Overnite Transportation Co.

National Labor Relations Board - Board Decisions

Jan 31, 1992

306 N.L.R.B. 237 (N.L.R.B. 1992)

237
306 NLRB No. 28
OVERNITE TRANSPORTATION CO.
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 On June 12, 1991, Administrative Law Judge Russell M. King,
Jr. issued the attached decision. The General Counsel and the Charg-
ing Party each filed exceptions and supporting briefs, and the Re-
spondent filed cross-exceptions and a supporting brief. The General
Counsel also filed a reply brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
3 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) of the Act by refusing to bargain with the Union
about the effects on unit employees of opening the Palatine terminal,
we note that a union must receive sufficient notice of a change to
trigger its obligation to request bargaining. See Fountain Valley Re-
gional Hospital, 297 NLRB 549 (1990). Here, as found by the
judge, the Respondent failed to give the union advance notice of the
planned opening of the Palatine facility.
4 The judge included a broad cease-and-desist provision in his rec-
ommended Order. In so doing, the judge relied on Overnite Trans-
portation Co., 296 NLRB 669 (1989), enfd. 938 F.2d 815 (7th Cir.
1991), which involved unfair labor practices committed by the Re-
spondent in 1982. We find, however, that these instances of mis-
conduct are too remote in time from the conduct found to be unlaw-
ful in the instant proceeding to support a broad order under the
standard set forth in Hickmott Foods, 242 NLRB 1357 (1979). See,
e.g., Operating Engineers Local 12 (Hensel Phelps), 284 NLRB 246
fn. 2 (1987). We shall therefore substitute a narrow cease-and-desist
provision.
5 The Union was the certified collective-bargaining representative
of the local drivers employed by the Respondent at its Bedford Park
terminal.
6 See, e.g., Central Soya Co., 281 NLRB 1308 (1986).
7 In Rice Food, above, the Board found that the transfer by the
employer of its liquor sales departments from its food stores to adja-
cent liquor stores constituted a spinoff from the food store operation.
Overnite Transportation Company and Local 705,
International Brotherhood of Teamsters, AFL–
CIO.1 Case 13–CA–28668
January 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
Exceptions filed to the judge’s decision in this case2
present the question, inter alia, of whether the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
refusing to recognize and bargain with the Union as
the collective-bargaining representative of the local
drivers employed at the Respondent’s newly opened
Palatine terminal.
The Board has considered the exceptions in light of
the record and briefs and has decided to affirm the
judge’s rulings, findings,3 and conclusions only to the
extent consistent with this Decision and Order.4
The judge, applying an accretion analysis, found that
the Respondent did not violate the Act by refusing to
recognize the Union as the collective-bargaining rep-
resentative of the local drivers employed at the Re-
spondent’s newly opened Palatine terminal because a
majority of the unit employees at Palatine did not
transfer from the Respondent’s existing Bedford Park
terminal.5 The judge further found that it was not clear
whether the Union had made a request for recognition
with respect to the unit employees at Palatine. For the
following reasons, we reverse the judge and find that
the Respondent violated the Act as alleged.
We find initially that this case does not involve an
accretion issue. Nor is the case precisely controlled by
the precedent, cited by the General Counsel, con-
cerning relocations of existing operations.6 Rather, we
find that the Palatine terminal constitutes an extension
of, or a spinoff from, the Respondent’s truck terminal
at Bedford Park. A similar issue involving a spinoff
operation was before the Board in Coca-Cola Bottling
Co. of Buffalo, 299 NLRB 989 (1990), enfd. 936 F.2d
122 (2d Cir. 1991). In that case, the union represented
the respondent’s employees at the Tonawanda ware-
house. The respondent refused to, inter alia, recognize
the union as the bargaining representative with respect
to the unit employees at the new Orchard Park facility.
The Board in Coca-Cola cited Rice Food Markets, 255
NLRB 884 (1981), for the proposition that accretion
principles are not applicable where a ‘‘new’’ facility is
in fact not wholly new either in function, staffing, or
location.7 In this regard, the Board cited the following
distinction drawn by the judge in Rice Food between
an accretion and an employer’s continuing obligation
to recognize and bargain with a union on behalf of a
group of employees spun off from an existing unit:
In practical effect, there is a heavy burden on a
party seeking to prove ‘‘accretion’’ to show that
the group sought to be added to an existing unit
is an ‘‘accretion’’ within the meaning of the
Board’s longstanding use of that term. When, as
here, an employer attempts to justify removing a
particular group or groups from the coverage of a
collective-bargaining agreement or relationship, it
has the burden of showing that the group is suffi-
ciently dissimilar from the remainder of the unit
so as to warrant that removal. 299 NLRB 989
(emphasis in original) (citing 255 NLRB at 887).
On the facts before it, the Board in Coca-Cola first
found that the respondent’s Orchard Park warehouse
was an extension of, or a spinoff from, the respond-
ent’s principal warehousing operation located some 20
miles away at Tonawanda. In so finding, the Board re-
lied on the fact that the Orchard Park warehouse was
designed to facilitate the distribution of the respond-
ent’s product to about 30 percent of its existing cus-
tomer accounts, previously handled at Tonawanda, in
the southern portion of its franchise territory. When the
Orchard Park facility opened, three of its four employ-
238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 It appears, however, that only one employee transferred from a
unit position at Tonawanda to a unit position at Orchard Park. See
299 NLRB at 990 fn. 4.
9 See also Illinois-American Water Co., 296 NLRB 715 (1989),
enfd. 933 F.2d 1368 (7th Cir. 1991).
10 We note that although the Respondent added a small portion of
new territory to the area serviced from the Palatine terminal, the par-
ties stipulated that 95 to 99 percent of Palatine’s customers had pre-
viously been serviced by Bedford Park.
11 The judge found that a number of management and clerical
workers, mechanics, and dockmen also transferred to Palatine from
Bedford Park.
12 The evidence establishes that each of the terminals is governed
by policies established at the Respondent’s corporate office in Vir-
ginia. Decisions involving wages, hours of work, and safety are
made at the corporate offices. The terminal managers report to the
corporate director of staff operations, who is responsible ‘‘for the
staffing of terminals for efficiency and service.’’ An official at the
corporate office also coordinates information about transfers among
terminals, including publicizing notices of vacancies. We note in this
regard that the judge found that the Respondent did not follow the
usual notification procedures with respect to the opportunity for Bed-
ford Park employees to transfer to Palatine.
ees were from Tonawanda.8 The Board further found
that overall managerial control over the operations of
the Orchard Park facility and its employees’ work were
made by officials at Tonawanda, and that the vehicles
and other equipment used at Orchard Park was serv-
iced at Tonawanda.
Having found that the Orchard Park facility was a
spinoff operation, the Board in Coca-Cola next found
that under Rice Food, above, the respondent had not
demonstrated that the employee group at Orchard Park
was sufficiently dissimilar from the remainder of the
bargaining unit at Tonawanda to justify removing them
from the unit. Citing evidence of a strong community
of interest between the two groups of employees, the
Board concluded that the respondent violated Section
8(a)(5) and (1) of the Act by, inter alia, refusing to
recognize and bargain with the union as the representa-
tive of the Orchard Park employees.9
Applying the principles of Coca-Cola, above, to the
instant case, we find that the following facts, as found
by the judge and established by the record testimony,
demonstrate that despite being approximately 27 miles
away, the Palatine terminal is merely an extension of
the main terminal at Bedford Park in terms of function
and staffing, and is therefore a spinoff operation. The
Palatine terminal was opened in order to serve the
northern one-third of the former Bedford Park territory
and to handle about 3000 of the 9000 customers pre-
viously handled by Bedford Park.10 In this respect, the
Palatine terminal is analogous in purpose and scale to
the opening of the Orchard Park facility in Coca-Cola,
above. The Respondent transferred 19 local drivers
from Bedford Park to Palatine; however, 3 of the
transferees became nonunit, over-the-road drivers on
being transferred. When the Palatine terminal opened
on April 3, 1989, it employed 16 transferred local driv-
ers and 17 local drivers who had been newly hired.
Thus, the number of transferees was significant.11 In
terms of managerial control, Gordon, who had been the
assistant terminal manager at Bedford Park, became
the terminal manager at Palatine. Gordon testified that
the terminals have the same supervisory structure ex-
cept that the Palatine terminal does not have a separate
personnel manager or operations manager.12 The Pala-
tine terminal opened with a designated number of trac-
tors, trucks, and trailers, some of which had been
transferred from Palatine. The parties stipulated that
each terminal performs general routine maintenance of
their respective vehicles, but that if a breakdown oc-
curs, the vehicle is taken to the nearest terminal to be
repaired.
These facts make clear that the Palatine terminal is
not a new facility, but operates as an extension of the
Bedford Park warehouse. We therefore find, in reliance
on Coca-Cola, above, that accretion principles do not
apply here. Rather, we find that the Respondent has
not met its burden of demonstrating that the employee
group at Palatine is sufficiently dissimiliar from the re-
mainder of the bargaining unit at Bedford Park to jus-
tify removing them from the unit. As in Coca-Cola,
above, the evidence reveals a community of interest
between the two groups of employees. All of the Re-
spondent’s local drivers are covered by the Respond-
ent’s corporate policies with respect to wages, benefits,
and work rules. Additionally, the Palatine unit employ-
ees perform basically the same work with the same
kind of equipment and under the same working condi-
tions as do the unit employees at Bedford Park. The
parties stipulated that approximately once a week a
Bedford Park customer is serviced by drivers and
equipment assigned to Palatine and once a week a Pal-
atine customer is serviced by a Bedford Park driver
and equipment. Finally, there is evidence of regular
contact between the employees. Gordon testified that
about twice a night four trailers ‘‘shuttle’’ freight be-
tween terminals.
Based on the above, we find that the Palatine em-
ployees were at all relevant times part of the bar-
gaining unit recognized by the Respondent at Bedford
Park. When Union Representative Tenuta was ques-
tioned at the hearing as to whether the Union made
any attempt to have the Respondent recognize the
Union as the representative of the Palatine employees,
he responded, ‘‘Yes, our attorneys did.’’ Tenuta further
testified:
Our attorney, Mr. Charone, contacted me and says
they are not going to acknowledge the move to
Palatine, that we would have to take legal action.
We find, contrary to the judge, that Tenuta’s
unrebutted testimony, albeit hearsay, is sufficient to es-
tablish that the Union made a request for recognition.
239OVERNITE TRANSPORTATION CO.
13 Relying on Tenuta’s testimony, Member Oviatt concludes that
the Union made a request for recognition. Thus, he finds it unneces-
sary to reach the question whether the refusal to bargain charge was
tantamount to a valid request for recognition.
14 We shall modify the Conclusions of Law, recommended Order,
and notice to conform to the violations found.
15 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.’’
Moreover, under the circumstances, including the Re-
spondent’s continuing obligation to recognize and bar-
gain with the Union on behalf of the unit employees,
we find that the refusal-to-bargain charge filed by the
Union in the instant case was tantamount to a valid re-
quest for recognition. See Sterling Processing Corp.,
291 NLRB 208, 217 (1988).13 See also Fall River
Dyeing Corp. v. NLRB, 482 U.S. 27, 53–54 (1987)
(demand in successorship context).
Accordingly, we reverse the judge and find that the
Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain with the Union
as the exclusive collective-bargaining representative of
the unit employees at the Palatine terminal.14
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law 4
and 5:
‘‘4. By refusing to recognize and bargain with the
Union as the collective-bargaining representative of the
unit employees at the Palatine terminal, the Respond-
ent violated Section 8(a)(5) and (1) of the Act.
‘‘5. The unfair labor practices found affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.’’
ORDER
The National Labor Relations Board orders that the
Respondent, Overnite Transportation Company, Bed-
ford Park and Palatine, Illinois, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local 705, International
Brotherhood of Teamsters, AFL–CIO concerning the
effects on unit employees of the Respondent’s opening
of the Palatine terminal.
(b) Refusing to recognize and bargain with the
Union as the exclusive collective-bargaining represent-
ative of the employees in the following appropriate
unit:
All local drivers employed at the Employer’s ter-
minals located at 6633 West 75th Street, Bedford
Park, Illinois and 750 Hicks, Palatine, Illinois; but
excluding all other employees, clericals, guards
and supervisors as defined in the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following action necessary to effectuate
the policies of the Act.
(a) On request, bargain with the Union concerning
the effects on unit employees of the Respondent’s
opening of the Palatine terminal.
(b) Recognize and on request bargain with the
Union as the exclusive collective-bargaining represent-
ative of the employees in the unit described above.
(c) Post at its Bedford Park and Palatine, Illinois ter-
minals copies of the attached notice marked ‘‘Appen-
dix.’’15 Copies of the notice, on forms provided by the
Regional Director for Region 13, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt,
and be maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Local 705,
International Brotherhood of Teamsters, AFL–CIO
concerning the effects on unit employees of the Re-
spondent’s opening of the Palatine terminal.
WE WILL NOT refuse to recognize and bargain with
the Union as the exclusive collective-bargaining rep-
resentative of the employees in the following appro-
priate unit:
All local drivers employed at the Employer’s ter-
minals located at 6633 West 75th Street, Bedford
Park, Illinois, and 750 Hicks, Palatine, Illinois;
but excluding all other employees, clericals,
guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1989 unless otherwise indicated.
2 The term ‘‘General Counsel,’’ when used will normally refer to
the attorney in the case acting on behalf of the General Counsel of
the Board, through the Regional Director.
3 The pertinent parts of the Act (29 U.S.C. § 151.) provide as fol-
lows:
Sec. 8(a). It shall be an unfair labor practice for an em-
ployer—(1) to interfere with, restrain or coerce employees in the
exercise of the rights guaranteed in Section 7 . . . (5) to refuse
to bargain collectively with the representative of his employees
. . . .
. . . .
Sec. 7. Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
. . . .
Sec. 8(d). For the purposes of this section, to bargain collec-
tively is the performance of the mutual obligation of the em-
ployer and the representative of the employees to meet at rea-
sonable times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment, or the ne-
gotiation of an agreement or any question arising thereunder,
and the execution of a written contract incorporating any agree-
ment reached if required by either party.
4 Certain errors in the transcript are noted and corrected.
5 The facts found are based on the record as a whole and on my
observation of the witnesses. The credibility resolutions have been
derived from a review of the entire testimonial record and exhibits
with due regard for the logic of probability, the demeanor of the wit-
nesses, and the teaching of NLRB v. Walton Mfg. Co., 369 U.S. 404,
408 (1962). As to those testifying in contradiction of the findings,
their testimony has been discredited either as having been in conflict
with the testimony of credible witnesses or because it was in and
of itself incredible and unworthy of belief. All testimony and evi-
dence, regardless of whether mentioned or alluded to has been re-
viewed and weighed in light of the entire record.
WE WILL, on request, bargain with the Union about
the effects on unit employees of our opening of the
Palatine terminal.
WE WILL recognize and on request bargain with the
Union as the exclusive collective-bargaining represent-
ative of the employees in the unit described above.
OVERNITE TRANSPORTATION COMPANY
Richard S. Andrews, Esq., for the General Counsel.
John O. Pollard, Esq. (Blakeney, Alexander & Machen), of
Charlotte, North Carolina, for the Respondent.
Sheldon M. Charone, Esq. (Carmell, Charone, Widmer, Mat-
hews & Moss), of Chicago, Illinois, for the Union.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING JR., Administrative Law Judge. This
case was heard by me in Chicago, Illinois, on January 17 and
18, 1990, pursuant to a charge filed by Local 705, Inter-
national Brotherhood of Teamsters, AFL–CIO (the Union) on
May 30, 1989,1 and a complaint issued on July 11 by the
Regional Director for Region 13 of the National Labor Rela-
tions Board (the Board), on behalf of the Board’s General
Counsel.2 The complaint alleges that Overnite Transportation
Company (the Respondent) violated Section 8(a)(1) and (5)
of the National Labor Relations Act (the Act) when it opened
a new terminal facility some 27 miles from its Bedford Park,
Illinois facility and failed to bargain with the Union over the
effects of the opening, and further failed to recognize the
Union at the new facility (Palatine, Illinois).3 The Respond-
ent denies any obligation to so bargain with or recognize the
Union, which represents the Respondent’s Bedford Park local
drivers.
On the entire record,4 including my observation of the de-
meanor of the witnesses, and after due consideration of the
briefs filed by the General Counsel, counsel for the Union,
and counsel for the Respondent, I make the following
FINDINGS OF FACT5
I. JURISDICTION AND THE LABOR ORGANIZATION
The pleadings, admissions, and evidence in the case estab-
lish the following jurisdictional facts. The Respondent is, and
has been at all times material, a Virginia corporation engaged
in the interstate transportation of goods and commodities
with offices and places of business in several States, includ-
ing facilities now located in Bedford Park and Palatine, Illi-
nois. During the calendar year ending December 31, 1988,
Respondent, in the course and conduct of its business, de-
rived gross revenues in excess of $50,000 from the transpor-
tation of freight and commodities in interstate commerce. I
find, as admitted, that the Respondent is now, and has been
at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Further, and as admitted herein, I find that the Union has
been at all times material a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Brief Summary of Evidence and Testimony
On June 25, 1982, the Union was certified by the Board
as the exclusive bargaining representative of all local drivers
of the Respondent at its Bedford Park, Illinois facility. Nego-
tiations subsequent to the Union’s certification failed to re-
sult in a collective-bargaining agreement and the Respondent
engaged in conduct which resulted in the filing of charges
with the Board in October 1982. After a hearing in 1983, a
judge’s decision in 1984, and the filing of exceptions, the
Board issued its decision on September 21, 1989 (296 NLRB
669.) In that decision the Board found that the Respondent
had violated Section 8(a)(1) and (5) of the Act by threats of
discharge, terminal closure, and interrogation of employees
about union activity. The Board also determined that the Re-
spondent had failed to bargain in good faith in violation of
Section 8(a)(1) and (5) of the Act, and entered an appropriate
remedial order. Negotiations had resumed as of the time of
the hearing in the instant case (January 1990), but no agree-
ment had been reached.
In February 1989, the Respondent determined to open a
new terminal facility in the area previously serviced exclu-
sively by the Bedford Park terminal. This terminal was lo-
cated at Palatine, some 27 miles from the older terminal.
241OVERNITE TRANSPORTATION CO.
6 The complaint spells the Bedford Park terminal manager’s name
Jerald ‘‘Clements.’’ The official transcript spelling is ‘‘Clemmens.’’
The briefs of the General Counsel and the Union use the spelling
‘‘Clemments.’’ The Respondent’s brief refers only to the ‘‘terminal
manager,’’ and not by name. The terminal manager did not appear
as a witness, and no exhibit bears his name.
Both Bedford Park and Palatine are suburbs of Chicago.
Former Bedford Park Assistant Terminal Manager William
Gordon was designated terminal manager at the new facility.
Palatine opened for business on April 3, and serviced the
northern third of the area previously serviced by Bedford
Park. Some 3000 customers previously served by Bedford
Park received the same services from Palatine, which gen-
erated about a third of the revenue previously obtained solely
through Bedford Park. The total area serviced by the two ter-
minals ran about 120 miles in the north-south direction and
about 60 miles in an east-west direction. The approximate
north-south midpoint of the area was downtown Chicago.
The Respondent failed to give the Union or its Bedford
Park local drivers any general and advance notice of the pro-
spective opening of the Palatine facility, and only a week
and a half before the opening it held meetings for the Bed-
ford drivers. The normal practices of notifying drivers of an
opportunity to transfer to a new facility through bulletin
board notices or putting a notification in pay envelopes were
not followed, but instead, a number of drivers were contacted
on an individual basis to see if they wished to transfer to
Palatine.
The Union only became aware of the Palatine situation
through rumors communicated to it by Respondent’s drivers.
On the basis of these rumors, Union Business Agent Sam
Tenuta went to the Bedford Park terminal in late March to
talk about the situation with Respondent’s terminal manager,
Clements.6 He was informed that Clements was not available
and asked to leave, and in fact, there was a threat to call the
police if Tenuta did not leave. Tenuta left the premises with-
out further incident. Several days after his abortive visit
Tenuta managed to reach Clements by phone and asked him
about Palatine and how Respondent intended staffing it. He
also inquired if the Bedford drivers would have an oppor-
tunity to transfer to Palatine and have transfer-back privi-
leges. However, Tenuta’s inquiries were cut off by Clements
stating ‘‘I have nothing to say.’’ Tenuta thereafter told the
Union’s attorney, Charone to open negotiations about Pala-
tine. Charone apparently was unsuccessful in getting Re-
spondent to negotiate concerning the effect on the bargaining
unit of opening the Palatine facility, although the record does
not reflect what Charone did in this connection, or who, if
anyone, he talked with.
Respondent opened the Palatine terminal on April 3. A
number of management and clerical workers, mechanics,
dockmen, and drivers were transferred to Palatine from Bed-
ford Park, including 19 of the union-represented Bedford
Park drivers to Palatine. Three of these drivers were con-
verted to and transferred as over-the-road drivers. Respond-
ent hired 17 new drivers for a total of 33 local drivers at the
Palatine facility. Out of the combined total of 154 local driv-
ers at the two facilities as of April 3, 137 had been in the
original Bedford Park unit represented by the Union. A stipu-
lation between the parties also reflects that the Bedford Park
facility transferred eight tractors, two straight trucks, and six
trailers to Palatine. About once a week, a Bedford Park cus-
tomer is serviced out of the Palatine terminal and a Palatine
customer is serviced by Bedford Park. On occasion, if a
truck breakdown occurs near either facility, it will be serv-
iced at the closer terminal, even though it is based at the
other terminal. The evidence reflects that some Bedford Park
drivers lost worktime following the opening of the Palatine
terminal. Operations at the two terminals were basically the
same. The same equipment is used by similarly skilled em-
ployees working under similar administrative controls to ac-
complish the same ends. The two terminals, as of the time
of the hearing, differed only in the scale of their operations,
Bedford Park handling about twice the amount of delivery
work as Palatine. In sum, the Bedford Park terminal fissioned
and its resulting smaller part became the Palatine terminal
(called a ‘‘satellite’’ by the General Counsel), servicing
about one-third the area previously handled by Bedford Park
alone with a number of drivers, other employees, manage-
ment and equipment transferred from Bedford Park.
B. Analysis
1. The duty to bargain over the effects of the
Palatine opening
Paragraphs VII and IX of the complaint allege that the Re-
spondent, since the beginning of May 1989, failed to bargain
with the Union over the effects of opening the Palatine ter-
minal on the unit of local drivers at the Bedford Park ter-
minal, in violation of Section 8(a)(1) and (5) of the Act. I
find that the Palatine opening did affect the local drivers at
Bedford Park in a number of ways, including the size of the
unit, where they would work, route changes, transfers and
transfer rights, and driving hours (affecting wages). It is well
settled that Respondent was under a duty to bargain with the
Union about the results or effects of its decision to open the
Palatine terminal and transfer a number of unit (local) drivers
to Palatine from Bedford Park. First National Maintenance
Corp. v. NLRB, 452 U.S. 666 fn. 15 at 677–678, 681–682
(1981). The record reflects, and I so find, an absolute refusal
to bargain about any aspect of the Palatine opening. Accord-
ingly, I find that Respondent’s refusal violated Section
8(a)(1) and (5) of the Act as alleged in the complaint.
2. Failure to recognize the Union at Palatine
Paragraphs VIII and IX of the complaint allege that ‘‘on
or about the beginning of May, 1989,’’ the Union requested
the Respondent to recognize it as the exclusive bargaining
representative of the ‘‘employees in the Unit employed at its
operations transferred to the newly opened Palatine facility,’’
and that the Respondent refused, in violation of Section
8(a)(1) and (5) of the Act. The wording of the allegation,
‘‘employees in the Unit employed at its operations trans-
ferred,’’ initially appears somewhat curious, but understand-
able in light of the General Counsel’s legal theory set forth
in his brief. The General Counsel argues that Palatine was
a ‘‘partial transfer, relocation, or expansion of unit work,’’
and does not argue or claim an ‘‘accretion’’ (when new em-
ployees are added to an existing bargaining unit), fearing, in
my opinion, that since a majority of the local drivers at Pala-
242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The General Counsel recites in his brief that on April 3, Re-
spondent transferred 19 drivers to Palatine, 3 of which ‘‘became’’
over-the-road drivers. In my opinion, the evidence reflects that the
three drivers were transferred directly to over-the-road driver posi-
tions, and did not later ‘‘become’’ such. Thus, there remained 16
transferred local drivers and 17 new local drivers were newly hired
by the Respondent.
8 In support of his theory, the General Counsel cites Central Soya
Co., 281 NLRB 1308 (1986); Harte & Co., 278 NLRB 947 (1986);
Molded Accoustical Products, 280 NLRB 1394 (1986); and
Westwood Import Co., 251 NLRB 1213 (1980), all of which are ex-
clusively entire relocation cases. In the instant case, a new but small-
er terminal was opened, and at best there was only a partial reloca-
tion or voluntary transfer of a small number of unit members.
9 In all other respects, I find the record would support an accretion.
Working conditions were the same, management (together with most
other classifications of employees) came from Bedford Park, and the
Respondent was part of a nationwide company with central rules and
procedures for operating and conducting business. See Universal Se-
curity Instruments, 250 NLRB 661 (1980), enfd. 649 F.2d 247 (4th
Cir. 1981), cert. denied 454 U.S. 965 (1981).
10 See Overnite Transportation Co.
tine were not from the Bedford Park unit,7 an ‘‘accretion’’
theory would not wash here.8 In Renaissance Center Part-
nership, 239 NLRB 1247 (1979), the Board noted it was
‘‘cautious’’ in finding an accretion, particularly when the
accreted group ‘‘numerically overshadows’’ the existing cer-
tified unit, because it would deprive the ‘‘larger’’ group of
employees their statutory right to select their own bargaining
representative. In fact, no case has been cited, or can be
found in which the Board concluded an accretion where the
accreted group outnumbered (even by one) the existing unit
group. In Central Soya Co., 281 NLRB 1308 (1986), involv-
ing a ‘‘consolidation’’ and ‘‘relocation’’ situation, the Board
indicated that an accretion may be found when the two
groups of employees are of ‘‘approximately equal size [and]
even when the represented employees barely constituted a
majority of the combined work force’’ (emphasis added).
Whether Palatine is labeled a consolidation, a relocation, a
partial relocation, or an extension of the Bedford Park unit,
in my opinion for the Union to represent the local drivers at
Palatine without separate representation proceedings, the unit
at Bedford Park must be extended to Palatine through an ac-
cretion, and the 17 newly hired local drivers cannot be
accreted because they constitute a majority of the local driv-
ers at Palatine.9 Although I am convinced that the Respond-
ent’s intent and motive was exactly this outcome, given its
history of antiunion animus,10 the statutory rights of the new
drivers must be controlling here.
In this case, the General Counsel faces yet another prob-
lem. Although the record is clear that the Union requested
(and was refused) ‘‘effects’’ bargaining, the record is ambig-
uous at best not only as to when a request for recognition
at Palatine was made, but as to whether such a request was
actually made. The General Counsel concludes that such a
request was made from the testimony of Union Representa-
tive Tenuta, when he was asked if the Union had made any
attempt to have the Respondent recognize the Union at Pala-
tine. Tenuta answered as follows: ‘‘Yes. Our Attorney, Mr.
Charone, contacted me and says they are not going to ac-
knowledge the move to Palatine, that we would have to take
legal action.’’ Tenuta had previously attempted to talk to
Bedford Park Terminal Manager Jerald Clements about Pala-
tine, but Clements refused, referring him to Respondent’s at-
torney, and stating ‘‘Let our attorneys talk to each other.’’
Tenuta himself never requested recognition at Palatine and
Attorney Charone did not testify in the case. There is no evi-
dence of any letter requesting recognition, or any interchange
between Charone and the Respondent’s attorney. The
Union’s chief concern at the time appeared to have been how
the Bedford Park unit would be affected and the transfer
rights of the unit’s local drivers. No matter how hard I
squeeze the record in this case, I cannot find that the General
Counsel has met his burden of proving, by a preponderance
of the evidence, that the Union requested recognition at the
Palatine terminal. To infer a request from Tenuta’s conversa-
tion with Clements (in which Tenuta admittedly did most or
all of the talking) would be an improper inference in my
opinion, and the record is moot as to what, if any, steps or
actions attorney Charone took in an attempt to secure rec-
ognition. Further, to dispense with the necessity of a request
in this case because of alleged futility would also be im-
proper. Although Clements did refuse to talk to Tenuta about
Palatine, he referred Tenuta to the Respondent’s attorney and
suggested that both attorneys confer about the matter.
For the foregoing reasons, I shall recommend that the alle-
gation contained in paragraph VIII of the complaint be dis-
missed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By failing and refusing to bargain or negotiate with the
Union regarding the effects of opening the Palatine terminal
on members, or former and transferred members, of the unit
of local drivers at its Bedford Park terminal, the Respondent
violated Section 8(a)(1) and (5) of the Act.
4. That the Respondent has not otherwise violated the Act.
5. That the unfair labor practice found in paragraph 3,
above, affects commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice, I shall recommend that it be ordered to cease
and desist therefrom and take affirmative action designed to
effectuate the policies of the Act, including the posting of an
appropriate ‘‘Notice to Employees,’’ to be posted at both the
Bedford Park and Palatine terminals. I find that the unfair
labor practice committed by the Respondent, when consid-
ered in the light of its previous violations at the Bedford
Park location, requires a broad ‘‘cease and desist’’ order, and
I shall so recommend. Hickmott Foods, 242 NLRB 1357
(1979).
[Recommended Order omitted from publication.]