Navajo Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Dec 31, 1969

180 N.L.R.B. 516 (N.L.R.B. 1969)

516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Navajo Freight Lines, Inc. and International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local
Union No. 961 . Case 27-CA-2532
December 31, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On May 14, 1969, Trial Examiner Benjamin B.
Lipton issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in certain unfair labor practices alleged in
the complaint and recommending dismissal as to
them and of the backpay pleading also entered by
the General Counsel. Thereafter, the General
Counsel and the Charging Party filed exceptions to
the Trial Examiner's Decision and supporting briefs,
and the Respondent filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudical error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified herein.'
In this case the General Counsel has alleged that
the Respondent violated its bargaining obligations
by unilaterally, and without notifying or bargaining
with the Charging Party, entering into leasing
arrangements which resulted in the transfer and loss
of work to the truckdrivers represented by that
union. The leased work involved the hauling of
Government ammunition from Crane, Indiana, via
St. Louis, Kansas City, and Colorado Springs into
Denver, as part of a transcontinental run
culminating on the Far West Coast. It further
appears that the Respondent itself did not hold the
operating authority from the Interstate Commerce
Commission (ICC) to carry such freight from Crane
to Colorado Springs, which constituted the major
portion of the route. The H. J. Jeffries Truck Lines,
Inc.,' did, however, hold ICC authority for this
portion. Accordingly, in February 1968, the
Respondent and Jeffries, as a joint venture, entered
a bid to the Government to transport ammunition
from the Crane depot. In this connection the
Respondent undertook to supply the equipment and
drivers, who were to operate under Jeffries' name
'In view of our dismissal of the complaint , we find it unnecessary to pass
upon the Trial Examiner's discussion concerning the separate backpay
pleading of the General Counsel.
for that portion of the route for which the latter
held ICC authority and under the Respondent's
name for the remainder of the trip. For economic
reasons the Respondent determined not to use its
own equipment and drivers in this joint venture. On
May 8, 1968, the Respondent leased both tractors
and drivers from Truck Contracting, Inc., of
Englewood, Colorado.' The joint venture
commenced operations on May 31, 1968.
Considerable evidence has been introduced into
the record with respect to provisions of the National
Master Freight Agreement and Supplemental
Agreements under which the Teamsters
International Union and its Locals including Local
961, have bargained for many years with various
employer associations, association members, and
individual employers, including the Respondent.
These provisions relate specifically to the
subcontracting of work, grievance procedures,
identification of the bargaining unit, and
jurisdictional disputes. The parties are in substantial
disagreement as to the interpretation of these terms
with respect to the Respondent's contractual and
statutory duty to bargain with the Charging Party
before such leasing of tractors and drivers as
occurred when the Respondent entered into the
agreement with Truck Contracting to fulfill all the
transportation needs of the Navajo-Jeffries joint
venture. Obviously, in this proceeding we need not
and do not pass upon any jurisdictional claim of
Local 961 to perform the disputed work because of
custom, tradition, or practice in the industry. Nor is
the Board concerned with whether such work was or
was not allocated to Local 961 by the Teamsters
International Union as an internal union measure.
Nor is it controlling, in determining whether the
Respondent is in violation of Section 8(a)(5), that
the drivers and equipment used in the Crane
operation may have been based or "domiciled" in
Denver. As the Trial Examiner found, the critical
issue in this case revolves around whether the
leasing of Truck Contracting trucks and the use of
its drivers for the joint venture resulted in such a
material change in the terms and conditions of
employment of the employees in the bargaining unit
as to impose a bargaining obligation on the
Respondent under the principles stated by the
Supreme Court in Fibreboard Paper Products Corp.
v. N.L.R.B., 379 U.S. 203. There the Court held
that the replacement of employees in the existing
bargaining unit with those of an independent
contractor to do the same work under similar
conditions of employment is a statutory subject of
collective bargaining . In the instant case , however,
the leasing arrangement did not result in the
discharge or layoff of any Navajo drivers
represented by Local 961, in their replacement by
other drivers, or in any impairment of work
'Hereinafter called Jeffries
'Hereinafter called Truck Contracting
180 NLRB No. 66
NAVAJO FREIGHT LINES, INC.
opportunities they might normally and reasonably
have anticipated. Rather, as a consequence of its
inability to bid for the Crane operation on its own
authority, the Respondent entered into a new
business venture in conjunction with Jeffires. Even if
the Respondent could have supplied the joint
venture with its own drivers and equipment, as the
Charging Party desired, it does not follow that its
failure to do so and its unilateral action in leasing
tractors and drivers from Truck Contracting for this
purpose is a violation of the Fibreboard doctrine.
The duty to bargain concerning changes affecting
unit employees is not so broad as to encompass
every phase of an employer's several business
ventures. So far as appears from the record, the
Navajo-Jeffries joint venture was a new and separate
business enterprise for which the Respondent in its
normal business activity would be ineligible. The
mandate of Section 8(a)(5) and 8(d) does not require
an employer to bargain with respect to the
subcontracting of work where, as here, the work
cannot be performed by its own employees under
the conditions normally prevailing in the recognized
unit. Accordingly, we shall order that the complaint
be dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommendation of the Trial Examiner, and hereby
orders that the complaint and the backpay
proceedings be, and they hereby are, dismissed in
their entirety.
MEMBER BROWN, concurring:
The matters considered in this proceeding, in my
opinion, are more properly relegated to the provided
contract procedures and to the internal recourses of
the Teamsters International than to the complaint
machinery of the Act. The parties have established
within the framework of their contracts special
committees and procedures for the purpose of
resolving in final and binding form all
determinations of interlocal jurisdictional disputes.
A decision obtained through the utilization of such
machinery will resolve both the unfair labor practice
alleged and the jurisdictional issue in a manner
compatible with the purposes of the Act. In these
circumstances I believe that the policy of promoting
industrial peace and stability through
collective-bargaining warrants deferring the matter
to the procedures that the parties themselves have
voluntarily established under binding commitment.
Accordingly, I would dismiss the complaint without
deciding the merits of the controversy.
517
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Trial Examiner: This proceeding,
with all parties represented, was heard before me on
February 17-19, 1969, upon a complaint by the General
Counsel against the above-captioned Respondent. The
complaint alleges, in substance, that the Respondent
violated Section 8(a)(5) of the Act by subcontracting
certain work without consulting with the Charging Party.'
In its Answer, Respondent denied the alleged violation,
and the specifications in General Counsel's backpay
pleading.' At the hearing, all parties were afforded full
opportunity to present relevant evidence, to examine and
cross-examine witnesses, and to argue orally on the
record. Briefs filed by General Counsel and Respondent
have been duly considered.
Upon the entire record in the case, and from my
observation of the witnesses on the stand, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Navajo Freight Line, Inc., a New Mexico corporation,
is engaged in the interstate transportation of freight At
Denver, Colorado, among other locations, it maintains an
office and a terminal. Annually, Respondent derives gross
revenue in excess of $50,000 from its interstate
transportation operations. Respondent admits, and I find,
that it is engaged in commerce within the meaning of the
Act.
If. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No.
961, is a labor organization within the meaning of the
Act. Abbreviated references are made herein to the
Teamsters International and to its various local unions, in
particular to Local 961.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues in the Complaint Cases
The basic allegation of the complaint is that
Respondent, on and since May 8, 1968,' unilaterally and
without consultation with Local 961 "entered into leasing
arrangements which resulted in the transfer and loss of
work to the employees in the unit described" in the
complaint. Essential subsidiary questions are whether, on
the basis of the alleged appropriate unit or the existing
collective-bargaining agreement, - (a) Respondent was
obligated to bargain with Local 961 concerning such
leasing arrangements, and (b) Respondent in fact fulfilled
its bargaining duty under the Fiberboard' theory as raised
in the complaint.
'On July 5 and August 2, 1968, respectively, the original charge and
amended charge were filed and served by registered mail On October 31,
1968, General Counsel issued the Complaint and Notice of Hearing
'On January 10, 1969, a Backpay Notice of Hearing was issued for the
stated purpose of litigating , simultaneously with the alleged unfair labor
practices , the amounts of backpay due the affected employees
'All dates are in 1968, unless otherwise specified
4Fiberboard Paper Products Corp., 138 NLRB 550, enfd. 322 F.2d 411
(C.A.D C.), affd. 379 U S 203.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Backpay Case
As above noted, subsequent to the complaint, General
Counsel issued a Backpay Notice of Hearing , which in
effect consolidates in this single proceeding the issues of
the alleged unfair labor practices and determination of
specific amounts of backpay to be awarded employees
resulting from the alleged Section 8(a)(5) violation.' In the
document issued, which is not labeled a backpay
specification, General Counsel specifies that (1) the
affected employees entitled to backpay shall include all
over-the-road drivers employed during the backpay period
at Respondent ' s Denver terminal "on the wheel and slip
seat system;"' (2) the backpay period begins on May 8
and ends on August 1 (but this was narrowed at the
hearing to a period from May 31 to July 16); (3) an
appropriate measure of backpay is derived by taking the
total miles logged by the subcontractor and computing the
wages and other benefits due the affected employees in
accordance with the provisions of the union contract;' (4)
the specific amount due each of the affected employees is
derived by dividing the total amount of backpay by the
number of affected employees employed during the
backpay period; and (5) "the amounts of backpay due the
discriminatees" is subject to interest at 6 percent per
annum . In summary , General Counsel seeks an order for
specific backpay constituting purported earnings which
those listed as Denver-based drivers' would have received,
had they been permitted to perform the subcontracted
work , above and beyond their actual earnings during the
period in question.'
'Sec 102 52 of the Board 's Rules and Regulations provides - After the
entry of a Board order directing the payment of backpay or the entry of a
court decree enforcing such a Board order, if it appears to the regional
director that a controversy exists between the Board and a respondent
concerning the amount of backpay due which cannot be resolved without a
formal proceeding , the regional director may issue and serve on all parties
a backpay specification in the name of the Board ... In the alternative
and at his discretion , the regional director may , under the circumstances
specified above , issue and serve on the parties a notice of hearing only,
without the backpay specication , the hearing to be held before a trial
examiner . (Emphasis added ). General Counsel contends that the latter
alternative method has been invoked by the Regional Director in the
instant proceeding.
'In the complaint , the violation is alleged as affecting the employees in
an appropriate unit represented by Local 961. The record shows that
numerous employees of Respondent were "employed" at this terminal, or
"domiciled" in Denver, who were members of another local, or who
otherwise cannot be regarded as within the asserted unit. The "wheel and
slip seat system ," as here pertinent , involves a listing of drivers who signed
and time punched a daily roster upon arrival and upon assigned departure
with tractors to and from the Denver terminal . For the material period
from May 31 through July 16 , these rosters are in evidence (G.C. Exh
6A-6VV), and included therein are the names of many drivers not
appearing on a list of 87 Denver-based drivers (GC Exh . 7A and B) who
allegedly comprise the appropriate unit. In a number of instances on trips
into and out of Denver , a driver who is not on the latter list is paired in a
team with a driver who is on such list . Further, among the 87 listed
Denver- based drivers are 12 members of Local 710, having union
jurisdiction at Respondent 's terminal in Chicago , Ill. Local 710 is not a
party or otherwise represented herein , and Local 961 has not established a
basis for acting on behalf of Local 710 or its members in this proceeding
'However , General Counsel at the hearing reduced his request for
backpay to embrace only the contract mileage rate for drivers , i.e , to
forego the claim for any hourly pay and fringe benefits . "Difficulty in
computing other benefits" was given as the reason for such change of
position to withhold full backpay , assuming the alleged violation.
'At the hearing, General Counsel modified his position to exclude from
the fixed list of 87 drivers the names of Foster and Carter , who were
confined to special "bid" runs and would not have been available to
perform the subcontracted work However , in the specific computations
At the hearing, the Trial Examiner questioned the
procedural propriety of formally consolidating a backpay
proceeding with litigation of alleged unfair labor practices."
In support of such concededly unusual procedure, no
published precedent or final Board decision is cited by
General Counsel, nor appears to be available." However,
at the hearing General Counsel alluded to one prior
instance in which such an issue was raised - in House of
Carpets, Inc " There, a definitively reason Order was
issued by a trial examiner prior to the hearing in which he
denied the Respondent's motion to strike the backpay
Specification and Notice of Hearing which had been
combined for hearing with the complaint case." In
advance of the present hearing, Respondent was consulted
by General Counsel and agreed that, if such procedure is
permissible, it would make no objection to the joinder of
the backpay proceeding. In light of all the factors
tentatively shown, I permitted General Counsel to make
his record with respect to the backpay case. However,
Respondent's position expressed at the hearing and in its
brief is in substance that (a) it cannot fairly defend against
a formal claim for specific backpay in the absence of prior
unfair labor practice findings, and (b) in any event it is
which General Counsel submitted in his brief, for unexplained reasons
Foster and Carter are included , and a listed employee , Masters, is excluded
from the backpay claims.
'Respondent introduced evidence for the period from February through
August 1968 , and for the entire year 1967, showing on a weekly basis the
number of Denver-based drivers who received pay, the average wages paid
per driver , and the "moving average" pay (which strikes an average of the
preceding weeks shown .) Factors which would bear upon these figures
include the seasonal nature of the business , an intervening strike , and pay
raises . General Counsel did not undertake to refute this evidence, and
offered no data of his own to demonstrate that the drivers allegedly
affected by the subcontracting thereby lost any of their normal earnings.
Considering the entire record, an inference may reasonably be drawn from
Respondent 's evidence that during the alleged backpay period the number
of drivers utilized the amount of work, and the average weekly wages per
driver, on a group basis, did not materially vary from the norm.
"Cf. e.g, N.L.R.B. v. Deena Artware , Inc., 361 U S 398, 411-412
(concurring opinion of Mr . Justice Frankfurter ) "The Board's procedure
in unfair labor practice cases is first to hold a hearing to determine
whether an unfair labor practice was committed , and, if it was, whether it
would "effectuate the policies ' of the Act for the Board to order
reinstatement with back pay of any employees who were discharged Sec
10(c). In such a proceeding the Board does not concern Itself with the
amount of back pay actually owing . This is excluded from the proceeding
,in the interest of the efficient administration of the Act The determination
of specific liabilities may involve a protracted contest An employee who is
wrongfully discharged may, for example , not be entitled to back pay
because he failed to accept other employment Since the
determination that the discharge was wrongful is subject to review,
extensive proceedings to determine the amount of liability may be rendered
superfluous by reversal . And if the determination is sustained and becomes
final, it may be expedient for a respondent to reach agreement and avoid
further litigation. The propriety of this established two-stage procedure of
the Board is these back -pay cases is not in question . . . The separation of
that finding from the determination of amounts being an eminently
reasonable method of administering the Act , it is irrelevant that as yet
undetermined matters subsequent to the discriminatory discharge may in
fact disentitle some or all of the employees to receive payment ." (Emphasis
supplied.)
"But see , e.g., Teamsters and Allied Workers , Hawaii Local 996, etc,
134 NLRB 1556, 1563, 1602-03.
"Cases 28-CA-1447, 1469, 1515, and 28-RC-1572.
"The formal public file in the closed proceeding reveals that only the
unfair labor practice issues were ultimately litigated , and that the
respondent formally complied with a typical Section 8(a)(3) order
recommended in the Trial Examiner 's Decision (May 23, 1968). Further, it
is observed that initially involved in House of Carpets, unlike that drawn
in the present case, was a full Backpay Specification asserting specific
amounts for each claimant, together with appropriate consideration of the
NAVAJO FREIGHT LINES, INC.
entitled to a full backpay specification, with computations
of specific amounts of net backpay for each affected
employee, which General Counsel did not provide in his
pleadings or during the hearing. General Counsel
indicated that such data, to be taken from record
evidence, would be computed subsequent to the hearing
and submitted in his brief." It is merely noted here that
with the General Counsel's brief are attached certain
computations." Although it was conceded that the usual
prehearing investigation was not conducted by General
Counsel to ascertain information which might serve to
reduce the backpay for each of the claimants, e.g., interim
earnings and unavailability for employment, General
Counsel argued that the burden of showing such
reductions in liability lay with Respondent.'6 Here,
General Counsel made no attempt to show or explain the
numerous factors evident in the record which would
presumably affect gross backpay." None of the drivers
was called to testify or produced at the hearing. General
Counsel's argument in his brief that equity requires an
award of backpay equally distributed among all the
drivers "because Respondent created a situation which it
is impossible to determine with precise exactness the
drivers who lost earnings" - is highly dubious as a
adequate approach in a backpay proceeding. And, indeed,
as found herein, General Counsel failed to prove that a
loss of earnings as a result of the subcontracting was
suffered by the listed Denver-based drivers as a group.
The foregoing is set forth in some detail should the
disposition of the issues at the Board or court level
materially vary from that reached herein; in addition,
certain of the considerations discussed above directly bear
upon the Fibreboard issue raised in the complaint case.
However, the procedural and substantive questions in the
backpay aspect of this proceeding need not be, and are
"Respondent raised strong objections . Noting that General Counsel has
to carry a certain burden of proof in backpay cases , the Trial Examiner
assured Respondent that its right of due process would be carefully
observed after the full record was made . At the close of the hearing, upon
Respondent 's request , the Trial Examiner provided for an exchange of
briefs of the parties prior to the date set for filing . In view thereof, a
maximum period for filing briefs was fixed , and thereafter an extension
was granted . In filing its brief on the due date , Respondent stated that it
had not as of then received General Counsel 's brief, and "reserved the
right to respond ." There has been no further submission from Respondent.
"Three schedules purport to show (a) the number of hours which certain
drivers stayed in Denver between trips, as derived from the rosters (G.C.
Exh. 6A-6VV), for the purpose of establishing that the subcontracted work
could have been performed by the listed Denver - based drivers , (b) on a
weekly basis , the mileage covered in the subcontracted work ; multiplied by
the contract mileage rate; and the sum divided by the total listed
Denver-based drivers , and (c ) a proration among 86 named drivers of the
results reached in (b). It should be noted that these are extensive
computations , submitted ex-parte , which impose a great burden of
verification and interpretation , particularly in view of substantial areas left
to inference and the absence of the standard teats of probity to support the
conclusions sought . Further , the Trial Examiner repeatedly stressed the
necessity for clarity and specificity in presenting the documentary data to
be utilized in both the backpay and complaint cases.
"A fair statement of the rule is that General Counsel has the
responsibility diligently to assist in assembling all pertinent evidence, and
the burden to show the gross amounts of backpay due; then the burden
shifts to the respondent to prove "facts which would negative the existence
of liability to a given employee or which would mitigate that liability."
E.g., U.S. Air Conditioning Corp ., 141 NLRB 1278, 1280 ; N.L.R.B. v.
Brown di Root , inc., 311 F . 2d 447 , 456; N . L.R.B. v . Florence Printing
Co., 333 F.2d 289 , 299, et seq .; American Compress Warehouse, etc, 156
NLRB 267, 272.
"For example , vacations , strikes, time off required by I.C.C. rules,
absence for sickness or other personal reasons, and the possibility of
519
not, resolved in view of the recommended dismissal of the
complaint , infra.
C. The Evidence on the Complaint
I.The unit; the collective- bargaining contracts
It is fundamental that an appropriate unit, or an
obligatory basis for bargaining, must be established as a
precondition to a refusal to bargain violation. Some
difficulty was encountered in the respective unit positions
taken before and during the hearing; General Counsel
alleged a unit confined to all over-the-road truck drivers
at the Denver terminal, represented by Local 961 since on
or before April 1, 1967. Respondent denied the alleged
unit, and contended that these drivers are an integral part
of a multi-local, multiemployer unit covered by the
National Master Freight Agreement, and appropriate
supplements.'" Toward the close of the hearing, a
stipulation of all parties was admitted, referring to certain
paragraphs in the complaint, viz.:
V.
All of the over-the-road truck drivers employed by
the Respondent and domiciled at its Denver, Colorado
terminal constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the
Act, as provided and covered within the frame work
and subject to the limitation of the collective bargaining
agreements referred to in paragraph VII. [Emphasis
added.]
v[.
The Union [Local 961] has for more than ten (10)
years been designated by a majority of the employees in
the unit described in paragraph V as their
representative for purposes of collective bargaining with
Respondent, and the Respondent has recognized the
Union [Local 961] as such representative.
VIL
Since April 1, 1967, and at all times material herein,
both the Respondent and the Union [Local 961] have
been subject to and bound by all the provisions of the
collective bargaining agreements known as ` National
Master Freight Agreement, the Central States Area
Over-the-Road Agreement and the Western States Area
Over-the-Road Agreement' for the period from April 1,
1967, through March 31, 1970, which agreements apply
to and determine the rates of pay, wages , hours of
employment and other terms and conditions of
employment of employees referred to in paragraph V.
Certainly it is essential that an appropriate unit, for
purposes of Section 8(a)(5), be defined in clear terms, with
the burden of proof resting upon General Counsel. In its
brief, Respondent persists in its earlier position that the
National Master Freight Agreement creates a single
nationwide bargaining unit . The stipulated unit is drawn in
language which apparently attempts to reconcile the
conflicting positions, but which leaves the definition
equivocal and unclear. From the stipulated language, it
must be construed that the parties intended to agree that
the appropriate unit was that embraced in the collective
interim employment.
"Respondent conceded an obligation to deal directly with Local 961 in
limited respects.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contracts, as indeed would be the necessary test under
ample authority of the Board.
The parties signatory to the National Master Freight
Agreement and Supplemental Agreements generally
consist of the Teamsters International, its numerous local
unions throughout the United States, various employer
associations , members of associations , and individual
employers. Specific provision contemplates the negotiation
of supplemental agreements, which are "subject to and
controlled by the Master Agreement." Respondent has
such contractual relations with about 75 locals of the
Teamsters International covering its entire trucking
system. The Master Agreement in Art 2, Sec. 4,
captioned "Single Bargaining Unit," provides:
The employees covered by this Master Agreement
and the various Supplements thereto shall constitute
one bargaining unit . It is understood that the printing
of this Master Agreement and the aforesaid
Supplements in separate Agreements is for convenience
only and is not intended to create separate bargaining
units.
This National Master Agreement covering city and
road operations of the authorizing members of . . .
Associations which have participated in the collective
bargaining have resulted from joint collective
bargaining negotiations as to common problems and
interests in respect to basic terms and conditions of
employment, and such Master collective bargaining
agreements and Supplements thereto cover a single
bargaining unit for the purposes of collective
bargaining . Accordingly, the Associations and
Employers which are parties to this Agreement
acknowledge that they are part of a multi-employer
collective bargaining unit . . . .19
Other pertinent provisions in the contract are in substance
as follows: Art. 32, Sec. 1, Subcontracting- The Employer
agrees that no work "presently performed, or hereafter
assigned to the collective bargaining unit" will be
subcontracted, transferred, or leased "to any other plant,
person or nonunit employees , unless otherwise provided in
this Agreement." The Employer "may subcontract work
when all of his regular employees are working, except that
in no event shall road work presently performed or runs
established during the life of this Agreement be farmed
out." "The interlining of freight or a division of tariff, for
any purpose, . is included within the term
subcontracting as used in this Article and may be
continued as has been permitted by past practice, provided
it is not being done to defeat the provisions of this
contract." Art. 32, Sec. 2: "Within five (5) working days
of filing of grievance claiming violation of this Article, the
parties to this Agreement shall proceed to the final step of
the grievance procedure, without taking any intermediate
steps, any other provision of this Agreement to the
contrary notwithstanding. Article 8, Sec. (e), Change of
Operations : "Present terminals , breaking points, or
domiciles shall not be transferred or changed without the
Employer first having asked for and received approval
from an appropriate committee on change of operations,
the members of which shall be appointed by the Joint
Area Committee. - - - The right of the employer to
designate home domiciles shall be observed." Art. 8,
National Grievance Procedure: Various joint
union-employer committees are established for the
purpose of resolving , in final and binding form, all
"Elsewhere in the contract, the concept of a single -multiemployer unit is
reiterated , e.g , in Art. 31
grievances and questions of interpretation under the
Master and Supplemental Agreements.20 Art. 8, Sec. (c):
"Any provision in the grievance procedure of any
Supplemental hereto which would require deadlocked
disputes to be determined by any arbitration process shall
be null and void as to any agreements involving
interpretation of the Supplemental Agreements or this
National Master Agreement. The decision of the National
Grievance Committee as to whether a grievance involves
an interpretation which is subject to this procedure shall
be final and conclusive." Art. 30, Jurisdictional Disputes-
"In the event that any dispute should arise between any
Local Unions, parties to this Agreement, or between any
Local Union, party to this Agreement, and any other
Union, relating to jurisdiction over employees or
operations covered by this Agreement the Employer
agrees to accept and comply with the decision or
settlement of the Unions or Tribunals which have the
authority to determine such dispute.
Local 961 expressly delegated, by power of attorney, to
a national negotiating committee, the bargaining authority
to bind Local 961 with respect to the current National
Master Freight Agreement. Harry Bath, chief executive
officer of Local 961, was on the union bargaining
committees which negotiated the Central States
Supplemental Agreement and the Western States
Supplemental Agreement. He is also chairman of the
grievance committee and a member of other regional
committees set up under each of these supplemental
contracts. The Central States Supplement, especially
involved herein, covers all over-the-road operations of the
Employer into and out of the geographical area described
- which encompasses Denver, Colorado, and certain
States, extending to the east, including, among many
others, Missouri and Indiana. The Western States
Supplement likewise covers specified territory to the west
of Denver. Various local unions are joint parties to each
of these two supplemental agreements in accordance with
their particular area jurisdiction. Embraced in the Central
States Supplement are, inter alia , Local 41, situated at the
Kansas City, Missouri, terminal of Respondent, and Local
710 at the Chicago, Ill., terminal.
2. The subcontracting
The work in dispute is referred to as the Crane
operation. It involved the hauling of Government
ammunition , for a period of time, from Crane, Indiana,
via St. Louis, Kansas City and Colorado Springs into
Denver, as part of a transcontinental run culminating on
the far west coast.
In February 1968, Respondent and H. J. Jeffries Truck
Lines, Inc., herein called Jeffries, submitted a joint bid to
the Government , inter alia , to transport ammunition from
the Crane depot. 31 A principle reason for the joint venture
was the fact that Jeffries held the operating authority
from the Interstate Commerce Commission for the major
portion of the route, i.e., from Crane to Colorado
Springs. On February 20, an "Interchange of Equipment
Agreement" was executed wherein Respondent agreed to
supply Jeffries with tractor and trailer units, and qualified
drivers, for use in operating to and from the points of
Jeffries' I.C.C. authority. On May 8, Respondent entered
into a lease agreement with Truck Contracting, Inc., of
"Also Articles 42 and 43 of Central States Supplemental Agreement
"They received the award 2 or 3 months later. Respondent also has joint
operations with Jeffries involving other ammunition depots.
NAVAJO FREIGHT LINES, INC.
Englewood, Colo., herein called Truck Contracting. The
latter agreed to lease to Respondent certain tractors,22
together with drivers. A specific condition was that the
lessor employ only drivers and other employees who are
members in good standing of the Teamsters International.
The Crane ammunition run, as a new operation of
Respondent, actually commenced on May 31.23 So far as
relevant to the issues herein, it was terminated on July 16,
for reasons noted infra, when the base of the Crane
drivers was removed from the Denver area. For the most
part, the same tractors and drivers, leased from Truck
Contracting, were utilized on the entire circuit from Crane
to Denver and return. Jeffries' route authority was
invoked only on the run from Crane to Colorado Springs,
by a change of placards hung on the tractor; Respondent's
authority was displayed from Colorado Springs to Denver,
and on the tractor travelling "empty" from Denver to
Crane. (West of Denver, the loads of ammunition were
routed by or under the authority of other motor carriers
to final destination.) Significantly, the Crane drivers did
not arrive and depart from Respondent's regular terminal
in Denver, at which the "wheel and slip seat" rosters were
maintained. Until July 16, these drivers and their
equipment were domiciled at the terminal or premises of
Truck Contracting in Englewood, Colo., as above noted.
During the material period, the Crane operation entailed
71 round trips between Crane and Denver. Of these, on
General Counsel's evidence, 4 complete trips from Crane
to Denver and 3 partial trips from St. Louis to Denver
were accomplished with tractors and drivers domiciled at
Kansas City under the aegis of Local 41.2'
It was affirmatively testified that the leasing of tractors
and drivers from Truck Contracting was based upon the
Respondent's judgement that the hauling of ammunition
was too erratic for permanent investment , and that it did
not have enough tractors and drivers to handle both the
"general traffic" and the Crane ammunition run." It was
further shown that, within the embrace of the contract,
Respondent previously engaged in the practice of leasing
tractors and drivers to transport ammunition . There is no
contention, nor evidence, that Respondent was motivated
by other than legitimate business and economic
considerations in its arrangements with Jeffries and Truck
Contracting respecting the Crane operation. Furthermore,
as earlier noted in the discussion of the backpay case,
supra, General Counsel did not attempt to remove the
implication of Respondent's evidence that the
Denver-based drivers, claiming detriment , actually
received their normal amount of work and earnings during
the period involved. Subsequent to the hearing , General
Counsel prepared and submitted with his brief a chart or
"schedule" derived from the "wheel and slip seat" rosters,
which purports to show the number of hours spent in
Denver between trips by certain of the Denver-based
drivers. And it is argued therefrom that these drivers
could have performed the work involved in the Crane
operation. As already considered , there are substantial
infirmities and unexplained gaps in General Counsel's
asserted evidence; moreover, it was withheld from proper
"Only one tractor was identified (a 1941 Peterbilt ) with the lease
agreement in evidence . However , it was testified for Respondent that 10 or
11 pieces of equipment were leased from Truck Contracting during the
period in question.
" I.e., the first load was picked up at Crane , Indiana , on this date.
"General Counsel excluded from his backpay claims these seven trips
made by Local 41 drivers. If no objection is made to the Crane haul when
handled by Local 41, the jurisdictional claim of Local 961 to such work is
difficult to reconcile.
521
litigation and denied to Respondent for purposes of
cross-examination or countering evidence. Even if, as I do
not find, hypothetically the Denver-based drivers could
have performed the Crane operation in addition to their
other work, this would not establish that they were
entitled to such an assignment, or demonstrate that
Respondent was necessarily obligated to bargain with
Local 961 on this subject.
3. Analysis of the bargaining issues
The law is fairly well defined that, where an employer
is contemplating economic changes materially affecting
the employment conditions of bargaining unit employees,
his statutory bargaining obligation requires that he notify
and consult with the union before implementing the
changes.36 While the employer has the duty in good faith
to afford the union such an opportunity to bargain
collectively regarding the changes and their effects upon
the employees, the obligation does not require that he
yield to the Union's opposition or particular demands.
The legal principles to be applied in this area are not
intended to be hard and fast rules of general application,
but rather are dependent upon the particular
circumstances of each case.27 And even where a
Fibreboard Section 8(a)(5) violation has occurred,
backpay restitution is not an automatic or inflexible
remedy to be imposed whenever the employer' s unilateral
action has resulted in a detriment to employees.28
It is abundantly apparent that the rules affecting the
various locals of the Teamsters International with respect
to jurisdictional interests and work distribution are
specialized matters of considerable complexity. Governing
the operations of a particular employer, determinations
are made and disputes resolved by appropriate regional
and point committees established under comprehensive
procedures set forth in the National Master Freight
Agreement and supplements. It is not necessary to decide
whether the mandatory bargaining obligations for all
purposes of the Act are confined, among these parties, to
the established appropriate unit which, as earlier
described, is nationwide in scope. For purposes of
Fibreboard, conceivably the bargaining requirements of
notice and consultation may be necessary as to matters of
unique concern to a particular local union ." But such is
clearly not the situation here. General Counsel adverts to
an agreement effected in August 1967 between
Respondent and Local 961, which essentially involves
dispatch and work rules out of the Denver terminal and
agreed conformances with the Central States and Western
States Supplemental Agreements. However, this special
type of agreement does not evidence a practice of direct
negotiations with Local 961, or constitute significant
support, in face of the master and supplemental contracts,
for a reciprocal bargaining obligation limited to the
Denver-based drivers. In the evidence and arguments, the
drivers in the appropriate unit claimed by General
Counsel appear to be a conglomerate group not confined
to membership in Local 961. The roster submitted includes
12 members of Local 710 in Chicago, and had previously
included members of Local 41 in Kansas City. Also
"Respondent's evidence also indicates, without effective contradiction,
that during the material period it engaged in continuous efforts to hire
additonal drivers at the Denver terminal, including approaches to Local
961, but encountered substantial difficulty.
"Fibreboard v N.L R.B, 379 U S 203.
"Shell Oil Company, 149 NLRB 305, 307
"E.g, New Orleans Board of Trade, Ltd., 152 NLRB 1258
"Cf., N.L R.B. v. Miller Brewing Co., 408 F.2d 12 (C.A. 9).
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admittedly domiciled in Denver are members of a local
from Joplin, Missouri, who rotate every 30-45 days. For
backpay purposes , the affected drivers are alleged to consist
of those on the "wheel and slip seat system " during the
backpay period. As shown, on this roster, many of the
drivers are nonmembers of Local 961 , and on certain trips
nonmembers were paired in driving with members of Local
961. All these drivers are, of course, members of the
Teamsters International bound by the master and
appropriate supplemental agreements . And the drivers of
Truck Contracting during the material period were also,
undoubtedly , Teamster members , as indeed the lease
agreement expressly required."
From the testimony of Local 961 President Bath, it
appears , though without crystal clarity , that the essential
dispute centers upon the claim that Respondent
disregarded Local 961' s jurisdictional rights stemming
from the circumstance that the Crane drivers and tractors
were "domiciled" in the Denver area ." They were in fact
located at Englewood, Colo. However, questions of work
distribution to local unions are and have been resolved by
joint committees under specified contract procedures.
Pertaining to Respondent , these rulings , usually invoked
by an employer petition for change of operations,
established the work jurisdiction of a local union or
"domicile" on the basis of specific originating points and
routes of travel of the freight to be transported. There is
no record justification for a holding that despite these
rulings , the overriding test of a local union ' s right to
particular work is the location where the drivers and
tractors are domiciled by Respondent, or its
subcontractor.31
4. Respondent 's consultations with union agents
Early in 1968 , Respondent was aware of certain
existing rulings on the work distribution of local unions
which apparently applied to the contemplated route of the
Crane operation . Thus, in February 1966, a joint change
of operations committee , with Local 961 participating,
granted Respondent ' s request , inter alia, to redomicile a
large number of tractors and drivers to Kansas City,
under Local 41, to handle a new transcontinental run
"Bath 's testimony that he lacked knowledge as to the union membership
of the Crane drivers is highly questionable . None of these drivers was
called to testify . Local 961 represented two of the drivers in grievances on
disputed claims for a wage adjustment , which was settled by Respondent
with a check payment made on behalf of Truck Contracting . The assertion
in General Counsel's brief that the Truck Contracting drivers were
"nonunion" has no validity At some time in early August , after the
domicle of the Crane operation was removed from Denver to Amarillo, all
the Crane drivers became members of Local 224 of Los Angeles pursuant
to an agreement between Respondent and Local 224. The circumstances
are vague in this record . Some of these drivers had apparently been Local
224 members before such agreement . The agreement itself, dated August 7,
was admitted in evidence as G.C. Exh. 9 , but it is represented to the Trial
Examiner after the close of the hearing that the exhibit was lost and, in
effect, could not be replaced . A stipulation of the parties executed April
21, 1969, that this exhibit may be disregarded is now inserted in the record
as G.C. Exh. 9.
m In General Counsel 's brief, it is argued that Respondent 's decision "to
subcontract the [Crane ] work to Denver domiciled power and drivers . .
encroached upon the jurisdiction assigned to Local 961 by the
International.
"Bath admitted that, historically , Denver-based power has never been
allowed to run through the Kansas City Gateway - a route entailed in the
Crane operation.
through and from the "Kansas City Gateway" to
destinations on the west coast . In March 1968, at a
meeting of the Central States Grievance Committee, the
subject of workload distribution for various domiciles was
under consideration between representatives of
Respondent and local unions , including Local 961. As was
testified , in the same room , after the regular meeting
Respondent consulted with Local 411, concerning the
proposed Crane ammunition haul, including the planned
use of Jeffries' I.C.C authority and the leasing of
equipment and drivers from Truck Contracting to be
domiciled in the Denver area ." Local 41 was also told
there would be occasions when Kansas City "power"
would be used on this run. It is undisputed that the details
of the Crane operation were cleared and approved by
Local 41 at this time . Emil Zwiesen, Respondent's labor
relations director, testified that Bath of Local 961, and
agents of other specified locals, were present during this
discussion." At further meetings thereafter, the general
subject of work distribution was pursued with local unions
and the Teamsters International . One such meeting was
held in Chicago on June 12, on which occasion the Crane
leasing , already in operation, was also discussed.36
However , it appears that Bath and Zwiesen had separate,.
conversations , at least in the latter part of June,
concerning the use of Truck Contracting on the Crane
haul. On June 27, in a letter from Bath to Zwiesen setting
forth certain complaints, it is stated: "In addition Local
961 is disturbed about the lease operation out of Denver,
Colorado." And in further letter of complaints on July 3,
Bath asserted:
It has been brought to my attention that Navajo
Freight Lines is operating numerous leasers out of
Denver, Colorado terminal. This is a unilateral action
and has never been discussed with Local No. 961.
Local No. 961 does not agree that this is the
company's prerogative to do; in fact you have failed to
maintain a proper extra board [of auxiliary or relief
drivers] at Navajo Freight Lines, which leads me to
think this is the very reason you are not replacing
employees who retire or quit....
On July 10, Zwiesen replied:
It appears to me that you are tying in the lease
driver situation with your request to maintain a proper
extra board. If my understanding of your contention is
correct, then one has nothing to do with the other. If
my understanding is not correct , I would appreciate
receiving clarification....
In regard to the lease operations which you refer to
in your letters of July 3rd and June 27th, as I advised
you on June 26th, 1968, this operation was originally
explained to all Locals in Chicago'on June 12, 1968. I
assumed that you were present at this meeting or that
an officer of your Local was present and reported the
substance of that meeting. In addition , I explained the
"Represented . by Stan Stanhope, an officer , and Roy L. Williams,
president, of Local 41. At the time , Williams was also chairman of Central
States Drivers Council and of the Grievance Committee, and was General
Organizer of the Teamsters International.
"It was explained that Denver was closest to the connecting point
(Colorado Springs) of the respective route authorities of Respondent and
Jeffries.
"Bath testified that he attended the March meeting in Chicago, but he
did not participate in a discussion and did not hear anything about the
Crane operation.
"Bath of Local 961 attended this meeting, but testified that nothing was
said about Respondent 's lease operations.
NAVAJO FREIGHT LINES, INC.
matter to you on June 27, 1968, wherein I advised that
these lease operations involved a lease by Navajo of its
operating authorities to another carrier. You stated in
that telephone conversation that you were satisfied with
my explanation." If you desire further information on
this matter other than that which has been previously
discussed, I will, of course, reply... .
I believe this covers all of the matters raised in your
letters of June 27 and July 3; however, if it does not, I
will be happy to discuss any of the matter with you
personally at your convienence.
On July 5, as earlier noted, Local 961 filed the original
charge herein; however, it did not at any time invoke the
grievance or jurisdictional dispute machinery of the
contract. On July 15, at 4:30 p.m., Local 691 engaged in a
strike against Respondent, as to which the reasons and
circumstances are not disclosed in the record. On July 16,
a strike settlement agreement was executed containing,
inter alia , the following item:
3. In accordance with the contract, all Denver,
Colorado drivers and equipment will work before any
leased drivers or leased equipment are used out of
Denver, Colorado, Terminal,
As apparently within the understanding of the parties
relating to this settlement provision, Respondent the next
day moved the domicile of the Crane operation from
Denver to Amarillo.39
On July 22, the work distribution rulings were handed
down, as described in a communication received by
Respondent, viz.:
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF
AMERICA
July 22, 1968
Mr. Emil Zwiesen
Navajo Freight Lines, Inc.
1205 South Platte River Drive
Denver, Colorado
Dear Emil:
Enclosed please find copies of the work load for each
domicile of the Navajo Freight Lines operation. At the
meeting in Chicago with all local unions involved, some
of us had a difference of opinion as to what the change
of operation approved actually meant as to the work
load for each local union.
I have carefully anaylzed the change and the
enclosed work load is fair and in compliance with the
change of operation. These rules have been approved by
the General Vice President Frank Fitzsimmons.
Fraternally,
/s/ Roy L. Williams
Roy L. Williams
General Organizer
"Bath 's version was that he then told Zwiesen that Respondent was in
violation of the contract.
" Item 3 of the strike settlement comports with language in Art. 32, Sec.
1, of the master contract , supra , and is not alleged or construed as an
admission by Respondent that it breached the contract . In any event, the
testimony concerning Item 3 clearly unplies a discussion between these
parties of the Crane operation and an agreement by Respondent responsive
to Local 96l's demands.
523
In relevant part, the enclosed rulings awarded to "Kansas
City Based Power" (or Local 41) runs from Kansas City
to specified points, including Denver and (California)
"Bay Area Terminals."" Denver-based power (or Local
961) also was granted certain runs, emanating from
Denver, not in conflict with other awards.
Bath testified he first became aware of the July 22
work distribution during an unrelated grievance hearing in
August. He did not agree with any of it, and was not
going to be bound, because Local 961 "hadn't been
involved in any of the meetings that brought about this
document." On August 7, Respondent entered into a
contract with Local 224 of Los Angeles covering the
transportation of ammunition, including the Crane
operation now domiciled at Amarillo .41
At the end of August, a meeting was held in Denver
with various locals, and Zwiesen in attendance. Bath then
expressed consent to the workload distributions of July 22,
following a clarification that originating Denver runs were
to include Colorado Springs, Pueblo, and Los Angeles."
5. Concluding findings
In light of the insufficiency of the appropriate unit
alleged, the pertinent provisions of the
collective-bargaining agreement, and the practices of the
parties thereunder, it is concluded that General Counsel
failed to establish a valid basis for a bargaining obligation
flowing from Respondent to Local 961 with respect to the
Crane leasing operation. Even assuming such a bargaining
obligation for purposes of Fibreboard, on the evidence
presented I cannot find that there was any cognizable
adverse impact on the allegedly affected employees."
Moreover, the entire record on this issue indicates, in my
opinion, that (1) Respondent acted reasonably, without
union animus , and in good faith in seeking to carry out its
bargaining obligations within the procedures of the
existing contract, (2) at the times material, Respondent
willingly engaged in consultations with Teamster
representatives, including Local 961 when requested, and
the details of the Crane operation were effectively known
and sanctioned by appropriate joint committees and union
agents pursuant to the practices established under the
contract, and (3) in the particular circumstances, Local
961's work jurisdictional claims relating to this operation
are more properly relegated to the provided contract
procedures and to the internal recourses of the Teamsters
International than to the complaint machinery of the Act. 13
"As pertains to the Crane operation , with the ammunition loads
originating in Indiana , Local 41 would appear to have the jurisdictional
priority sundar to the situation which prevailed under the February 1966
ruling, supra.
"See fn . 30, supra The contractual relationship , if any, between Truck
Contracting and Local 224, or any other local unions , has not been shown.
'I am unable to accept Bath's denials that the Crane operation was
discussed in his presence at either of the Chicago meetings in March and
June , and that Local 961 did not participate in the work distribution
meetings preceding the July 22 rulings. Williams, Stanhope , nor the agents
of any of the local unions identified by Zwiesen as being present at the
various meetings, was called to testify, and the documentary evidence
stands strongly opposed to Bath 's testimony.
"E.g., Westinghouse Electric Corp, etc, 153 NLRB 443; The Fafnir
Bearing Company. 151 NLRB 337; American Oil Company, 151 NLRB
421.
"Cf., e.g., Jos Schlitz Brewing Company, 175 NLRB No. 23;
Montgomery Ward & Co, Incorporated. 137 NLRB 418; Crown
Zellerbach Corporation. 95 NLRB 753
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW Section 8(a)(5) and (1) of the Act have not been supported
1. Respondent is engaged in commerce within the
by substantial evidence.
meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER
2. The Charging Party, Local 961, is a labor
organization within the meaning of Section 2(5) of the
Act. It is recommended that the complaint and the separate
3. The allegations of the complaint that Respondent has backpay pleading of the General Counsel be dismissed in
engaged in unfair labor practices within the meaning of their entirety.