
drivers employed by the Respondent at its 6820 Forest
Park Road, Dallas, Texas. location, excluding all other
employees, including office clerical employees, guards
and supervisors as defined in the Act.
4. At all times material herein the Union has been, and is
now, the exclusive representative of all of the employees in
the above-described appropriate unit for the purposes of
collective bargaining.
5. By making unilateral changes on November 9, 1978,
with respect to the rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment of its
employees in the bargaining unit described above, Respon-
dent has engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) and (5) of the Act.
6. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Since I have found that Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a)(I)
and (5) of the Act, I shall recommend to the Board that
Respondent be ordered to cease and desist from engaging in
those unfair labor practices.
I shall also recommend to the Board that Respondent
take certain affirmative action in order to effectuate the
policies of the Act. Such affirmative action will include a
bargaining order. In that connection, see St. Elizabeth Com-
munity Hospital, 240 NLRB 937 (1979). Such affirmative
action will also include a recommendation that the employ-
ees be made whole for their losses resulting from Respon-
dent's unilateral action. The backpay period will commence
on November 9, 1978, when Respondent made the unilat-
eral change, and the backpay period will cease on Decem-
ber 18, 1978, when Respondent and the Union commenced
negotiations on the terms of a contract, which negotiations
included the subject matter of Respondent's unilateral
change. Backpay will be computed in accordance with the
Board's Decisions in F. W. Woolworth Company, 90 NLRB
289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716
(1962), and Florida Steel Corporation, 231 NLRB 651
(1977).
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to the provisions of Section 10(c) of the Act, I
hereby issue the recommended:
ORDER'
Respondent, Long Mile Rubber Company, subsidiary of
Aegis Corporation, its officers, agents, successors, and as-
signs, shall:
I In the event no exceptions are filed, as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
(Continued)
1345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I. Cease and desist from:
(a) Failing and refusing to bargain collectively with the
Union as the exclusive collective bargaining representative
of its employees in the appropriate unit described below by
making unilateral changes with respect to the rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment of its employees.
The appropriate bargaining unit is:
All over-the-road drivers and permanent part-time
drivers employed by the Respondent at its 6820 Forest
Park Road, Dallas, Texas, location, excluding all other
employees, including office clerical employees, guards
and supervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is deemed
necessary in order to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive bargaining representative of the employees in
the bargaining unit previously described and embody in a
signed agreement any understanding which may be
reached.
(b) Make whole the employees in the bargaining unit
previously described who lost wages as a result of Respon-
dent's action in the manner more fully described in the rem-
edy section of this Decision.
(c) Post at its Dallas, Texas, facility copies of the at-
tached notice marked "Appendix." In the event that this
Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Or-
der of the National Labor Relations Board" shall read
"Posted Pursuant to a Judgment of the United States Court
of Appeals Enforcing an Order of the National Labor Rela-
tions Board."
The Regional Director for Region 16 of the Board will
provide copies of the notice to Respondent. After Respon-
dent's representative has signed those copies, Respondent
shall post those notices immediately after receiving them.
Respondent shall maintain such notices for a period of 60
consecutive days after they have been posted in conspicu-
ous places, including all of the places where Respondent
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
customarily posts notices to its employees. Respondent
shall also take reasonable steps to insure that the notices are
not altered, defaced, or covered by any other material dur-
ing this period.
(d) Within 20 days from the date of this Order. Respon-
dent shall write a letter to the Regional Director for Region
16 of the Board and tell him what Respondent has done to
comply with this Order.
APPENDIX
NOTI(E To EMPLOYEES
POSTED BY ORDER OF TIHE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail and refuse to bargain collectively
with Dallas General Drivers, Warehousemen & Help-
ers, Local Union No. 745, as the exclusive collective-
bargaining representative of our employees in the ap-
propriate unit described below by making unilateral
changes with respect to the rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment of the employees in the bargaining unit. The
appropriate bargaining unit is:
All over-the-road drivers and permanent part-time
drivers employed by our company at our 6820 For-
est Park Road, Dallas, Texas, location, excluding all
other employees, including office clerical employees,
guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Na-
tional Labor Relations Act.
WE WILL, upon request, bargain collectively with the
Union as the exclusive bargaining representative of our
employees in the bargaining unit described above, and
WE WILL embody in a signed agreement any under-
standing which may be reached.
WE WILL pay to our employees in the bargaining
unit described above the amounts of money which
those employees lost as a result of the unilateral action
which was taken on November 9, 1978, and WE WIll.
pay those employees appropriate interest on those
sums of money.
LONG MILE RUBBER COMPANY, SUBSIDIARY OF
AEGIS CORPORATION
1346