McCormick Dray Lines

National Labor Relations Board - Board Decisions

Apr 28, 1995

317 N.L.R.B. 155 (N.L.R.B. 1995)

155
317 NLRB No. 23
MCCORMICK DRAY LINES
1 In contending that it need not supply information requested by
the Charging Party, the Respondent argues, inter alia, that a sub-
contracting clause contained in its collective-bargaining agreement
with the Charging Party allows it to transfer work to owner opera-
tors. Thus, the Respondent argues, it is not in violation of the con-
tract. We find that the Charging Party’s request for information was
not based exclusively on the subcontracting clause, and that the Gen-
eral Counsel has established that the Charging Party had an objective
factual basis for believing that the Respondent was transferring work
in violation of the parties’ collective-bargaining agreement.
The Respondent also maintains that the Charging Party conceded
at the hearing that two of the entities about which it seeks informa-
tion—McCormick Contracting of Massachusetts and McCormick
Contracting of South Carolina—do not exist. The General Counsel,
however, explicitly declined to concede this point at the hearing.
Further, even assuming arguendo that the two companies did not
exist as of the time of the hearing, that does not mean that they did
not exist as of the time of the request for information. Respondent’s
owner testified that, at some time after the request, he told the Union
that the companies did not exist. Of course, even if this testimony
is credited, it does not establish the nonexistence of the companies
at the time of the request. If the companies existed then, or at a time
that could be covered by a contractual claim by the Union, informa-
tion concerning them would be relevant. In our view, the issue of
when these companies existed can be resolved in compliance.
1 As Union President and Business Representative Donald Deivert
explained, ‘‘Local drivers work within . . . the area of Williamsport
and they’re home every day. Road drivers may be gone from one
to five days.’’
McCormick Dray Lines, Inc. and Teamsters Local
Union No. 764, International Brotherhood of
Teamsters, AFL–CIO. Case 4–CA–22380
April 28, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, BROWNING, AND COHEN
On October 7, 1994, Administrative Law Judge
Frank H. Itkin issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, McCormick Dray Lines,
Inc., Muncy, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Sheila Mayberry, Esq., for the General Counsel.
Charles J. McKelvey, Esq., for the Respondent.
Donald E. Deivert, for the Charging Party.
DECISION
FRANK H. ITKIN, Administrative Law Judge. An unfair
labor practice charge was filed in this case on January 18
and a complaint issued on February 25, 1994. The complaint
was later amended at the hearing. The General Counsel al-
leged in the complaint that Respondent Employer violated
Section 8(a)(5) and (1) of the National Labor Relations Act
by failing and refusing to furnish to Charging Party Union
certain requested information necessary for and relevant to
the Union’s performance of its duties as the exclusive collec-
tive-bargaining agent of an appropriate bargaining unit of the
Employer’s employees. Respondent Employer, in its answer,
denied violating the Act as alleged. Accordingly, a hearing
was held on the issues raised on August 4, 1994, in
Willamsport, Pennsylvania, and on the entire record thus
made, including my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
Respondent Employer is engaged in the interstate and
intrastate transportation of freight with facilities in Muncy,
Pennsylvania, and is admittedly an employer engaged in
commerce as alleged. Charging Party Union is admittedly a
labor organization as alleged. The Employer and the Union
are parties to a collective-bargaining agreement, effective
from November 25, 1991, to November 24, 1994, covering
an appropriate unit of the Employer’s local drivers and road
drivers.1 The collective-bargaining agreement contains, inter
alia, grievance and arbitration provisions. (See G.C. Exh. 2.)
On December 28, 1993, Donald Deivert, the Union’s
president and business representative, mailed to James Webb,
the Employer’s president, a questionnaire to be filled out and
returned by January 3, 1994. See appendix A annexed to the
complaint filed in this proceeding. The Employer admittedly
did not furnish the information as requested. Deivert ex-
plained that he had requested this information because he had
‘‘come to the conclusion that’’ the Employer ‘‘was trying to
establish a double breasted operation’’ and that the Employer
and other named business entities listed below ‘‘were doing
our bargaining unit work or were involved in it.’’ Deivert as-
sertedly needed the requested information in order to file a
grievance under the current collective-bargaining agreement.
Specifically, as appendix A to the complaint shows,
Deivert had requested with respect to Respondent Employer
McCormick Dray Lines, as well as business entities de-
scribed as WCI, Avis Truck Service, McCormick Contracting
of PA, MA and SC, and CK Services of New Jersey, the fol-
lowing information: A description of the types of businesses
in which they are engaged; the geographical areas in which
they do business; their business addresses and office loca-
tions; their post office box numbers and locations; their busi-
ness telephone numbers and directory listings; their banking
institutions with branch locations and account numbers; their
banking institutions with branch locations and account num-
bers of their payroll accounts not identified above; where and
by whom their accounting records are kept; their principal
accountants, bookkeepers, and payroll preparers; where and
by whom their corporate records are kept; where and by
whom their other business record books are kept; their work-
ers’ compensation insurance carriers with policy numbers;
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Counsel for Respondent Employer does not dispute that ‘‘the
total number [of unit jobs] went down after the strike.’’ Counsel for
Respondent Employer asserts, inter alia, that the decrease in unit
jobs was ‘‘a result of the strike . . . we lost business . . . 15 of
the unit drivers quit the Union . . . [and] went to work for [McCor-
mick] Contracting.’’ (See Tr. pp. 34–35 and 12.)
their other health insurance program carriers with policy
numbers; their Federal taxpayer identification numbers; their
other Federal or state taxpayer identification numbers;
amounts involved, reasons for and dates of transfer of any
funds between McCormick Dray Lines and the other named
entities; amounts involved, reasons for and dates of transfer
of any funds between their divisions; their sources and
amounts of lines of credit; the businesses to whom they rent,
lease, or otherwise provide office or warehouse space; their
building and/or office suppliers; businesses that use their
tools, equipment, or vehicles; businesses to whom they sell,
rent, or lease their operating, warehouse and office equip-
ment, tools or vehicles; businesses from whom they buy,
rent, or lease their equipment; their equipment transactions
arranged by written agreement; customers that are now or
were formerly customers of the above entities; any jobs that
they have bid with customer and dollar amounts; customers
that they have referred to the above entities with dollar
amount and reasons thereof; their corporate officers, direc-
tors, supervisors, and representatives actively involved with
day-to-day operations; places and dates of their directors’
meetings; their owners and/or stockholders and their owner-
ship interests in the above entities or any other company;
companies to whom they sell their customers’ accounts; the
relationship between McCormick Dray Lines and the above
entities; dates when they commenced operations; other busi-
nesses or corporations with which James Webb is associated;
and how the equipment (tractors and trailers) used by them
is registered and licensed and their ICC numbers are reg-
istered.
In support of the above request for information, Deivert
testified that his Union has represented the Employer’s unit
drivers for over 40 years; that the unit employees struck the
Employer during January 1993 for approximately 2 weeks;
and that he had observed and had been given the following
‘‘information’’ by employees ‘‘about other companies’’
using the Employer’s facility:
I witnessed McCormick Contracting trucks going into
. . . WCI, Webb Communications. I witnessed WCI
trucks going into McCormick terminals there at Muncy
and hauling freight, general freight. . . . McCormick
Contracting . . . is a nonunion trucking company that
Mr. Webb owns. . . . WCI . . . stands for Webb Com-
munications, Inc.
Deivert testified that before the strike there had been some
62 to 68 unit drivers at the Employer’s Muncy facility, and
that after the strike the Employer made ‘‘quite a few
changes’’ and the ‘‘numbers decreased.’’ He explained:
The changes were, the freight that we used to haul
we no longer hauled anymore. We started to see it
being run by the 15 individuals who crossed over the
[Union’s] picket line . . . [and are now] working for
McCormick Contracting. And also Mr. Webb created
the job for one of the gentlemen that crossed over the
line in our bargaining unit which was not in any agree-
ment. He created a local job for one of the individuals,
and at the time McCormick Contracting did not have
any local positions . . . out of the Muncy terminal.
. . . After the strike . . . McCormick Contracting start-
ed to get dispatches from the Muncy terminal. . . .
[T]hat didn’t happen prior to the strike . . . with these
local guys.
. . . .
I’m talking about the 15 individuals that crossed
over the picket line and went to work for McCormick
Contracting. They were supposed to work strictly out of
Stone Container in Williamsport. And they ended up
getting dispatched at the window off of the dispatch
sheet along with our Dray Lines drivers and actually
hauled some of our Dray Lines freight.
. . . .
Stone Container is an account Mr. Webb has. He
services them. They used to have their own trucks. And
now he has gone in there and supplied them with jock-
eys and his equipment, his tractors and drivers to jock-
ey the trailers in and out daily as they load them and
also deliver their loads.
Deivert observed:
[W]e were . . . losing jobs . . . ended up getting the
less desirable loads . . . we did not have a pick of the
whole dispatch . . . we were more or less assigned to
loads rather than being able to pick like we normally
picked . . . McCormick Contracting was getting the
preferential loads . . . When these individuals crossed
over . . . the trucks they were driving said Dray Lines
on them . . . . They [later] had pulled the Dray Lines
stickers off and put McCormick Contracting stickers on
the trucks.
See also General Counsel’s Exhibits 3 and 4 and transcript
pages 22–35, indicating that the ‘‘total road drivers went
down’’ after the strike.2
Deivert next testified that the Union and the Employer had
‘‘an agreement with respect to the local drivers after the
strike.’’ He explained:
We had an agreement with the 15 drivers that crossed
over [the Union’s picket line] . . . they would take the
Dray Lines jobs . . . at Stone Container . . . [W]e ne-
gotiated that he [Webb] would put the Stone drivers
there and they would work strictly out of Stone Con-
tainer, [but] that did not happen. [Further,] there was
. . . an agreement that there would be ten [unit local
drivers, but] we never did get the tenth one.
Deivert also spoke to ‘‘applicants applying for jobs at
McCormick Dray Lines’’ after the strike. According to one
‘‘applicant,’’
[H]e [had] applied for a job there [at McCormick] and
they told him they had two companies, one non-Union
and one Union. He had preferred to work Union be-
cause [he was] in the Union and asked . . . about the
benefits . . . [and] his pension. And they said . . .
McCormick Dray Lines does have a pension ; McCor-
157MCCORMICK DRAY LINES
3 On cross-examination, Deivert testified that the current 1991–
1994 collective-bargaining agreement between the parties contains
‘‘no-strike’’ provisions in art. XVII; that art. VII of the agreement
provides, inter alia, that ‘‘the work force shall consist of 16 road
drivers and 6 local drivers’’ and the ‘‘Company agrees to replace
any of the present 22 employees during the term of this agreement
with a new hire’’; that the Employer has gone ‘‘below the required
number of people as stated in the contract’’ although no grievance
was filed; that art. XXI of the agreement provides that ‘‘nothing
contained in this agreement shall be construed as a limitation on the
authority of the Company to use, either load or unload, owner-opera-
tors or brokers inside or outside of the 65-mile local radius’’; that
15 unit employees ‘‘resigned’’ from the Union during the January
1993 strike and ‘‘continued to work during the strike’’; and that the
parties entered into a strike settlement agreement providing, inter
alia, that the Employer’s ‘‘Stone Container work would be assigned
to people who were not part of the McCormick Dray Lines bargain-
ing unit.’’
mick Contracting is the one with a 401(k); McCormick
Dray Lines was not hiring but McCormick Contracting
was.
Deivert identified General Counsel’s Exhibit 5(a) as con-
taining an advertisement by McCormick Contracting appear-
ing in the Williamsport newspaper on January 4, 1993, for
‘‘truckdrivers’’ ‘‘to deliver freight to customers in the East-
ern United States.’’ General Counsel’s Exhibit 5(a) also con-
tains an advertisement by WCI for ‘‘over the road truck-
drivers.’’ Deivert identified General Counsel’s Exhibit 5(b)
as containing an advertisement by McCormick Contracting
appearing in the Williamsport newspaper on March 5 for
‘‘truckdrivers,’’ and General Counsel’s Exhibit 5(c) as con-
taining an advertisement by McCormick Contracting appear-
ing in the Williamsport newspaper on October 2 or 3 for
‘‘truckdrivers.’’ Applicants were instructed in the latter ad-
vertisement to ‘‘apply’’ at ‘‘McCormick Lines’’ in Muncy.
Deivert spoke to Patti Kessling, vice president of the Em-
ployer, ‘‘concerning the way the applicants were being
hired.’’ According to Deivert, Kessling said:
they were bring[ing] them [the applicants] in . . .
‘‘interviewing them and giving them their choice
whether they wanted to go Union or non-Union.’’
Deivert protested to Kessling that ‘‘we never had that prior
to the strike’’; ‘‘Dray Lines hired and we never heard about
the Contracting side.’’ Deivert also complained to Respond-
ent Employer’s president, Webb. On one occasion, Webb
said that the Employer ‘‘would run some Dray Lines ads.’’
Later, after Deivert again complained about the Employer’s
use of ‘‘McCormick Contracting’’ and then ‘‘McCormick
Dray Lines’’ advertisements, Webb acknowledged that ‘‘it’s
really a fictitious name’’ and ‘‘he had decided to just say
McCormick Lines was hiring.’’
Deivert also recalled, with respect to CK Services,
During the strike we had seen some of the CK Services
trucks cross our picket lines and on two occasions two
of their drivers were pulling trailers and we assumed
they were our loads . . . they were pulling trailers in
and out of our picket lines . . . we normally didn’t see
them. And . . . talking to Herm Chilson, Tom Mont-
gomery and the other drivers, they made me aware of
CK Services and what it was . . . it was supposed to
be Jim Webb’s wife’s company in New Jersey.
Deivert also spoke with Gordon Scott, business agent for
Teamsters Local 560, during the fall of 1993. Deivert ex-
plained to Scott ‘‘the problems . . . with the strike and try-
ing to get [his] people back to work . . . and that some of
[Scott’s] people were in there’’ at the Muncy facility. Scott
then apprised Deivert that CK Services was ‘‘under a Team-
sters contract’’; ‘‘they had had the same problems with CK
Services . . . the Company had tried to open a non-Union
trucking outfit in the same building’’; the nonunion company
was McCormick Contracting; and the Union ‘‘had filed
charges.’’
Deivert also recalled, with respect to WCI, that during the
1993 strike, the Union ‘‘set up a picket line at the WCI
building.’’ He then observed and pickets also related to him
that ‘‘McCormick Contracting’’ trucks ‘‘were going in and
out there’’ and, on one occasion, a WCI truck was ‘‘pulling
[a] McCormick trailer.’’ WCI trucks also ‘‘came into’’
McCormick Dray Lines facility and McCormick Dray Lines
trucks went into the WCI facility. After the strike, he ob-
served McCormick Contracting trucks ‘‘doing the same type
of work.’’
Deivert also recalled, with respect to Avis Truck Service,
that he had observed after the 1993 strike that the Avis
Truck Service office was ‘‘adjacent to the Dray Lines of-
fice’’ in the Employer’s same facility at the Muncy terminal;
‘‘there’s just a door that separates them’’; the same ‘‘recep-
tionist’’ serviced both entities; and ‘‘Avis Truck Service was
part of the dispatch operation there in the dispatch office.’’
In addition, as Deivert noted, the current collective-bargain-
ing agreement between the Union and the Employer provides
(G.C. Exh. 2, art. XX):
In the event that the Company shall transfer its operat-
ing authority to Avis Truck Services, Inc., it shall im-
pose as a condition of said transfer a requirement that
Avis . . . shall, in purchasing said authority, recognize
and be bound by the terms of this agreement.
Further, Deivert was also receiving complaints from the
unit drivers that they were now being ‘‘assigned’’ ‘‘jobs’’ in-
stead of being allowed ‘‘to pick [jobs] in seniority order.’’
Deivert met with Webb. He protested to Webb that he had
‘‘come to the conclusion that they [the other named business
entities] were doing our bargaining unit work’’ and that the
Employer ‘‘was trying to establish a double breasted oper-
ation.’’ Deivert related to Webb ‘‘why’’ he was submitting
the above information request. Deivert needed this informa-
tion to file a grievance under the current collective-bargain-
ing agreement. Webb denied Deivert’s claim of a ‘‘double
breasted operation.’’ Webb, however, informed Deivert that
‘‘I [Webb] would be a fool to give you any information or
answer any of them questions.’’3
Gordon Scott, business agent and trustee for Teamsters
Local 560 in Union City, New Jersey, testified that his local
has a collective-bargaining agreement with C&K Services
(also appearing as CK Services in the record); that General
Counsel’s Exhibit 6 is a 1991 arbitration award arising out
of that agreement; that during September or October 1993,
Deivert, president and business representative of sister Local
764, had informed him ‘‘that he was having a problem with
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McCormick Dray Lines’’ and ‘‘asked if [Scott] had any simi-
lar problems’’; and that Scott then apprised Deivert of the
1991 award in favor of Local 560. As General Counsel’s Ex-
hibit 6 shows, the arbitrator found in that proceeding that
C&K Services had violated its agreement with Local 560 by
refusing to bargain with or recognize the Union as bargaining
agent for delivery employees at its Linden, New Jersey facil-
ity; by failing to notify the Union when delivery employees
were hired at the Linden facility; and by refusing the Union
the right to send applicants for new delivery jobs at the Lin-
den facility. The arbitrator noted:
GHM Enterprises is owned and operated by James A.
Webb, who is president and sole stockholder of James
A. Webb, Inc. He is also the husband of C. Webb, the
president of the Employer [C&K Services]. In addition
to owning GHM Enterprises, James A. Webb also owns
. . . McCormick Contracting, McCormick Dray Lines,
Avis Truck Services, McCormick Air Freight and
Lycoming Sales And Leasing, Inc. . . . James A.
Webb, Inc., the parent company of the above compa-
nies, was founded in 1983 and its corporate offices are
located in Muncy, Pennsylvania. The Employer utilizes
various equipment, such as tractor trailers from McCor-
mick Contracting and Avis Truck Lines, etc., and is
billed accordingly by each particular company for such
service.
J. Webb, the owner of McCormick Contracting in
Linden and GHM Enterprises, is an active participant in
the management and control of the Employer’s [C&K
Services] operation in Teterboro. While it may be that
C. Webb, his wife, signs all documents, including the
[collective-bargaining agreement], it is clear from the
evidence that it is J. Webb who makes the decisions.
It is difficult to comprehend how an individual who
acts as chief spokesperson in all negotiations . . . and
makes all decisions regarding conditions of employ-
ment, and is involved with disciplinary matters with the
Union, can testify that McCormick Contracting and this
Employer are separate and distinct business entities.
This is the same individual, J. Webb, who admitted that
it was his decision to take freight away from his other
companies and give it to this Employer. It was also
J. Webb who then transferred the same freight to
McCormick Contracting in Linden. The vehicle for
these arbitrary transfers of freight at whim is GHM en-
terprises, which is also owned and controlled by J.
Webb. It is apparent . . . that while J. Webb may not
own stock or sign any documents on behalf of the Em-
ployer, it is he who decides what does and what does
not happen at the Employer’s Teterboro facility, as well
as his other companies, including McCormick Contract-
ing of Linden. . . . McCormick Contracting of Linden
is the alter ego of this Employer.
Thomas Montgomery is a driver for Respondent Employer
McCormick Dray Lines and has also served as union stew-
ard. Montgomery testified that he was involved in the 2-
week strike during January 1993. He observed CK Services
trucks ‘‘going in and out of the Muncy terminal’’ during and
shortly after the strike. He also observed ‘‘McCormick Con-
tracting trucks located at the WCI building in Williamsport’’
‘‘from the moment we came off the strike up to the
present.’’ During the late summer of 1993, he observed from
viewing the Employer’s dispatch sheets at the Muncy facility
that ‘‘there were two sheets,’’ ‘‘one was a Union driver dis-
patch sheet and the other one was for the [non-Union] driv-
ers,’’ ‘‘the non-Union Company . . . [was] McCormick Con-
tracting.’’ He used, before the strike, ‘‘equipment leased to
us from the Avis Equipment Company,’’ and he ‘‘was using
different equipment after the strike.’’ He explained that ‘‘we
were displaced from our regular units [equipment]’’ which
‘‘was reassigned to another individual’’ from ‘‘McCormick
Contracting.’’ Later, during the fall of 1993, he attended a
union meeting where the union employees complained ‘‘that
the Dray Lines lost a lot of our work to McCormick Con-
tracting drivers and . . . we were displaced from our regular
units . . . trucks’’ and ‘‘given less desirable units to run.’’
Deivert was apprised of the above observations.
Herman Chilson is also a driver for Respondent Employer
McCormick Dray Lines. He observed that ‘‘after the strike’’
‘‘we lost Stone Container, a lot of freight we were hauling
is being hauled by McCormick Contracting,’’ McCormick
Contracting ‘‘is hauling’’ work ‘‘that has traditionally been
McCormick Dray Lines’ work.’’ Chilson testified:
Q. Now, with respect to . . . Stone Container, appar-
ently there were about 15 [unit] drivers who switched
from McCormick Dray Lines to McCormick Contract-
ing?
A. Yes.
Q. For solely the Stone Container work?
A. That was the way I understood it, yes.
Q. Are those 15 drivers doing work other than the
Stone Container work?
A. Yes.
Q. What work are they doing besides Stone Con-
tainer?
A. They are all freight.
He has also observed CK Services trucks ‘‘after the strike’’
‘‘in the yard’’ at ‘‘the Muncy terminal.’’ He too related the
above observations to Deivert.
James Webb testified for Respondent Employer. In 1984,
J. A. Webb, Inc. purchased several companies from G. Henry
McCormick, and McCormick Dray Lines was one of those
companies. James Webb is president of both J. A. Webb,
Inc. and McCormick Dray Lines. McCormick Dray Lines is
a common carrier operating under the Interstate Commerce
Commission (ICC). (See C.P. Exh. 1.) The Union, Teamsters
Local 764, has represented McCormick Dray Lines’ employ-
ees since about 1953, and the parties have entered into suc-
cessive collective-bargaining agreements. The current collec-
tive-bargaining agreement between the parties, as noted, is
effective from November 25, 1991, to November 24, 1994.
(See G.C. Exh. 2.) McCormick Contracting Company, Inc.,
another of the acquired companies from G. Henry McCor-
mick, is authorized by ICC to operate as a contract carrier
by motor vehicle in interstate or foreign commerce over ir-
regular routes under continuing contracts with GHM Enter-
prises, Inc. of Muncy, Pennsylvania. GHM Enterprises is
similarly another acquired company of the Employer. (See
C.P. Exh. 2 and G.C. Exh. 6.)
James Webb is sole owner of Webb Communications, Inc.
(WCI), and that Company has a collective-bargaining agree-
159MCCORMICK DRAY LINES
ment with Graphic Communications International Union
Local No. 160M, effective from February 1, 1992, through
January 31, 1995. (See C.P. Exh. 4.) WCI ‘‘prints newspaper
type products and then mails them through the U.S. Mail.’’
James Webb asserted that WCI ‘‘does not . . . do any over
the road [or] local trucking’’ of ‘‘freight,’’ however, it does
‘‘local trucking’’ ‘‘with a parcel type van.’’ In addition, CK
Services, Inc. is owned by James Webb’s wife, Carol Webb.
CK Services has a collective-bargaining agreement with
Teamsters Local Union No. 560, effective from April 1,
1991, to April 1, 1994, renegotiated thereafter for an addi-
tional term. CK Services ‘‘services Stone Container in
Teterboro, New Jersey.’’ (See C.P. Exh. 5.)
As noted, McCormick Dray Lines’ employees struck the
Employer for about 2 weeks during January 1993. Webb
identified Charging Party’s Exhibit 6 as ‘‘a document that
the Companies offered the Union when they came back to
work.’’ Charging Party’s Exhibit 6, unsigned and dated Janu-
ary 29, 1993, provides, inter alia,
6. The Union agrees not to contest in any way jobs
associated with Stone Container, Williamsport, and
their contract with McCormick Contracting Co., Inc.
7. The Company will work with the Union to place
the returning drivers who formerly hauled Stone Con-
tainer into permanent classifications. The Company is
open to any suggestions from the Union as how these
employees can best be assimilated into the work force
in the most expedient manner.
James Webb testified that Charging Party’s Exhibit 6 is
the strike settlement agreement between the parties, that
Stone Container had a ‘‘contract’’ with GHM Enterprises
and McCormick Contracting Co., Inc. and ‘‘there were 15 or
16 jobs at Stone Container,’’ that the Union had picketed
‘‘Stone Container during the strike,’’ and that
Stone Container issued us an ultimatum. Stone Con-
tainer took us to task because their contract was with
GHM Enterprises and McCormick Contracting and they
couldn’t understand why they were being subjected to
picketing by McCormick Dray Lines employees . . . .
[They] put us on notice that we either service them
. . . in the fashion their contract called for or they
would find someone else to service them.
James Webb claimed that no ‘‘driver’’ had been ‘‘laid off’’
who was ‘‘covered by the Union’s collective bargaining
agreement.’’ Further, James Webb claimed that ‘‘if you’re
going to haul freight under those ICC rights of McCormick
Dray Lines, that freight has to be hauled under one of your
published tariffs.’’ (See also Tr. pp. 96–99 and C.P. Exhs.
7–9.) In addition, James Webb identified Charging Party’s
Exhibit 10 as a letter from Respondent Employer dated De-
cember 31, 1992, sent to Union President and Business Rep-
resentative Deivert, stating, inter alia, that the ‘‘Company
will consider’’ any strike by the Union ‘‘a material breach
of contract and will take every lawful action to defend itself
and continue to operate the business.’’
James Webb asserted that Avis Truck Service, Inc. is a
Pennsylvania corporation ‘‘that buys, sells, leases and main-
tains rolling stock, primarily tractors and trailers,’’ employs
‘‘sales people, administrative people and mechanics,’’ and
‘‘is not involved in the transportation of freight.’’ James
Webb added that the Union ‘‘does not represent any mechan-
ics’’ as part of the McCormick Dray Lines unit, and Avis
Truck Service ‘‘does not do any work . . . covered by the
Dray Lines contract with the Teamsters Local Union.’’ James
Webb acknowledged that Avis Truck Service was also pur-
chased by him from G. Henry McCormick when he ‘‘pur-
chased Dray Lines and Contracting.’’
James Webb next identified Charging Party’s Exhibit 11
as purportedly containing ‘‘answers to’’ Deivert’s ‘‘question-
naire,’’ which is the subject of this proceeding. According to
James Webb, ‘‘these answers respond to some of the ques-
tions,’’ and ‘‘respond to questions concerning McCormick
Dray Lines in a limited fashion in regard to CK Services,
Avis Truck Service and Webb Communications.’’ This lim-
ited information was first made available to the Union during
the examination of James Webb at this hearing. James Webb
asserted that ‘‘there is no such company’’ identified in the
‘‘questionnaire’’ as ‘‘McCormick Contracting of Massachu-
setts’’ or ‘‘McCormick Contracting of South Carolina.’’ He
insisted that there is only ‘‘McCormick Contracting’’ of
Pennsylvania.
James Webb cited provisions in the 1991–1994 collective-
bargaining agreement with the Union providing, inter alia,
that the ‘‘work force shall consist of 16 road drivers and 6
local drivers’’ (G.C. Exh. 2, p. 29), and for ‘‘use of owner
operators’’ (p. 47). James Webb acknowledged that the con-
tractual references to 16 road drivers and 6 local drivers are
‘‘limitations’’ or ‘‘minimum numbers’’ and there were
‘‘more people doing this unit work than is limited in this
contract.’’ James Webb assertedly relied on these contractual
provisions in refusing to supply the requested information. In
addition, James Webb also relied on his claim that ‘‘some
of this [requested] information’’ is ‘‘privileged, confidential,
commercial information which would be prejudicial to the
Company’’; ‘‘a lot of that information is extremely propri-
etary information . . . extremely sensitive information’’; and
the Employer assertedly is ‘‘under contract with several of
our customers not to divulge that type of information.’’
James Webb asserted, as noted, that McCormick Dray
Lines ‘‘never laid an employee off’’ and, in addition, that
‘‘the numbers of drivers’’ went ‘‘down after the strike’’ be-
cause the ‘‘market place’’ was ‘‘in a recessionary time’’ and
‘‘18 McCormick Dray Lines drivers [had] resigned from the
Union and went to work for McCormick Contracting’’ ‘‘be-
cause of the strike.’’ According to James Webb,
I [Webb] recollect that there were 18 drivers who re-
signed from the Union and McCormick Dray Lines. In
addition, there were another . . . roughly 15 jobs at
Stone Container, that Stone Container was under con-
tract [with] McCormick Contracting, and as I noted ear-
lier Stone Container just absolutely insisted that
McCormick Contracting provide them the service. So,
that is 18 and 15 . . . 33. There were roughly 60 driv-
ers in McCormick Dray Lines at the time of the strike
. . . Right now today I believe the number on the ros-
ter at McCormick Dray Lines is 29.
James Webb denied in part testimony of Union Represent-
ative Deivert with respect to the identity of various unit em-
ployees. (See Tr. pp. 108–109.) He insisted that there were
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
no ‘‘guarantees for nine and ten local drivers.’’ The strike
settlement agreement, as quoted above, stated that ‘‘the
Company will work with the Union to place the returning
drivers who formerly hauled Stone Container’’ and ‘‘is open
to any suggestions from the Union,’’ ‘‘and if I [James Webb]
am not mistaken we brought the last couple back and put
them to work locally.’’ James Webb claimed that McCor-
mick Dray Lines has in fact ‘‘hired maybe half a dozen new
drivers’’ during 1994 and ‘‘I don’t believe there’s been any-
one hired in McCormick Contracting.’’ And, James Webb in-
sisted that he ‘‘told Mr. Deivert on many occasions any driv-
ers that he had for us to hire . . . to send them to me per-
sonally . . . I’ll hire any competent qualified drivers’’—
‘‘there is a driver shortage today.’’
James Webb also testified:
Q. This Webb Communications, Inc. advertisement
for a truck driver, does Webb Communications have
any truck drivers in its bargaining unit?
A. No.
Q. Why was that advertisement put in?
A. This was January 4, 1993 and this was after it
had been reported . . . that they [the Union] didn’t
really feel bound to honor the terms of the contract and
they were going to strike us any way. . . . I told the
people at Webb Communications that they better make
plans to be able to get their own products to market and
not depend on anybody else . . .
James Webb, when asked ‘‘about CK Services trucks at the
Muncy terminal during the strike,’’ responded:
Not to my knowledge. I couldn’t imagine that trucks of
another Teamster Local would come and cross the pick-
et line. I just can’t imagine that, but I did not see it.
On cross-examination, James Webb acknowledged that
McCormick Dray Lines does ‘‘deliver freight’’ into the
‘‘WCI loading dock,’’ and that is also ‘‘true of McCormick
Contracting.’’ He acknowledged that he did ‘‘not know’’ ‘‘if
anyone [had] ever signed off on’’ Charging Party’s Exhibit
6, the so-called strike settlement agreement between the par-
ties. He acknowledged that ‘‘McCormick Contracting has an
operation in Rocky Mountain, North Carolina,’’ and ‘‘before
the strike most of the McCormick Contracting drivers were
dispatched out of the North Carolina terminal.’’ He acknowl-
edged that ‘‘after the strike . . . all if not most McCormick
Contracting drivers are being dispatched from the Muncy ter-
minal.’’ He acknowledged that ‘‘we serviced ADS at Lud-
low, Massachusetts . . . in 1990 or 1991’’ under ‘‘McCor-
mick Contracting.’’ He acknowledged that McCormick Dray
Lines did ‘‘Stone’s work . . . before the strike’’ although as-
sertedly ‘‘the contract has always been held by GHM Enter-
prises and McCormick Contracting.’’ He acknowledged that
‘‘once [he] received an account for McCormick Contracting
that McCormick Dray Lines would also do that work.’’ Fur-
ther, he acknowledged that he previously did not supply any
of the requested information to the Union and previously did
not ‘‘propose any specific language dealing with confiden-
tiality of any’’ of the requested information.
Much of the testimony and evidence summarized above,
insofar as relevant or pertinent to the narrow issue raised
here, is not disputed. Further, I credit the above testimony
of Deivert, Scott, Montgomery, and Chilson. Their testimony
is in significant part mutually corroborative, substantiated by
admissions of the Employer’s president, Webb, and substan-
tiated by undisputed documentary evidence. And, relying on
demeanor, they also impressed me as trustworthy and reliable
witnesses. On the other hand, I was not impressed with the
testimony of Webb. His testimony was at times incomplete,
unclear, and evasive. He did not impress me as a reliable or
trustworthy witness. Insofar as his testimony conflicts with
the above testimony of Deivert, Scott, Montgomery, and
Chilson and the documentary evidence of record, I credit the
testimony of the latter witnesses and documentary evidence
as more complete and reliable.
Discussion
The sole issue for resolution here is whether or not the
General Counsel has sufficiently demonstrated the requisite
relevancy and necessity for the Union’s requested informa-
tion. As restated in Maben Energy Corp., 295 NLRB 140
(1989),
Under settled principles of labor law, ‘‘an employer is
obligated to provide a union with requested information
if there is a probability that such data is relevant and
will be of use to the union in fulfilling its statutory du-
ties and responsibilities as the employees’ exclusive
collective bargaining representative.’’ The issue in such
a case is ‘‘whether the requested information had prob-
able and potential relevance to the union’s statutory ob-
ligation to represent employees within the contractual
unit’’; ‘‘the fact that the requested information may re-
late to employers and employees outside the rep-
resented bargaining unit does not by itself negate its
relevance’’; for, whatever the eventual merits of the
union’s claim that [its] contract [is] being violated and
[its] bargaining unit unlawfully diminished, [it is] enti-
tled to the requested information under the discovery
type standard announced in NLRB v. Acme Industrial
Company, 385 U.S. 432, 437 (1967), to judge for
[itself] whether to press [its] claims in the contractual
grievance procedures or before the Board or
Courts. . . . And, where a union seeks information to
establish an alter ego or single employer relationship, it
is not required to prove the existence of such relation-
ship, rather it is sufficient ‘‘that General Counsel has
established that the union had an objective factual basis
for believing’’ that one entity is an ‘‘alter ego or single
employer of the other. [See cases cited.]
In Maben, the Board agreed that ‘‘probable and potential rel-
evance’’ had been ‘‘amply demonstrated.’’ The Board held
that the employer’s ‘‘refusal’’ to supply the requested infor-
mation there was not ‘‘justified’’ because assertedly ‘‘some
of the requested information was confidential,’’ noting, inter
alia, that
[R]espondents raised confidentiality concerns for the
first time at the hearing and at no time complied with
the duty to come forward with some offer to accommo-
date its concerns with its bargaining obligation.
Applying the above-settled principles of law to the instant
case, I find and conclude that here too the General Counsel
161MCCORMICK DRAY LINES
has sufficiently demonstrated ‘‘probable and potential rel-
evance’’ for the requested information. Union President
Deivert requested the above information because he had
‘‘come to the conclusion that’’ the Employer ‘‘was trying to
establish a double breasted operation’’ and that the Employer
and its other named business entities ‘‘were doing our bar-
gaining unit work or were involved in it.’’ Deivert needed
the requested information in order to file a grievance under
the current collective-bargaining agreement. Deivert detailed
the basis for his ‘‘conclusion.’’ His testimony was corrobo-
rated by Scott, Montgomery, and Chilson. McCormick Con-
tracting trucks were observed going into WCI’s facility; WCI
trucks were observed going into McCormick Dray Lines fa-
cility ‘‘hauling . . . general freight’’ and ‘‘pulling [a]
McCormick trailer’’; McCormick Contracting ‘‘started get-
ting dispatches from the Muncy terminal’’ of McCormick
Dray Lines; the total unit employees of McCormick Dray
Lines significantly decreased after the strike and McCormick
Contracting drivers were ‘‘getting dispatched at the window
off of the dispatch sheet with . . . Dray Lines drivers’’ and
they ‘‘actually hauled [unit] Dray Lines freight’’; McCor-
mick Dray Lines unit employees ‘‘ended up getting less de-
sirable loads,’’ ‘‘did not have a pick of the whole dispatch,’’
and McCormick Contracting drivers got ‘‘the preferential
loads,’’ using the same ‘‘trucks’’ with ‘‘McCormick Con-
tracting stickers’’ substituted for ‘‘Dray Lines’’; job appli-
cants were being told that the Employer had two companies,
one union (McCormick Dray Lines) and one nonunion
(McCormick Contracting), they were interviewed by the
same person or persons and given the choice between
‘‘want[ing] to go Union or non-Union’’; job advertisements
for McCormick Dray Lines and McCormick Contracting
were used interchangeably and were ultimately grouped
under one ‘‘fictitious name,’’ ‘‘McCormick Lines’’; CK
Services drivers were also ‘‘pulling trailers in and out of [the
Union’s] picket lines’’ ‘‘hauling’’ unit work; and Avis Truck
Service used the ‘‘same receptionist’’ and shared the same
facility with McCormick Dray Lines and ‘‘was part of the
dispatch operation in the office’’ at Muncy.
Further, as unit driver Montgomery explained, he had ob-
served CK Services trucks ‘‘going in and out of the Muncy
terminal’’; ‘‘McCormick Contracting trucks [were] located at
the WCI building in Williamsport’’ ‘‘from the moment we
came off the strike up to the present’’; and ‘‘there were two
[dispatch] sheets [at the Muncy terminal], one was a Union
driver dispatch sheet and the other one was for the [non-
Union] drivers,’’ ‘‘the non-Union Company . . . [was]
McCormick Contracting.’’ He had used, before the strike,
‘‘equipment leased to us from the Avis Equipment Com-
pany,’’ and he ‘‘was using different equipment after the
strike.’’ He explained that he was ‘‘displaced from our regu-
lar units [equipment]’’ which ‘‘was reassigned to another in-
dividual’’ from ‘‘McCormick Contracting.’’ In short, he and
his unit coworkers had observed and complained to the
Union ‘‘that the Dray Lines [had] lost a lot of our work to
McCormick Contracting drivers and . . . we were displaced
from our regular units . . . trucks’’ and ‘‘given less desirable
units to run.’’ In addition, unit driver Chilson confirmed that
nonunion McCormick Contracting ‘‘is hauling’’ freight ‘‘that
has traditionally been McCormick Dray Lines work,’’ and
was thus performing unit work ‘‘besides the Stone Con-
tainer’’ work, which work assertedly was part of a strike set-
tlement.
Deivert’s ‘‘conclusion’’ was further confirmed by his con-
versation with sister Teamsters Local Representative Scott
and the arbitration award obtained by that local pertaining to
CK Services. As detailed in that award, James Webb owned
and controlled the various entities involved in this proceed-
ing and engaged in ‘‘arbitrary transfers of freight at whim’’
among these entities similarly using McCormick Contracting
to evade his contractual obligations with the Union.
In sum, the General Counsel has sufficiently demonstrated
the requisite ‘‘probable and potential relevance’’ for the re-
quested information; Union President Deivert reasonably had
requested this information because he had ‘‘come to the con-
clusion that’’ the Employer ‘‘was trying to establish a double
breasted operation’’ and that the Employer and its other
named business entities ‘‘were doing . . . bargaining unit
work or were involved in it’’; and Deivert needed this infor-
mation in order to file a grievance under the current collec-
tive-bargaining agreement. Respondent Employer argues,
inter alia, that the above various named entities are separate
corporations, and that its collective-bargaining agreement
with the Union and its so-called strike settlement agreement
with the Union privileged the conduct relied on here. How-
ever, the Board is not now being called on to resolve the
merits of this controversy, and this record amply shows a
reasonable basis for the Union’s assertion that the Employ-
er’s alleged transfer of unit work was not privileged by the
above-cited agreements and related circumstances. Further,
Respondent Employer argues that ‘‘some of this [requested]
information’’ is ‘‘privileged, confidential, commercial infor-
mation which would be prejudicial to the Company’’; ‘‘a lot
of that information is extremely proprietary information . . .
extremely sensitive information’’; and the Employer assert-
edly is ‘‘under contract with several of our customers not to
divulge that type of information.’’ However, elsewhere, the
Employer acknowledges that it previously did not supply any
of the requested information to the Union and did not ‘‘pro-
pose any specific language dealing with confidentiality of
any’’ of the requested information. As Union Representative
Deivert credibly recalled, he had protested to Company
President Webb that he had ‘‘come to the conclusion that
they [the named business entities] were doing our bargaining
unit work’’ and that the Employer ‘‘was trying to establish
a double breasted operation.’’ Deivert had related to Webb
‘‘why’’ he was submitting the above information request.
Webb informed Deivert that ‘‘I [Webb] would be a fool to
give you any information or answer any of them questions.’’
I therefore find and conclude that Respondent Employer
has violated its bargaining obligation under Section 8(a)(5)
and (1) of the Act by failing and refusing to provide the
above-requested information necessary for and relevant to the
Union’s performance of its duties as the exclusive collective-
bargaining agent of an appropriate bargaining unit of the Em-
ployer’s employees. Further, with respect to the Employer’s
general and unsubstantiated claims of ‘‘confidentiality,’’ I
find and conclude on the credible evidence of record that the
Employer ‘‘at no time complied with [its] duty to come for-
ward with some offer to accommodate its concerns with its
bargaining obligation.’’ See Maben, supra.
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
5 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in com-
merce as alleged.
2. Charging Party Union is a labor organization as alleged.
3. Respondent Employer violated Section 8(a)(5) and (1)
of the Act by failing and refusing to bargain in good faith
with the Union as the exclusive collective-bargaining agent
of an appropriate unit of its local and road driver employees
by refusing to furnish the Union with certain information re-
quested by the Union on December 28, 1993 (Exh. A an-
nexed to the complaint filed here), which information is nec-
essary for and relevant to the Union’s performance of its
function as exclusive collective-bargaining agent of the unit
employees.
4. The unfair labor practice found above affects commerce
as alleged.
REMEDY
To remedy the unfair labor practice found above, Re-
spondent Employer will be directed to cease and desist from
engaging in such unlawful conduct or like and related con-
duct and to post the attached notice. Affirmatively, to effec-
tuate the purposes and policies of the Act, Respondent Em-
ployer will be directed to provide the Union with the infor-
mation requested by the Union on December 28, 1993 (Exh.
A annexed to the complaint filed here), which information is
necessary for and relevant to the Union’s performance of its
function as exclusive collective-bargaining agent of the unit
employees.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, McCormick Dray Lines, Inc., Muncy,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain in good faith with the
Union, Teamsters Local Union No. 764, International Broth-
erhood of Teamsters, AFL–CIO as the exclusive collective-
bargaining agent of an appropriate unit of its local and road
driver employees by refusing to furnish the Union with cer-
tain information requested by the Union on December 28,
1993 (Exh. A annexed to the complaint filed here), which in-
formation is necessary for and relevant to the Union’s per-
formance of its function as exclusive collective-bargaining
agent of the unit employees.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Provide the Union with the information requested on
December 28, 1993 (Exh. A annexed to the complaint filed
here), which information is necessary for and relevant to the
Union’s performance of its function as exclusive collective-
bargaining agent of the unit employees.
(b) Post at its facility in Muncy, Pennsylvania, copies of
the attached notice marked ‘‘Appendix.’’5 Copies of the no-
tice, on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail and refuse to bargain in good faith with
Teamsters Local Union No. 764, International Brotherhood
of Teamsters, AFL–CIO as the exclusive collective-bargain-
ing agent of an appropriate unit of our local and road driver
employees by refusing to furnish the Union with certain in-
formation requested by the Union on December 28, 1993
(Exh. A annexed to the complaint filed here), which informa-
tion is necessary for and relevant to the Union’s performance
of its function as exclusive collective-bargaining agent of the
unit employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL provide the Union with the information re-
quested on December 28, 1993 (Exh. A annexed to the com-
plaint filed here), which information is necessary for and rel-
evant to the Union’s performance of its function as exclusive
collective-bargaining agent of the unit employees.
MCCORMICK DRAY LINES, INC.